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Click here for the full text of this decision FACTS:On Nov. 9, 1995, Drs. W.C. Schorlemer and Robert Schorlemer (the physicians) performed a hysterectomy on Emmalene Rankin at Methodist Healthcare System. In July 2006, Rankin experienced abdominal pains. After several visits to a number of doctors, Rankin underwent exploratory surgery and a surgical sponge was found and removed from her abdomen. On Oct. 27, 2006, Rankin filed suit against Methodist. On Jan. 8, 2007, Rankin filed suit against the physicians. Each defendant separately moved for traditional summary judgment based on Texas Civil Practice & Remedies Code �74.251(b), the 10-year statute of repose. The trial court granted summary judgment in favor of Methodist and the physicians on the basis that the statute of repose in �74.251(b) barred Rankin’s claim for health-care liability as to each defendant. Rankin challenged the constitutionality of �74.251(b). HOLDING:Reversed and remanded. Section 74.251 provides as follows: “(a) 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 hospitalization for which the claim is made is completed; provided that, minors under the age of 12 years shall 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 other legal disability. “(b) 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.” Texas Constitution Art. I, �13, the Texas Constitution’s open courts provision, the court stated, provides that “[a]ll 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.” The purpose of this provision, the court stated, “is to assure that there are no unreasonable or arbitrary restrictions for a person bringing a well-established common-law claim.” As summary judgment evidence, Rankin submitted an affidavit stating that the surgical sponge found in her abdomen in July 2006 had been left during her operation on November 9, 1995, and that discovery of the sponge was impossible prior to the expiration of the 10-year period under the statute of repose contained in �74.251(b). To establish an open courts violation, the court stated, Rankin must satisfy two requirements: 1. a cognizable, common-law claim that is statutorily restricted; and 2. the restriction is unreasonable or arbitrary when balanced against the statute’s purpose and basis. Methodist asserted that Rankin lacked a historical cause of action that was being restricted; consequently, the statute of repose could not violate the open courts provision. In response to Methodist’s argument, Rankin claimed that, historically, a patient could have brought a cause of action for negligent failure to remove a surgical sponge more than 10 years after surgery; thus, a well established common-law claim existed. Methodist argued that because the Legislature abolished the discovery rule in 1975, �74.251 did not abrogate a well established common-law claim. The court disagreed. The court noted its 2005 holding in Adams v. Gottwald that �74.251, as applied to minors, was unconstitutional under the open courts provision of the Texas Constitution. Thus, the court similarly concluded that Rankin established a common-law claim that would be abrogated by �74.251(b). Next, the physicians claimed that Rankin had no vested right to seek redress for her alleged injury. Because the open courts provision is “quite plainly, a due process guarantee,” the court found that Rankin had a vested right at stake. Next, the court found that �74.251(b) effectively abolished Rankin’s right to bring a well-established common law cause of action without providing a reasonable alternative. The Legislature is entitled to set a period of time within which claims must be brought, the court stated, but it may not deny a plaintiff a reasonable opportunity to discover the alleged wrong and bring suit. A 10-year period, whether as a statute of limitations or repose, barring all claims regardless of when and if the act or omission giving rise to the claim could have been discovered, does not cure the constitutional infirmities, the court stated. Thus, the court held that �74.251(b) violated the open courts provision of the Texas Constitution by barring Rankin’s claims against Methodist and the physicians before she had a reasonable opportunity to discover the wrong and bring suit. OPINION:Simmons, J.; Angelini, Simmons and Hilbig, JJ.

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