Texas Medical Malpractice Statute of Limitations Exceptions

The Texas medical malpractice statute of limitations gives most patients two years to file suit, measured from the date of the negligent act or the date the related course of treatment ended. A separate 10-year outer limit, called the statute of repose, cuts off nearly every claim regardless of when the injury is discovered.¹ A handful of exceptions can pause or extend the two-year window, and two separate procedural deadlines can end a case before it ever reaches the merits.

When the Two-Year Clock Starts

Section 74.251(a) of the Texas Civil Practice and Remedies Code bars any health care liability claim not filed within two years of the negligent act or the completion of the treatment that gave rise to the claim.¹ The “or” matters. If a course of care stretched over months, the clock may run from the end of that treatment rather than the first mistake within it. A single identifiable event, such as a surgical error on a known date, starts the clock on that date even if the same doctor continued to see the patient afterward.

Miss the two-year deadline and the court will dismiss the case without ever considering whether the underlying care fell below the standard.

The 10-Year Absolute Cutoff

Section 74.251(b) sets a hard outer boundary: no claim may be filed more than 10 years after the act or omission that caused the injury.¹ The statute uses the term “statute of repose” to signal that this is a fixed ceiling, not a flexible deadline.

The repose period applies even when the patient had no way of knowing about the injury within 10 years. Someone who discovers in year 11 that a surgical instrument was left inside them is, under the plain language of the statute, out of time. Courts have recognized narrow exceptions for fraud and concealment, but for planning purposes the 10-year cap should be treated as final. It is especially dangerous in pediatric cases, where the repose period can expire before the child is old enough to sue.

Exceptions That Can Extend the Two-Year Deadline

The Discovery Rule and the Open Courts Provision

Some injuries do not announce themselves. A retained sponge, a missed diagnosis of a slow-developing condition, an error whose consequences only surface years later. Texas courts address this through the discovery rule, which starts the two-year period when the patient discovers the injury, or reasonably should have discovered it through ordinary diligence.

The rule is not written into Chapter 74. It comes from Article I, Section 13 of the Texas Constitution, the Open Courts provision, which guarantees that “every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”² When a patient can show it was genuinely impossible to discover the injury within two years, applying the statute would strip them of any remedy at all, and courts may allow the claim to proceed on that constitutional footing.

Judges apply the exception cautiously. A patient who ignored warning signs, skipped follow-up appointments, or delayed investigating obvious symptoms is unlikely to benefit from it. Retained surgical items and undetectable misdiagnoses are the classic scenarios where the rule carries weight.

Claims Involving Minors

Section 74.251(a) provides that a child under 12 at the time of the negligent act has until their 14th birthday to file, and says the two-year deadline otherwise applies “regardless of minority or other legal disability.”¹ The Texas Supreme Court in Sax v. Votteler (1983) held this framework unconstitutional as applied to children, finding it violated the Open Courts guarantee because it could cut off a child’s right to sue before they were old enough to act for themselves.³ In practice, this often means the two-year clock does not begin running until the child turns 18, giving them until their 20th birthday to file.

Section 16.001 reinforces the point by treating anyone under 18 as under a “legal disability” whose time does not count toward the limitations period.⁴ The 10-year statute of repose still applies, however, which means a birth injury claim can be barred by the child’s 10th birthday if no adult files first.¹ Parents who suspect pediatric malpractice should treat the situation as urgent even though the deadlines look distant. Records get harder to obtain, and memories fade.

Mental Incapacity at the Time of the Injury

Section 16.001 also tolls limitations for a person who was “of unsound mind” when the cause of action arose. Two limits apply. Section 74.251(a) says its deadline runs regardless of “other legal disability,” and while the Supreme Court struck that language down for minors in Sax, it is less settled whether the same reasoning extends to adults with mental incapacity. And Section 16.001(d) provides that a disability arising after the limitations period has started does not pause the clock.⁴ The incapacity has to have existed continuously from the moment the claim arose.

Fraudulent Concealment

A provider who actively hides a mistake cannot then argue the patient filed too late. Fraudulent concealment is an equitable doctrine that stops the limitations clock while the fraud remains undetected. Texas courts require the patient to prove three things: the provider had actual knowledge that a wrong was committed, the provider had a fixed purpose to hide it, and the concealment succeeded.

Once the patient discovers the concealment, or learns something that would prompt a reasonable person to investigate, the two-year clock starts from that date. The patient still has to show they were reasonably diligent about their own health. Texas courts also distinguish between active concealment, like falsifying records, and passive concealment through silence. Because the physician-patient relationship is fiduciary, a duty to disclose exists while the relationship is ongoing; once it ends, so does the duty. Switching doctors can inadvertently start the clock if the new provider has no obligation to reveal the former provider’s errors.

Continuing Treatment

When a patient receives ongoing care for the same condition and no single date of negligence can be identified, the continuing treatment doctrine allows the two-year period to begin on the last date of the relevant course of care rather than the first. The exception is narrow. It does not apply when the negligent act happened on a known date, and unrelated appointments with the same provider do not count. Pinpointing the final relevant treatment date usually requires a close review of medical records and billing.

Pre-Suit Notice and the 75-Day Extension

Before filing suit, a claimant must send written notice of the claim, by certified mail with return receipt requested, to every physician or provider who will be named as a defendant. The notice must go out at least 60 days before the lawsuit is filed and must include a signed authorization form for the release of protected health information under Section 74.052.⁵

Sending the notice automatically tolls the statute of limitations for 75 days, and the tolling applies to all parties and potential parties.⁵ The clock runs from the date the notice is given, not received. That 75-day window can save a claim that is on the verge of expiring, and it also gives the provider time to evaluate the case and consider settlement.

The 120-Day Expert Report Deadline

Filing on time is not enough. Texas also requires the claimant to serve an expert report on each defendant no later than 120 days after that defendant files their original answer. The report must include the expert’s curriculum vitae and address the applicable standard of care, how the provider breached it, and the causal link to the patient’s injury.⁶

Missing the deadline is fatal. If no report is served within 120 days, the court must dismiss the claim with prejudice and award the defendant reasonable attorney’s fees and costs.⁶ If a report is served but the court finds it deficient, the court may grant one 30-day extension to fix the problems. The parties can also agree in writing to extend the deadline. Absent such an agreement, the 120-day clock is unforgiving, and securing a qualified expert and preparing a detailed report takes longer than most claimants expect.

1
State of Texas. Texas Civil Practice and Remedies Code 74.251 – Statute of Limitations on Health Care Liability Claims
2
Justia. Texas Constitution Article 1 – Section 13
3
Justia. Sax v Votteler – 1983 – Supreme Court of Texas Decisions
4
State of Texas. Texas Civil Practice and Remedies Code Section 16.001
5
State of Texas. Civil Practice and Remedies Code 74.051 – Notice
6
State of Texas. Texas Civil Practice and Remedies Code Section 74.351