Verdicts

The Texas legislature waived sovereign immunity from suit against a state-run hospital only if timely notice was served, and such notice requirement was not waived in this case merely because the plaintiff is a minor. Martinez v. Val Verde County Hospital District, Texas Lawyer 5/19/03, Vol. 19; No. 11; Pg. 247, 4th Ct. of App., San Antonio, TX.

Parents of a minor child instituted a suit for medical malpractice on behalf of their daughter against Val Verde County Hospital District, a Texas state institution. Their suit was brought pursuant to the Texas Tort Claims Act (TTCA), which legislatively waives state sovereign immunity from suit provided a notice of claim is provided to the state within six months of the injury. Plaintiffs here provided their notice to the hospital 7 months after the alleged injury, but they argued that the statute of limitations should not apply where, as here, the injured party is a minor. The trial court granted the hospital's plea to the jurisdiction and severed the claim against it from those against the private-sector defendants. The appellate court affirmed, but on different grounds. It held that the six-month notice requirement falls under immunity from liability, and is an affirmative defense, so complaint of failure comply with this 6-month notice requirement should have been brought as a motion to dismiss. The court held, however, that the TTCA provides for waiver of sovereign immunity only under certain circumstances, and it does not contain any provision tolling the notice period for minors. The court therefore held that until the legislature provides for such a provision in the TTCA, the court would not create the common-law rule requested by appellants. Consequently, the injured child's 6-month notice requirement was not tolled due to her minority.