Statutes of Limitations
No medical malpractice action may be brought more than two years from the date of the breach or tort or from the completion of treatment. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 10.01 (West Supp. 1998). If an injury results from a negligent course of treatment, rather than a specific instance of negligence, the limitations period begins on the last date of treatment, but if the precise date of the breach or tort is ascertainable, the limitations period begins on that date. Bala v. Maxwell, 909 S.W.2d 889 (Tex. 1995). If the period begins before a claimant has reached the age of eighteen, however, an action may be brought at any time until the claimant's twentieth birthday. Weiner v. Wasson, 900 S.W.2d 316 (Tex. 1995) (holding unconstitutional that part of the statute extending time for minors under twelve only until their fourteenth birthdays). Recent case law holds that the foregoing medical malpractice statute of limitations, not the wrongful death statute of limitations, Tex. Civ. Prac. & Rem. Code Ann. § 16.003(b) (West 1986), applies to claims brought for malpractice resulting in death. Bala v. Maxwell, 909 S.W.2d 889 (Tex. 1995).
The Supreme Court has made it clear in recent cases that under § 10.01 an action does not accrue at the time of discovery and that the discovery rule formerly applied by the courts has been revoked. However, it has granted that in certain cases (not including death cases) application of § 10.01 to bar a claim before it could reasonably be discovered would be unconstitutional because it would unreasonably deprive a plaintiff of the opportunity to exercise a well-recognized common law right. See Diaz v. Westphal, 941 S.W.2d 96 (Tex. 1997); Baptist Memorial Hospital System v. Arredondo, 922 S.W.2d 120 (Tex. 1996).