                IN THE SUPREME COURT OF TEXAS
                                         444444444444
                                            NO . 13-0096
                                         444444444444


 TENET HOSPITALS LIMITED, A TEXAS LIMITED PARTNERSHIP D/B/A PROVIDENCE
    MEMORIAL HOSPITAL, AND MICHAEL D. COMPTON, M.D., PETITIONERS
                                                  v.


            ELIZABETH RIVERA, AS NEXT FRIEND FOR M.R., RESPONDENT

           4444444444444444444444444444444444444444444444444444
                             ON PETITION FOR REVIEW FROM THE
                     COURT OF APPEALS FOR THE EIGHTH DISTRICT OF TEXAS
           4444444444444444444444444444444444444444444444444444


                                    Argued February 4, 2014


       JUSTICE GUZMAN delivered the opinion of the Court in which CHIEF JUSTICE HECHT ,
JUSTICE GREEN , JUSTICE JOHNSON , JUSTICE WILLETT , JUSTICE BOYD , JUSTICE DEVINE, and JUSTICE
BROWN joined.

       JUSTICE LEHRMANN filed a dissenting opinion.


       Our Constitution must strike a delicate balance between the pre-existing rights of individuals

and the state’s need to abridge those rights to achieve important public policy objectives. This

appeal raises such questions of balance through a challenge to the statute of repose in the Medical

Liability Act. In 2003, the Legislature enacted the Medical Liability Act to lower the escalating cost

of medical malpractice insurance premiums and increase access to health care. The Act contains a
statute of repose that operates to bar claims not brought within ten years of the date of the medical

treatment.

        Here, alleged negligence occurred during the birth of a child in 1996. Under the 2003 repose

statute, a suit on this negligence claim must be filed by 2006. In 2004, an attorney for the mother

notified the hospital of the minor’s claim, but no suit was filed until 2011, five years after the repose

statute’s deadline. The hospital moved for summary judgment on the ground that the repose statute

barred the claim, and the mother responded that the repose statute violates the open courts and

retroactivity provisions of the Texas Constitution. We overrule both constitutional challenges.

        The open courts challenge fails due to the mother’s lack of diligence in filing suit. In this

context, an open courts challenge contends that the claimant had an insufficient opportunity to bring

suit. It is well-established in our jurisprudence that such open-courts challengers must themselves

be diligent in bringing suit. The mother cannot meet this requirement because she was aware of the

claim one year into her three-year period to bring the claim but waited over six additional years to

file suit. The mother’s retroactivity challenge also fails because a compelling public purpose

justified the legislation and granted her a three-year grace period to file suit. Because the court of

appeals found in the mother’s favor on her open courts challenge, we reverse the court of appeals’

judgment and render judgment that the plaintiff take nothing.




                                                   2
                                                     I. Background

         In 1996, Elizabeth Rivera was nine months pregnant with her daughter, M.R., when she

visited the emergency room of Providence Hospital1 with a cough and fever. Dr. Michael Compton

assessed Rivera and discharged her. The following day, Rivera noticed decreased fetal movement

and returned to the hospital, where M.R. was delivered via emergency C-section. M.R. lacked

oxygen and has permanent neurological disabilities. Rivera claims this injury resulted from the

hospital and Dr. Compton’s failure to properly assess and monitor her and notify her OB/GYN.

         Seven years after the medical treatment at issue (in 2003), the Legislature enacted a ten-year

statute of repose for the Medical Liability Act, which provides:

         A claimant must bring a health care liability claim not later than 10 years after the
         date of the act or omission that gives rise to the claim. This subsection is intended
         as a statute of repose so that all claims must be brought within 10 years or they are
         time barred.

Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 872 (current

version at TEX . CIV . PRAC. & REM . CODE § 74.251(b)). Thus, when the repose statute became law,

M.R.’s claim needed to be brought within three years to avoid the claim being barred by the statute

of repose.2




         1
           Providence Hospital is the d/b/a for Tenet Hospitals Limited, LP. The hospital and Dr. Michael Compton are
collectively referred to in this opinion as “the hospital.”

         2
             Neither party discusses the effect of limitations on M.R.’s claim, and we therefore express no opinion on that
issue.

                                                              3
         In August 2004, Rivera’s lawyer sent the hospital the statutorily required notice of a health

care liability claim,3 but only filed suit (on M.R.’s behalf) in March 2011—five years after the repose

statute barred the claim and six-and-a-half years after Rivera sent pre-suit notice of the claim. The

hospital and Dr. Compton moved for summary judgment based on the statute of repose and the trial

court granted the motion. The court of appeals reversed, holding that the statute of repose violated

the open courts provision as applied to M.R. 392 S.W.3d 326, 333. We granted the hospital and Dr.

Compton’s petitions for review.4

                                                     II. Discussion

         Rivera poses open courts and retroactivity challenges to the repose statute as independent

bases for affirming the court of appeals. Regarding the open courts challenge, Rivera claims the

repose statute is similar to previous statutes of limitations we held to be unconstitutional as applied

to minors.         Regarding the retroactivity challenge, Rivera contends the repose statute is

unconstitutionally retroactive because it extinguished M.R.’s claim before she could reach the age

of majority. We address each constitutional challenge in turn. In doing so, we are mindful that we




         3
          Under the Medical Liability Act, anyone asserting a health care liability claim must give written notice to the
physician or health care provider at least sixty days before filing suit. T EX . C IV . P RAC . & R EM . C O D E § 74.051(a).

         4
          At the petition stage, the Texas Alliance for Patient Access, the Texas Medical Association, the Texas Hospital
Association, the American Congress of Obstetricians and Gynecologists, the Texas Children’s Hospital, and the Texas
Osteopathic Medical Association jointly submitted an amicus brief supporting the hospital.

                                                             4
begin assessing a constitutional challenge with a presumption that the statute is valid5 and do not

defer to lower court constructions of statutes.6

         The distinction between facial and as-applied challenges also bears mentioning because we

consider bother Rivera’s challenges to be as-applied challenges. A facial challenge claims that a

statute, by its terms, always operates unconstitutionally. United States v. Salerno, 481 U.S. 739, 745

(1987); Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 518 (Tex. 1995). By contrast,

an as-applied challenge asserts that a statute, while generally constitutional, operates

unconstitutionally as to the claimant because of her particular circumstances.7 City of Corpus Christi

v. Pub. Util. Comm’n of Tex., 51 S.W.3d 231, 240 (Tex. 2001); Garcia, 893 S.W.2d at 518 n.16.

         Both of Rivera’s constitutional challenges here (open courts and retroactivity) are as-applied

challenges. Her open courts challenge does not claim the repose statute operates unconstitutionally

as to all persons, and we have previously held open courts applied constitutionally to an adult who

could not discover her claim before the repose statute barred it.8 Methodist Healthcare Sys., Ltd.,



         5
            See Robinson v. Crown Cork & Seal Co., 335 S.W .3d 126, 146 (Tex. 2010) (“To be sure, courts must be
mindful that statutes are not to be set aside lightly.”); Sax v. Votteler, 648 S.W .2d 661, 664 (Tex. 1983) (“W e recognize
that ‘[i]n passing upon the constitutionality of a statute, we begin with a presumption of validity.’” (quoting Smith v.
Davis, 426 S.W .2d 827, 831 (Tex. 1968)) (alteration in original)).

         6
             City of San Antonio v. City of Boerne, 111 S.W .3d 22, 25 (Tex. 2003).

         7
            As we have observed previously, “the line between facial and as-applied challenges is not so well defined that
it has some automatic effect.” In re Nestle USA, Inc., 387 S.W .3d 610, 617 (Tex. 2012) (quotation marks omitted); see
also id. at 617 n.76 (observing that “‘courts remain hopelessly befuddled in this area’” (quoting Scott A. Keller & Misha
Tseytlin, Applying Constitutional Decision Rules Versus Invalidating Statutes in Toto, 98 V A . L. R EV . 301, 312 (2012))).

         8
          Rivera asserts that the repose statute is unconstitutional “as applied to children injured by medical negligence
before their eighth birthday.” This framing unnecessarily blurs the line between facial and as-applied challenges.
Because Rivera contends in neither constitutional challenge that the repose statute always operates unconstitutionally,
her challenges are as-applied to her circumstances only.

                                                             5
L.L.P. v. Rankin, 307 S.W.3d 283, 292 (Tex. 2010); see Yancy v. United Surgical Partners Int’l, Inc.,

236 S.W.3d 778, 786 (Tex. 2007) (treating an open courts challenge as an as-applied challenge).

Likewise, Rivera’s retroactivity challenge is an as-applied challenge because it contends the repose

statute is unconstitutionally retroactive as to M.R.’s claim based upon the particular circumstances

of her situation. See Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126, 147 (Tex. 2010)

(treating a retroactivity challenge as an as-applied challenge). With this background in mind, we turn

to the substance of Rivera’s constitutional challenges.

                                           A. Open Courts

       In Weiner v. Wasson9 and Sax v. Votteler10, we held statutes of limitations requiring minors

to bring medical malpractice suits by a certain age violated the open courts provision. Rivera argues

these decisions compel the conclusion that this repose statute is unconstitutional as applied to M.R.,

who is also a minor. The hospital primarily counters that, because we upheld this repose statute

against an open courts challenge in Rankin, we likewise must do so here.11 We agree with the

hospital’s conclusion that the repose statute does not violate the open courts provision as applied to

M.R., but rely on different reasons.

       The open courts provision of the Texas Constitution provides: “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.” TEX . CONST . art. I, § 13. This requirement “guarantees that a common law


       9
           900 S.W .2d 316 (Tex. 1995).

       10
            648 S.W .2d 661 (Tex. 1983).

       11
            307 S.W .3d 283 (Tex. 2010).

                                                  6
remedy will not be unreasonably abridged.” Garcia, 893 S.W.2d at 521. This guarantee operates

quite differently from a tolling provision. Yancy, 236 S.W.3d at 784. Tolling provisions generally

defer accrual of a claim until the plaintiff knew, or in the exercise of reasonable diligence should

have known, the facts giving rise to the claim. Id. (citing HECI Exploration Co. v. Neel, 982 S.W.2d

881, 886 (Tex. 1998)). By contrast, “the open courts provision merely gives litigants a reasonable

time to discover their injuries and file suit,” and courts must determine what constitutes a reasonable

time frame. See id. In short, an open courts challenge is a due process complaint and requires the

party to use due diligence. Id. at 785. Procedurally, the party raising the open courts challenge

“must raise ‘a fact issue establishing that he did not have a reasonable opportunity’ to be heard.”

Stockton v. Offenbach, 336 S.W.3d 610, 618 (Tex. 2011) (quoting Yancy, 236 S.W.3d at 785).

       We have interpreted this due diligence requirement three times in the past two decades, and

these precedents guide our analysis here. First, in Shah v. Moss, Moss sued Shah for negligence in

performing eye surgery and neglecting to provide adequate post-surgical treatment. 67 S.W.3d 836,

839 (Tex. 2001). When Shah moved for summary judgment on limitations, Moss asserted that the

limitations statute violated the open courts provision. Id. at 840–41. Moss knew about the alleged

injury at least seventeen months before he filed suit but offered no explanation for his delay. Id. at

847. Thus, we concluded that, as a matter of law, Moss failed to file suit within a reasonable time

after discovering his injury. Id.

       Six years after we decided Shah, we addressed a case with facts more closely aligned with

those presented here. In Yancy, Yates suffered cardiac arrest when undergoing a procedure to

remove kidney stones. 236 S.W.3d at 780. She was resuscitated but remained comatose after the

                                                  7
procedure. Id. Some nineteen months later, Yates’s guardian sued two defendants and waited

another twenty-two months to sue two additional defendants. Id. The additional defendants moved

for summary judgment on limitations, to which the guardian raised an open courts challenge. Id.

Relying on Shah, we overruled the open courts challenge because the guardian offered no

explanation for waiting twenty-two months after filing her petition to sue the additional defendants.

Id. at 785. Specifically, we observed that the guardian

        knew of [Yates’s] condition and retained a lawyer well within the limitations period.
        On this record, there is no fact issue establishing that [the guardian] . . . sued within
        a reasonable time after discovering the alleged wrong. Thus, the open courts
        provision does not save Yates’s time-barred negligence claims.

Id. We acknowledged precedent indicating that a statute requiring an incapacitated plaintiff to give

pre-suit notice would “require an impossible thing.” Id. at 786 (citing Tinkle v. Henderson, 730

S.W.2d 163, 167 (Tex. App.—Tyler 1987, writ ref’d)). But we concluded the limitations statute

there did not require an impossible thing of Yates, who had a guardian, retained a lawyer, and filed

suit within the limitations period. Id. We opined that, because the limitations statute was

constitutional as applied to Yates, “there is no need to strike it down because it might operate

unconstitutionally in another case.” Id.

        Most recently, in Stockton, a mother of a minor with a health care liability claim raised an

open courts challenge to the Medical Liability Act’s 120-day deadline to serve an expert report. 336

S.W.3d at 617–18. There, Stockton was unable to serve the report on a defendant and filed a motion

forty days after filing suit to request substituted service for the report. Id. at 618. However, Stockton

did not alert the trial court to the impending expert report deadline, and the court granted the motion


                                                   8
four months later after requesting additional information. Id. at 617. We held that Stockton did not

raise a fact issue concerning her due diligence and overruled her open courts challenge. Id. at

617–18. Notably, the fact that she was a next friend of her minor child did not prevent this Court

from imputing her lack of diligence to her child. Id.

        In sum, we have found delays of four months,12 seventeen months,13 and twenty-two months14

to constitute a lack of due diligence as a matter of law—such that an open courts challenge must fail

at summary judgment. Additionally, a guardian’s lack of diligence may operate to bar a legally

incompetent person’s open courts challenge. Yancy, 236 S.W.3d at 785. And a next friend’s lack

of due diligence may operate to bar a minor child’s open courts challenge. Stockton, 336 S.W.3d

at 617–18.

        Here, Rivera acted as the M.R.’s next friend. In 2004, a lawyer for Rivera sent the hospital

the statutorily required notice of M.R.’s health care liability claim, but Rivera waited over six-and-a-

half years to file suit (represented by the same lawyer). This period of time is fifteen times the four

months we found constituted a lack of diligence in Stockton,15 over five times the seventeen months

in Shah,16 and almost three times the twenty-two months in Yancy.17 And as in Stockton, Yancy, and



       12
            Stockton, 336 S.W .3d at 617–18.

       13
            Shah, 67 S.W .3d at 847.

       14
            Yancy, 236 S.W .3d at 785.

       15
            336 S.W .3d at 617–18.

       16
            67 S.W .3d at 847.

       17
            336 S.W .3d at 785.

                                                   9
Shah, the plaintiff has offered no explanation for her delay in filing suit. Moreover, similar to Yancy,

the repose statute did not deprive M.R. of her opportunity to be heard because she gave statutory pre-

suit notice of her claim two years before the repose statute barred it.18 See Yancy, 236 S.W.3d at

785–86 (concluding that a statute did not deprive a legally incompetent person of her opportunity

to be heard because she had a guardian, retained a lawyer, and filed suit against some defendants

within the limitations period). Accordingly, on this record, there is no fact issue establishing that

Rivera (on M.R.’s behalf) “did not have a reasonable opportunity to discover the alleged wrong and

bring suit before the repose statute barred her claim or that she sued within a reasonable time after

discovering the alleged wrong.” Id. at 785. Accordingly, the open courts provision cannot revive

M.R.’s time-barred claim. See id.

         Rivera argues we should not impute any lack of diligence on her part to M.R. But our

precedents have required due diligence of a next friend raising an open courts challenge on behalf

of a minor in Stockton, 336 S.W.3d at 617–18, as well as of the guardian of a legally incompetent

person raising an open courts challenge in Yancy, 236 S.W.3d at 785–86. Rivera offers us no

compelling reason to overturn either decision. And the consistency of these decisions is well-

founded. The law, our precedent, and our rules of procedure all treat minors and legally incompetent

persons alike as lacking the legal capacity to sue, such that they must appear in court through a legal

guardian, a next friend, or a guardian ad litem. See TEX . CIV . PRAC. & REM . CODE § 16.001

(classifying persons under 18 years of age and persons of unsound mind as being under a legal


         18
              Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 872 (current version at T EX .
C IV . P RAC . & R EM . C O D E § 74.251(b)).

                                                             10
disability); TEX . R. CIV . P. 44, 173; Austin Nursing Center v. Lovato, 171 S.W.3d 845, 849 (Tex.

2005).19 Indeed, our precedent reveals only one instance discussing minors and incompetent persons

differently, and it poignantly observed that minors and legally incompetent persons are treated

comparably, but that incompetent persons are deserving of perhaps even greater protections. Tinkle,

730 S.W.2d at 166.20

         We must note the fact that the similar treatment of minors and legally incompetent persons

does not necessarily mean next friends or parents and guardians are treated similarly. There are

specific procedures for guardians that do not apply to next friends. For example, guardians: are

court-appointed,21 act as fiduciaries on behalf of the legally incompetent person,22 need not post

security for costs in suits brought on behalf of the legally incompetent person,23 generally must post


         19
            See also T EX . H EALTH & S AFETY C O D E § 611.004(a)(4) (treating minor’s and legally incompetent persons
similarly for purposes of disclosing certain confidential information); T EX . L AB . C O D E § 403.007 (treating workers’
compensation death benefits payable to minors and legally incompetent persons similarly).

         20
            Tinkle, 730 S.W .2d at 166 (“It is impossible to avoid the analogy between the situation of the child plaintiff
in Sax and the arguably incompetent plaintiff in this case. Traditionally the interests of minors, incompetents, and other
helpless persons are viewed in law as substantially similar, and both the substantive law and the rules of procedure accord
them comparable treatment. In many respects, mentally incompetent persons present a more compelling case for legal
protection. They are frequently less communicative, more vulnerable and dependent than children. . . . The mentally
incompetent are less likely than children to have someone intimately interested in their welfare and inclined to act in their
behalf.”). W e note that the record here describes M.R.’s condition as such that she might need a guardian when she
reaches the age of majority. Because the law treats minors and legally incompetent persons similarly, such a change in
legal status would not affect our holding.

         21
           T EX . E ST . C O DE § 1001.001 (formerly T EX . P RO B . C OD E § 602) (“A court may appoint a guardian with full
authority over an incapacitated person . . . .”).

         22
           Id. §§ 1053.052 (formerly T EX . P RO B . C OD E § 622) (discussing guardian’s fiduciary capacity), 1105.051
(formerly T EX . P RO B . C OD E § 700) (establishing oath to faithfully discharge duties to a legally incompetent person).

         23
            Id. § 1053.052 (formerly T EX . P RO B . C O DE § 622) (“No security for costs shall be required of a guardian . . .
in any suit brought by the guardian . . . in [her] respective fiduciary capacit[y].”). Rule of Civil Procedure 44 grants next
friends “the same rights concerning such suits as guardians have, but shall give security for costs, or affidavits in lieu
thereof, when required.”

                                                              11
a bond,24 and must annually report on the guardianship to the court that appointed them.25 But if

anything, these technical requirements simply bring guardians in line with the powers and duties that

parents possess. Unlike a guardian, a parent as next friend need not post a bond until possessing

money from a judgment on behalf of a minor.26 But such disparate treatment is largely attributable

to the presumption that fit parents act in the best interest of their children. See In re Derzapf, 219

S.W.3d 327, 333 (Tex. 2007). As a whole, our statutes, rules, and precedent treat guardians and next

friends similarly. See, e.g., TEX . R. CIV . P. 44 (granting next friends the same rights as guardians

except that they must give security for costs). We see no reason today to depart from our

requirement that guardians and next friends use due diligence in bringing suit to sustain an open

courts challenge.27

         Rivera and the hospital both contend that different precedents regarding the reasonableness

of statutory limits to common-law recovery should govern our analysis of the open courts challenge.

Substantively, our longstanding test for whether a law violates the open courts provision is (1) if the

law imposes substitute remedies, whether those remedies are reasonable, or (2) if the law

extinguishes remedies, whether such action is a reasonable exercise of the police power. Lebohm

v. City of Galveston, 275 S.W.2d 951, 955 (Tex. 1955). Rivera contends that under Weiner and Sax,



         24
              Id. §§ 1105.101 (formerly T EX . P RO B . C O D E § 702), 1105.102 (formerly T EX . P ROB . C O D E § 702A).

         25
              Id. § 1163.101 (formerly T EX . P RO B . C O D E § 743).

         26
           T EX . P RO P . C O D E § 142.002 (formerly T EX . P RO B . C O D E § 142.002(a)) (providing for next friend to take
possession of money recovered from a judgment for the minor only after posting a bond).

         27
          For these reasons, we disagree with the court of appeals that any lack of diligence on Rivera’s part could not
be imputed to M.R. 392 S.W .3d at 334.

                                                                12
requiring a minor to sue through a next friend is unreasonable. The hospital asserts that under

Rankin, extinguishing the claim altogether if not filed within ten years is a reasonable exercise of the

police power. Rivera’s assertion that Sax and Weiner control fails for two reasons. First, we need

not assess whether the law was reasonable if the party challenging the law was not diligent. We

never reached the question of whether the statute was reasonable as applied to the claimants in

Stockton, Yancy, and Shah because the claimants in those cases demonstrated a lack of due diligence.

Stockton, 336 S.W.3d at 617–18; Yancy, 236 S.W.3d at 785; Shah, 67 S.W.3d at 847. Second, Sax

and Weiner involved statutes of limitations that expressly applied to minors (that minors must bring

health care claims by age twelve in Sax and age fourteen in Weiner). We held that those statutes

were facially unconstitutional. See Weiner, 900 S.W.2d at 320 (expressly declining to invalidate

statute of limitations for minors on an as-applied basis). By contrast, this statute does not only affect

minors, and Rivera’s constitutional challenge is necessarily an as-applied attack. Thus, we must

consider the circumstances of Rivera’s representation of M.R., including the fact that she hired a

lawyer to send pre-suit notice of the claim two years before the repose statute barred it.

        We likewise disagree with the hospital that Rankin controls this case. Had Rivera exercised

due diligence and the repose statute still barred her claim, we would then be required to assess the

reasonableness of the law. See Rankin, 307 S.W.3d at 285 (assessing the reasonableness of the

repose statute when the plaintiff’s diligence in bringing suit was not at issue). The absence of due

diligence means we need not reach this issue.




                                                   13
                                           B. Retroactivity

        Rivera also challenges the repose statute as unconstitutionally retroactive because it required

M.R. to bring her previously accrued claim before she reached the age of majority. The hospital

counters that the repose statute is not unconstitutionally retroactive because it allowed M.R. three

years after the statute took effect to bring her claim through her next friend. We agree with the

hospital.

        A retroactive law is one that extends to matters that occurred in the past. Robinson, 335

S.W.3d at 138 (“A retrospective law literally means a law which looks backwards, or on things that

are past; or if it be taken to be the same as retroactive, it means to act on things that are past.”

(quoting DeCordova v. City of Galveston, 4 Tex. 470, 475–76 (1849))); Subaru of Am., Inc. v. David

McDavid Nissan, Inc., 84 S.W.3d 212, 219 (Tex. 2002); see also Landgraf v. USI Film Prods., 511

U.S. 244, 270 (1994) (determining for purposes of retroactivity “whether the new provision attaches

new legal consequences to events completed before its enactment.”). Here, the parties concede the

statute is retroactive as applied to M.R. because it established a date to bar her already-accrued claim.

        But not all retroactive statutes are unconstitutional. Robinson, 335 S.W.3d at 138. In

Robinson, we established a three-part test for examining whether retroactive laws are constitutional:

“the nature and strength of the public interest served by the statute as evidenced by the Legislature’s

factual findings; the nature of the prior right impaired by the statute; and the extent of the

impairment.” Id. at 145. This test acknowledges the heavy presumption against retroactive laws by

requiring a compelling public interest to overcome the presumption. Id. at 146. But it also



                                                   14
appropriately encompasses the notion that “statutes are not to be set aside lightly.” Id. We examine

each of the three factors in turn with respect to the repose statute.

        Regarding the public interest, the statute at issue in Robinson was enacted solely to benefit

a single company by reducing its liability in asbestos litigation, which we determined constituted

only a slight public interest. Id. at 146, 150. By contrast, the repose statute here was part of the 2003

Medical Liability Act, which was a comprehensive overhaul of Texas medical malpractice law to

“make affordable medical and health care more accessible and available to the citizens of Texas,”28

and to “do so in a manner that will not unduly restrict a claimant’s rights any more than necessary

to deal with the crisis.”29 The Legislature conducted hearings and gathered evidence of the

increasing costs of malpractice insurance resulting from claims that endured indeterminately. As a

result, the Legislature expressly found that a spike in healthcare liability claims was causing a

malpractice insurance crisis that adversely affected the provision of healthcare services in Texas.30

Unlike the statute in Robinson, there is no indication the statute here was to benefit only a particular

entity; rather, it was aimed at broadening access to health care by lowering malpractice insurance

premiums. We previously concluded this public interest was sufficient to overcome a different

constitutional challenge to this statute. Rankin, 307 S.W.3d at 288 (holding that public interest in

lowering malpractice insurance premiums and increasing access to health care by implementing this




       28
             Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11(b)(5), 2003 Tex. Gen. Laws 847, 884–85.

        29
             Id. § 10.11(b)(3).

        30
             Id. § 10.11(a).

                                                          15
repose statute was a valid exercise of the police power sufficient to overcome an open courts

challenge). It is likewise a compelling public interest with respect to Rivera’s retroactivity challenge.

        But a compelling public interest does not end the retroactivity inquiry. We must balance that

purpose against the nature of the prior right and the extent to which the statute impairs that right.

Regarding the nature of the prior right, we held in Robinson that the personal injury claim at issue

(for mesothelioma) was a mature tort that had a substantial basis in fact due to the discovery in the

case. 335 S.W.3d at 148. Here, M.R.’s claim is mature because claims for medical negligence in

utero are established causes of action in Texas, Brown v. Schwarts, 968 S.W.2d 331, 334 (Tex.

1998), and M.R.’s injury has allegedly come to fruition. But unlike in Robinson, the sparse record

before us fails to provide any indication of the strength of M.R.’s claim. Thus, though the type of

claim M.R. has is clearly established, the strength of her individual claim is unclear.

        Finally, we assess the extent to which the repose statute impaired M.R.’s claim. Before 1996,

when the injury allegedly occurred, there was no statute of repose for medical negligence claims and

a minor had until age twenty to sue before limitations would run (the age of majority plus two years

for limitations). Weiner, 900 S.W.2d at 318–19. Thus, M.R. reasonably had settled expectations

in 1996 that she would have until age twenty to file suit, and the repose statute impaired these settled

expectations. But we have long recognized that the impairment of such a right may be lessened

when a statute affords a plaintiff a grace period to bring her claim, and we observed in Robinson that

“a change in the law need not provide a grace period to prevent an impairment of vested rights.” 335




                                                   16
S.W.3d at 141. We noted that grace periods of two months to sue,31 four years to sue,32 and seven

years to resume pumping water33 had all previously been upheld over retroactivity challenges. Id.

        We have only upheld constitutional retroactivity challenges four times. In two of those cases,

we upheld retroactivity challenges because amendments to statutes of limitations revived claims the

previous statutes barred.34 And in one case, the Legislature extinguished a taxpayer’s valid

limitations defense to a governmental property tax claim by enacting legislation that prevented

taxpayers from raising limitations defenses. Mellinger v. City of Houston, 3 S.W. 249, 254–55 (Tex.

1887). Finally, in Robinson, the statute operated to extinguish Robinson’s mature tort claim against

a particular defendant, despite discovery showing a substantial basis in fact for the claim. 335

S.W.3d at 148. When balanced against a statute that contained no findings and affected only one

defendant, we concluded the “slight” public interest did not justify the impairment to the claims at

issue. Id. at 149.

        Here, M.R. possessed a three-year grace period from the time the repose statute took effect

until it extinguished her claim. We have upheld statutes with shorter grace periods, and we cannot

say the three-year grace period M.R. possessed rendered the statute unconstitutional as applied in

light of its compelling public interest.




        31
             City of Tyler v. Likes, 962 S.W .2d 489, 502 (Tex. 1997).

        32
             DeCordova, 4 Tex. at 470–71.

        33
             Tex. Water Rights Comm’n v. Wright, 464 S.W .2d 642, 644 (Tex. 1971).

        34
          Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W .3d 1, 4 (Tex. 1999); Wilson v. Work, 62 S.W .2d 490,
490–91 (Tex. 1933) (per curiam) (original proceeding).

                                                           17
       Rivera counters that this grace period is meaningless because M.R. could not sue during the

time she was under a legal disability and would have to sue through her next friend. But we cannot

ignore that Rivera brings an as-applied challenge. Thus, the inquiry must be Rivera representing

M.R.—not parents representing children generally. Two facts in this case compel us to reject

Rivera’s retroactivity challenge. First, Rivera knew of M.R.’s claim one year into the three-year

grace period. She demonstrated that knowledge by sending the statutorily-required notice of M.R.’s

claim to the hospital through her lawyer. Thus, Rivera cannot rightfully contend that a three-year

grace period unconstitutionally deprived her of the ability to bring M.R.’s claim when she knew of

the claim long before the period expired. Second, Rivera actually brought M.R.’s claim, albeit after

the repose statute barred it. She brought the claim on M.R.’s behalf while M.R. was still a minor.

While one may conceive of a scenario where a parent fails to bring her child’s claim due to legal

incompetence or a conflict of interest with the child, Rivera’s as-applied challenge requires us to

consider only her circumstances. See Weiner, 900 S.W.2d at 327 (Owen, J., dissenting). There is

no indication in the record that Rivera is legally incompetent or possesses a conflict of interest with

M.R. And sending pre-suit notice of M.R.’s claim and filing suit on her behalf demonstrates

Rivera’s capability of representing M.R.

       In short, the Legislature’s findings in enacting the Medical Liability Act demonstrate its

compelling public purpose in lowering the cost of medical malpractice premiums and broadening

access to health care. And although the record gives no indication of the strength of M.R.’s claim,

the repose statute gave M.R. a three-year grace period to bring her claim. In light of the compelling



                                                  18
public purpose and the three-year grace period, we overrule Rivera’s challenge that the statute is

unconstitutionally retroactive as applied.

                                    C. Response to the Dissent

       The dissent would hold that the repose statute violates the open courts provision and is

unconstitutionally retroactive. Regarding the open courts challenge, the dissent correctly observes

that the open courts provision requires a “reasonable opportunity” to sue and may not make a remedy

contingent on “an impossible condition.” __ S.W.3d __, __ (Lehrmann, J., dissenting) (quoting

Stockton, 336 S.W.3d at 617–18, and Shah, 67 S.W.3d at 842). But here, M.R. had three years to

sue through Rivera, who hired a lawyer and sent pre-suit notice of the claim two years before the

repose statute barred it. The statute afforded M.R. a reasonable opportunity to sue through her parent

and did not impose an impossible condition. Thus, we disagree with the dissent that the as-applied

challenge prevails.

       The dissent also raises two additional arguments regarding the open courts challenge, neither

of which is persuasive. First, the dissent contends we have never imputed a parent’s due diligence

to the minor child she represents. But we did precisely that three years ago in Stockton.35 The

dissent claims Stockton was different in that the parent there argued the statute was unconstitutional

as applied “to her” because it was impossible for her to comply with the statutory deadline at issue.

__ S.W.3d at __ (Lehrmann, J., dissenting) (quoting Stockton, 336 S.W.3d at 612). But in Stockton,

the parent’s failure to use due diligence to comply with the statutory procedure barred her minor



       35
            336 S.W .2d at 612.

                                                 19
child’s claim. 336 S.W.3d at 612. Here, the parent’s failure to use due diligence to comply with the

statute’s procedure barred her minor child’s claim. There is no legal difference between Stockton

and this case.

        Second, the dissent believes that imputing a guardian’s lack of diligence to a ward in Yancy

is materially different from imputing a parent’s lack of diligence to a minor child and warrants a

different result. But the dissent cites no authority for that proposition, and for a good reason. We

have previously observed that “[t]raditionally the interests of minors, incompetents, and other

helpless persons are viewed in law as substantially similar, and both the substantive law and the rules

of procedure accord them comparable treatment.” Tinkle, 730 S.W.2d at 166. We see no reason to

treat parents of minor children differently than guardians of wards in this circumstance.

        Finally, the dissent concludes that the repose statute is unconstitutionally retroactive as

applied to M.R. This conclusion stems from its interpretation of Weiner that inquiring into whether

a particular parent was incompetent or possessed a conflict of interest is an unworkable standard.

Weiner did not involve a retroactivity challenge, and retroactivity challenges are, by definition, as-

applied constitutional challenges. They examine only the position of the party raising the challenge.

The more difficult plight of a different or hypothetical litigant will not save a litigant’s as-applied

challenge. Or as we observed in Yancy, “there is no need to strike [a statute] down because it might

operate unconstitutionally in another case.” 236 S.W.3d at 786. Our courts have had little difficulty

examining the particular circumstances of those raising retroactivity challenges, and we are confident

in their ability to continue to do so.



                                                  20
                                          III. Conclusion

       In sum, we uphold the Medical Liability Act’s ten-year statute of repose against Rivera’s as-

applied constitutional challenges on open courts and retroactivity grounds. Rivera fails to meet this

requirement because she was aware of M.R.’s claim one year into her three-year period to bring the

claim but waited over six-and-a-half additional years to file suit. Rivera’s retroactivity challenge

also fails because a compelling public purpose justified the legislation and granted Rivera a three-

year grace period to file suit. Because the court of appeals found in favor of Rivera on her open

courts challenge, we reverse the court of appeals’ judgment and render judgment that Rivera take

nothing.




                                                      ____________________________________
                                                      Eva M. Guzman
                                                      Justice

OPINION DELIVERED: August 22, 2014




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