law-res-ipsa-loquitor | the thing speaks for itself | obvious tort wrongdoing negligence | medical malpractice


This case pits the ten-year statute of repose for healthcare-liability claims1 against the Texas Constitution’s
Open Courts provision.2 We examine for the first time whether the latter saves a malpractice claim if the
former has expired. The answer is no.

The Open Courts provision does not confer an open-ended and perpetual right to sue; it “merely gives
litigants a reasonable time to discover their injuries and file suit.”3 The Legislature may set an absolute cut-
off point for healthcare suits, as it has for other suits,4 so long as the repose period is a reasonable exercise
of the Legislature’s police power to act in the interest of the general welfare. The ten-year statute of repose
at issue adopts a constitutionally permissible policymaking judgment of the Legislature. Accordingly, we
reverse the judgment of the court of appeals and render judgment for the petitioners.

ENRIQUE BENAVIDES, JR., M.D. v. NANCY ORTEGON; from Webb County; 4th district (
___ SW3d ___, 03‑05‑08, pet. denied Oct. 2008)(
medical malpractice case, re-open the sutures to retrieve
a surgical sponge res ispa loquitor claims of negligence)

NANCY ORTEGON v. ENRIQUE BENAVIDES, M.D.; from Webb County; 4th district
04‑05‑00768‑CV, ___ SW3d ___, 03-05-08) (medical malpractice, res ipsa loquitur, sponge left in body
after surgery)