                               Fourth Court of Appeals
                                      San Antonio, Texas
                                             OPINION
                                         No. 04-14-00803-CV

                       Juan Francisco MONTALVO, M.D., F.A.C.O.G., et al.,
                                          Appellants

                                                   v.

                                           Gabriela LOPEZ,
                                               Appellee

                      From the 341st Judicial District Court, Webb County, Texas
                                Trial Court No. 2013-CVT-000841-D3
                             Honorable Beckie Palomo, Judge Presiding

Opinion by:       Sandee Bryan Marion, Chief Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: April 8, 2015

AFFIRMED

           Appellee Gabriela Lopez filed the underlying lawsuit alleging health care liability claims

against appellants Juan Francisco Montalvo, M.D., F.A.C.O.G., Winder N. Vasquez, M.D., Miguel

E. Najera, J.D., Executor of the Estate of Miguel E. Najera, M.D., Deceased, and Laredo Regional

Medical Center, L.P. d/b/a Doctors Hospital of Laredo. The appellants moved for summary

judgment asserting Lopez’s claims were barred by the limitations provision set forth in section

74.251 of the Texas Civil Practice and Remedies Code. Lopez responded that the limitations

provision is unconstitutional as applied to a minor, and her lawsuit was timely filed based on the
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tolling provisions contained in sections 16.001 and 74.051 of the Code. The trial court denied the

appellants’ motions for summary judgment, and this court granted appellants permission to appeal

the trial court’s interlocutory orders. See TEX. R. APP. P. 28.3. On appeal, the appellants contend

the trial court erred in denying their motions for summary judgment because: (1) the two-year

limitations period contained in section 74.251(a) of the Code is not unconstitutional as applied to

minors; and, in the alternative (2) Lopez is not entitled to use the tolling provision contained in

section 74.051 to further toll the statute of limitations. We affirm the trial court’s orders.

                                       STATEMENT OF FACTS

        Lopez filed the underlying health care liability claims against the appellants based on

treatment she received from December 11, 2005 to December 17, 2005, when she was twelve years

of age. Lopez turned eighteen on March 11, 2011, and served written notice of her claims on

March 8, 2013. Lopez then filed the underlying lawsuit on March 17, 2013.

        In their motions for summary judgment, the appellants asserted that Lopez’s claims were

barred by the two-year limitations provision set forth in section 74.251 of the Code because she

failed to file her lawsuit by December 17, 2007, two years after the date of her last treatment.

Lopez responded that she was a minor at the time of her treatment; therefore, the two-year

limitations provision is unconstitutional as applied to her. Lopez contends that because she timely

served written notice of her claims on March 8, 2013, she timely filed her lawsuit before the

applicable limitations period expired on March 22, 2013, or two years and seventy-five days after

she turned eighteen. The appellants replied that Lopez’s claims were untimely filed, even

assuming the limitations provision in section 74.251 is unconstitutional as applied to her, because

she is not also entitled to the additional seventy-five day tolling period set forth in section 74.051(c)

of the Code.



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          The trial court denied the appellants’ motions, and we granted the appellants permission to

appeal.

                                       STANDARD OF REVIEW

          “We review a trial court’s grant of summary judgment de novo.” Frost Nat’l Bank v.

Fernandez, 315 S.W.3d 484, 508 (Tex. 2010). “A defendant moving for summary judgment on

the affirmative defense of limitations has the burden to conclusively establish that defense.”

Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). “If the movant

establishes that the statute of limitations bars the action, the nonmovant must then adduce summary

judgment proof raising a fact issue in avoidance of the statute of limitations.” Id. “When

reviewing a summary judgment, we take as true all competent evidence favorable to the

nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s

favor.” Id.

                CONSTITUTIONALITY OF SECTION 74.251(A) AS APPLIED TO MINORS

          The appellants initially contend the trial court erred in denying their motions for summary

judgment because Lopez failed to meet her burden of establishing that the limitations period in

section 74.251(a) of the Code is unconstitutional as applied to minors. Based on this court’s

holding in Adams v. Gottwald, 179 S.W.3d 101 (Tex. App.—San Antonio 2005, pet. denied), we

disagree.

          In Adams, fourteen-year-old Sage Adams underwent dental treatment in November and

December of 2000. 179 S.W.3d at 102. In November of 2003, Sage’s parents sued the dentist and

her professional corporation for medical malpractice. Id. The dentist and her professional

corporation moved for summary judgment based on the limitations provision set forth in section

74.251(a) of the Code, and the trial court granted the motion. Id.



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       On appeal, the Adamses argued the trial court erred in granting the motion for summary

judgment because the limitations provision set forth in section 74.251 violated the open courts

provision contained in article I, section 13 of the Texas Constitution. Id. at 102-03; see also TEX.

CONST. art I, § 13 (“All courts shall be open, and every person for an injury done him, in his lands,

goods, person or reputation, shall have remedy by due course of law.”). This court first noted

section 74.251 provided:

       Notwithstanding any other law, and subject to subsection (b), no health care
       liability claim may be commenced unless the action is filed within two years from
       the occurrence of the breach or tort or from the date the medical or health care
       treatment that is the subject of the claim or the hospitalization for which the claim
       is made is completed; provided that, minors under the age of 12 years may have
       until their 14th birthday in which to file, or have filed on their behalf, the claim.
       Except as herein provided, this section applies to all persons regardless of minority
       or any other legal disability.

Id. at 103 (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 74.251 (West 2003)). This court then

noted section 74.251 was virtually identical to section 10.01 of the Medical Liability Act which

the Texas Supreme Court held was unconstitutional when applied to a minor because it violated

the open courts provision of the Texas Constitution. Id. (citing Weiner v. Wasson, 900 S.W.2d

316, 318 (Tex. 1995) and Sax v. Votteler, 648 S.W.2d 661, 665-67 (Tex. 1983)). Concluding that

this court was bound by Sax and Weiner, this court held “that, as applied to minors like Sage

Adams, section 74.251 of the [Code] is unconstitutional under the open courts provision contained

in article I, section 13 of the Texas Constitution.” Id.

       The appellants attempt to distinguish Adams by asserting the Adamses filed their lawsuit

well before Sage’s 20th birthday and by referencing the “major overhaul of malpractice law”

undertaken by the Legislature in 2003. First, we note Adams was decided in 2005, which was two

years after the “major overhaul” of the law. Second, the language of section 74.251 has not

changed since our decision in Adams. Finally, section 16.001 tolls limitations until a minor reaches


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the age of 18; therefore, the filing of a lawsuit asserting a health claim liability claim has the same

effect if the lawsuit is filed at any time on or before the minor’s 20th birthday. See TEX. CIV.

PRAC. & REM. CODE ANN. § 16.001 (West 2002). Accordingly, we reaffirm our prior decision in

Adams and hold the limitations period set forth in section 74.251 is unconstitutional as applied to

minors like Lopez under the open courts provision of the Texas Constitution.

                                     SECTION 74.051 TOLLING

       The appellants further contend that even if the two-year limitations period set forth in

section 74.251 is unconstitutional as applied to minors, Lopez’s claims are still barred because she

did not file suit until after her 20th birthday. The appellants acknowledge that Lopez sent pre-suit

notice letters three days before her 20th birthday; however, the appellants assert Lopez filed her

lawsuit 67 days after her 20th birthday, and they argue Lopez is not entitled to the additional 75-

day tolling period set forth in section 74.051 of the Code. Despite their argument, the appellants

acknowledge, “No Texas court has directly addressed whether a minor who is allowed to toll

accrual of limitations until her 18th birthday through Chapter 16 of the [Code] (giving her until

her 20th birthday to file suit) is allowed an additional 75-day tolling period based on pre-suit

notice.”

       Section 74.051(a) of the Code requires a person asserting a health care liability claim to

give written notice of the claim, accompanied by the authorization form for release of protected

health information required under section 74.052, to each physician or health care provider against

whom such claim is being made at least 60 days before the filing of a lawsuit asserting the claim.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.051(a) (West 2011). Section 74.051(c) provides: “Notice

given as provided in this chapter shall toll the applicable statute of limitations to and including a

period of 75 days following the giving of the notice, and this tolling shall apply to all parties and

potential parties.” Id. at § 74.051(c). The purpose of the pre-suit notice is to encourage pre-suit
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negotiation and settlement, thereby reducing litigation costs. See Tex. West Oaks Hosp., LP v.

Williams, 371 S.W.3d 171, 189 (Tex. 2012); Jose Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d

68, 73 (Tex. 2011).

       In support of their argument that the 75-day tolling period does not apply to Lopez’s

lawsuit, the appellants first argue that the Austin court’s opinion in Medina v. Lopez-Roman, 49

S.W.3d 393 (Tex. App.—Austin 2000, pet. denied), suggests that it does not. In Medina, the

plaintiff sustained an injury on March 3, 1994, when he was fifteen. 49 S.W.3d at 395-96. The

plaintiff turned eighteen on April 3, 1996, and filed suit on April 3, 1998. Id. at 396. The

defendants argued the lawsuit was barred by limitations because the limitations period expired at

midnight on April 2, 1998. Id. at 397. The Austin court rejected this argument, adopting “the

more logical computation method whereby one looks at the calendar day that a minor attains

majority and then uses the corresponding date two years later.” Id. The court held the plaintiff

timely filed the lawsuit because he “filed suit on April 3, 1998, two years after his eighteenth

birthday.” Id. at 399. Because the court held the suit was timely filed, it did not even consider

whether the 75-day tolling period would apply given that the plaintiff provided the defendants with

pre-suit notice. Accordingly, we disagree that Medina supports the appellants’ argument.

       The appellants next respond to an argument Lopez made in her summary judgment

response that the purpose of the pre-suit notice provision would be undermined if she did not

receive the benefit of that provision. The appellants contend Lopez already had the benefit of an

extended negotiation period based on the tolling under section 16.001, and no additional tolling

was necessary to satisfy the purpose of the pre-suit notice provision. We disagree with appellants’

contention. The tolling under section 16.001 is intended to provide a minor with additional time

in which to pursue her claims. It is not designed to trigger negotiation between the parties.



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Accordingly, we conclude tolling under section 16.001 does not satisfy the purpose of the pre-suit

notice.

          Finally, the appellants argue the “applicable statute of limitations” that the pre-suit notice

provision is intended to toll is the limitations period set forth in section 74.251. However, section

74.051(c) does not refer to the “applicable statute of limitations set forth in section 74.251,” and

to construe section 74.051(c) in the manner suggested by the appellants would require this court

to engraft language into the statute. If we were to do so, we would run afoul of the “general rule

that courts should not insert words in a statute except to give effect to clear legislative intent.”

Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995). In this

case, appellants have provided no clear legislative intent to limit the 75-day tolling period in the

manner suggested. Moreover, appellants do not suggest that Lopez was not required to provide

the pre-suit notice mandated by section 74.051(a) which triggers the tolling under section

74.051(c). Therefore, we hold the limitations period applicable to Lopez’s claims was tolled by

her pre-suit notice. Accordingly, her claims were timely filed.

                                             CONCLUSION

          The trial court’s orders denying the appellants’ motions for summary judgment are

affirmed.

                                                     Sandee Bryan Marion, Chief Justice




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