Opinion
Civil Action No. SA-98-CA-0193 NSN
November 15, 1999
ORDER
The matter before the Court is plaintiff's motion for leave to file his second amended complaint. Plaintiff, through the assistance of newly-appointed counsel, seeks to add a healthcare liability claim against one of the defendants, nurse Ernestine Carroll under the Texas Medical Liability and Insurance Improvement Act ("the Act"). Defendant Carroll, in essence, opposes the amendment on two grounds: (1) the amendment would be futile because the healthcare liability claim is barred by limitations; and in addition, it fails to comply with the notice requirements of the Act; and (2) Defendant Carroll would be unduly prejudiced by the amendment at this juncture of the case. Plaintiff filed this civil rights lawsuit on March 11, 1998 pursuant to 42 U.S.C. § 1983, alleging, in sum, that his Eighth Amendment rights against cruel and unusual punishment were violated by defendants when they deprived him of medical care on or about March 6, 1996.
Docket no. 73 at 1-2.
TEX. REV. CIV. STAT. ANN. art. 4590i, § 1.03(a) (Vernon Supp. 1999).
Docket no. 74 at 1-3.
Docket no. 44 (First Amended Complaint).
Rule 15(a) of the Federal Rules of Civil Procedure provides that once a responsive pleading is filed, a party may amend his pleadings only by leave of court or by written consent of the adverse party and that leave "shall be freely given when justice so requires." While amendments should be liberally allowed, leave to amend is not automatic. The decision to grant or deny a motion for leave to amend lies within the sound discretion of the trial court. Reasons which would justify denial of a motion to amend include unnecessary delay, bad faith or dilatory motive on the part of the party seeking the amendment, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party caused by the allowance of the amendment, and futility of the amendment. For the reasons discussed below, I find that plaintiff's proposed amendment to the complaint is futile because the healthcare liability claim against Defendant Carroll is barred by limitations.
FED. R. Civ. P. 15(a). See pF.D.I.C. v. Conner 20 F.3d 1376, 1385 (5th Cir. 1994).
Halbert v. City of Sherman. Texas, 33 F.3d 526, 529 (5th Cir. 1994); Addington v. Farmer's Elevator Mut. Ins. Co., 650 F.2d 663, 666 (5th Cir.), cert. denied, 454 U.S. 1098 (1981); Clauder v. Sears, Roebuck and Company., 805 F. Supp. 445, 447 (ED. Tex. 1992).
Id. See also Overseas Inns S.A.P.A. v. United States, 911 F.2d 1146, 1150 (5th Cir. 1990).
Foman v. Davis, 371 U.S. 178, 182 (1962).
Article 4590i, section 10.01 of the Act governs medical malpractice claims. This section provides that "[n]otwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort. . . ." The term "action" under § 10.01 of the Act has been interpreted by Texas courts to mean "suit" rather than "health care liability claim" or "cause of action" which may be added to a complaint by amendment after the running of the statute of limitations if the suit was timely filed. When the precise date of the tort is known, as in this case, the statutory two-year period begins on that date. The statute imposes an absolute two-year statute of limitations irrespective of when an injured party learns of the injuries. The statute abolishes the discovery rule in cases governed by article 4590i. A person may extend the two-year period for seventy-five days by giving notice of a claim under § 4.01 of article 4590i. An untimely notice under article 4590i, section 4.01 does not extend the filing deadline.
TEX. REV. CIV. STAT. ANN. art. 4590i, § 10.01 (Vernon Supp. 1999) (emphasis added).
See Bradley v. Etessam, 703 S.W.2d 237, 241-43 (Tex.App.Dallas — 1985, writ ref'd n.r.e.) (noting that article 4590i, § 1.03(b) of the Act directs that any undefined legal term should be construed consistent with its common law meaning) (citations omitted).
See Kimball v. Brothers, M.D., 741 S.W.2d 370, 372 (Tex. 1987); and Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex. 1996).
Burgess, 917 S.W.2d at 793 (citing Morrison v. Chan, 699 S.W.2d 205, 208 (Tex. 1985)).
Id .
TEX. REV. CIV. STAT. ANN. art. 4590i, § 4.01(c).
Burgess, 917 S.W.2d at 793 (citing Shook v. Herman, 759 S.W.2d 743, 746 (Tex.App.-Dallas 1988, writ denied)).
Here, plaintiff filed his lawsuit two years and 6 days after the occurrence of the breach of tort, which according to his first amended complaint occurred on March 6, 1996. In other words, plaintiff had two years from March 6, 1996, the date of the breach or tort, to file his suit (or March 5, 1998). Plaintiff failed to do that. Because plaintiff filed suit on March 11, 1998 (6 days too late), his claim is barred by the two-year statute of limitations. Moreover, plaintiff cannot avail himself of the seventy-five day extension because his notice to Defendant Carroll regarding the healtheare liability claim as required by § 4.01 was untimely.
See Casey v. Methodist Hospital, 907 S.W.2d 898, 903 (Tex.App.-Houston (1st Dist] 1995, no writ) (court affirmed summary judgment on plaintiff's healthcare liability claim because it was filed 4 days after the expiration of the two-year limitations period); and Rivera v. Mitchell, 764 S.W.2d 393, 394 (Tex.App.-El Paso 1989, no writ) (holding that two-year statute of limitations for health care liability claims barred patient's action).
Docket no. 73, Exhibit A.
Accordingly, Plaintiff's Motion for Leave to File his Second Amended Complaint to add a healtheare liability claim under art. 4590i of the Act (docket no. 73) is DENIED.