Molinet v. Kimbrell, MD, No. 09-0544 (Tex. Jan. 21, 2011)(Johnson)
In this case we consider a statutory conflict regarding whether limitations bars Jeremy Molinet’s health care
liability claims against two doctors he sued after they had been designated as responsible third parties
pursuant to Texas Civil Practice and Remedies Code section 33.004. See Tex. Civ. Prac. & Rem. Code §
33.004.1 Molinet joined the doctors as defendants within sixty days after they were designated as responsible
third parties but more than two years after they last treated him. Section 33.004(e) provides that if a defendant
designates a responsible third party the claimant may, within sixty days, join the designated party “even though
such joinder would otherwise be barred by limitations.” Id. However, section 74.251(a) provides a two-year
limitations period for health care liability claims that applies “[n]otwithstanding any other law,” and section
74.002(a) provides that chapter 74 controls in the event its provisions conflict with other law. See id. §§ 74.251
(a), 74.002(a).
We hold that section 74.251(a) prevails and Molinet’s claims against the doctors are barred by its two-year
limitations period. [...] The court of appeals correctly concluded that section 74.251(a) bars Molinet’s suit
against Drs. Horan and Kimbrell. Accordingly, we affirm the court of appeals’ judgment.
JEREMY MOLINET v. PATRICK KIMBRELL, M.D. AND JOHN HORAN, M.D.; from Bexar County; 4th district (04-08-00379-CV, 288
SW3d 464, 12-31-08)
The Court affirms the court of appeals' judgment.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice
Green, Justice Willett, and Justice Guzman joined. [16-page opinion in pdf]
Justice Lehrmann delivered a dissenting opinion, in which Justice Medina joined. [9 page opinion in pdf]
View Electronic Briefs in 09-0544 MOLINET v. PATRICK KIMBRELL, M.D
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Molinet v. Kimbrell, MD, No. 09-0544 (Tex. 2011)(Opinion by Johnson)
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Argued October 13, 2010.
Opinion delivered: January 21, 2011.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice
Green, Justice Willett, and Justice Guzman joined.
Justice Lehrmann filed a dissenting opinion, in which Justice Medina joined.
PHIL JOHNSON, Justice.
In this case we consider a statutory conflict regarding whether limitations bars Jeremy Molinet's health care liability claims
against two doctors he sued after they had been designated as responsible third parties pursuant to Texas Civil Practice and
Remedies Code section 33.004. See Tex. Civ. Prac. & Rem. Code § 33.004.[1] Molinet joined the doctors as defendants within
sixty days after they were designated as responsible third parties but more than two years after they last treated him. Section
33.004(e) provides that if a defendant designates a responsible third party the claimant may, within sixty days, join the
designated party "even though such joinder would otherwise be barred by limitations." Id. However, section 74.251(a) provides a
two-year limitations period for health care liability claims that applies "[n]otwithstanding any other law," and section 74.002(a)
provides that chapter 74 controls in the event its provisions conflict with other law. See id. §§ 74.251(a), 74.002(a).
We hold that section 74.251(a) prevails and Molinet's claims against the doctors are barred by its two-year limitations period.
I. Background
On July 15, 2004, Jeremy Molinet injured his Achilles tendon. On July 18, 2004, Dr. John Horan surgically repaired the tendon,
after which Molinet re-injured it. Dr. Marque Allen performed a second operation later that year. Dr. Patrick Kimbrell, a wound
treatment specialist, treated Molinet for several weeks beginning in early November 2004.
In September 2005, Molinet filed suit against several parties seeking damages related to his injury and medical treatment. He
sued Dr. Allen and various health care providers, but did not sue either Dr. Horan or Dr. Kimbrell. In both May and September
2006, Molinet amended his pleadings and added additional healthcare providers as defendants but still did not sue Dr. Horan
or Dr. Kimbrell. On August 1, 2007, more than two-and-a-half years after either Dr. Horan or Dr. Kimbrell last treated Molinet, Dr.
Allen moved to designate them as responsible third parties pursuant to section 33.004(a). The trial court granted Dr. Allen's
motion on August 21, 2007. On August 24, 2007, Molinet amended his pleadings to join Drs. Horan and Kimbrell as defendants.
See id. § 33.004(e). The doctors moved for summary judgment on the basis that Molinet's claims against them were barred by
the two-year statute of limitations in section 74.251(a).
The trial court denied the motion for summary judgment. Pursuant to agreement of the parties, the court authorized an
interlocutory appeal. See id. § 51.014(d) (permitting a trial court to issue a written order for interlocutory appeal in a civil action if
the parties agree to the order and agree that the order involves a controlling question of law as to which there is a substantial
ground for difference of opinion and an immediate appeal from the order may materially advance the ultimate termination of the
litigation).
The court of appeals reversed the trial court's order and rendered judgment dismissing Molinet's claims against Drs. Horan and
Kimbrell. 288 S.W.3d 464, 468. The court of appeals held that section 74.251(a) contains an absolute two-year limitations period
and trumps the contradictory language in section 33.004(e). Id. at 467-68.
In this Court, Molinet argues that sections 74.251(a) and 33.004(e) do not truly conflict and both can be given effect. Alternatively,
he argues that even if the statutes conflict, the language of section 33.004(e) controls and provides an exception to the two-year
limitations period in section 74.251(a).
Drs. Horan and Kimbrell contest our jurisdiction to review the court of appeals' judgment because this is an interlocutory appeal.
Alternatively, they urge that the court of appeals correctly resolved the issue.
We conclude that we have jurisdiction to clarify the issue and that section 74.251(a) controls. Thus, we affirm the court of
appeals' judgment.
II. Jurisdiction
This Court has jurisdiction over interlocutory appeals if the justices of the court of appeals disagree on a material question of
law or if the court of appeals' decision conflicts with a prior decision of this Court or another court of appeals. TEX. GOV'T CODE
§ 22.225(c); In re H.V., 252 S.W.3d 319, 324 (Tex. 2008). Decisions conflict "when there is inconsistency in the[] respective
decisions that should be clarified to remove unnecessary uncertainty in the law and unfairness to litigants." TEX. GOV'T CODE §
22.225(e).
In Moreno v. Palomino-Hernandez, 269 S.W.3d 236 (Tex. App.-El Paso 2008, pet. denied), the El Paso Court of Appeals
considered a health care liability suit in which Dr. Palomino-Hernandez was designated as a responsible third party and then
named as a defendant by the plaintiffs. The underlying facts of the case are not entirely clear in the opinion, but Dr. Palomino-
Hernandez had been named as a defendant and served with an expert report in a case filed in August 2003. Id. at 237-38. The
plaintiffs nonsuited that case and in April 2005, filed the suit out of which the appeal arose, apparently based on the same
injuries as the 2003 suit. Id. at 238. They did not name Dr. Palomino-Hernandez as a defendant. Id. The trial court entered a
scheduling order in January 2006 that stated the deadline for joining additional parties had passed. On January 30, 2006, a
defendant filed a motion for leave to designate Dr. Palomino-Hernandez as a responsible third party, and the trial court granted
the motion on February 22. Id. On March 21, the plaintiff filed an amended petition naming Dr. Palamino-Hernandez as a
defendant. Id. Dr. Palamino-Hernandez filed a motion to dismiss, urging that the plaintiffs neither timely joined him nor timely
served an expert report. Id. The trial court granted the motion to dismiss. Id.
The court of appeals held that an expert report had been timely served. Id. at 242. It also held that the trial court abused its
discretion by allowing the defendant to designate a responsible third party and yet refusing to allow the plaintiffs' timely joinder of
that party pursuant to section 33.004(e). Id. at 243. Although the court of appeals did not directly address the relationship
between section 33.004(e) and section 74.251(a), it indicated that section 33.004(e) effectively provided an unqualified sixty-day
period for joinder of a responsible third party beginning with the date the third party was designated. See id. at 243 & n.6.
The ostensible effect of Moreno and the court of appeals' decision in this case are not in accord regarding whether section
33.004(e) effectively establishes a new sixty-day window in which a plaintiff can sue a defendant even if the limitations period in
section 74.251(a) has run. We have jurisdiction to clarify the issue "to remove unnecessary uncertainty in the law." TEX. GOV'T
CODE § 22.225(e). We need not address Molinet's argument that the concurrence in the court of appeals was sufficient to give
this Court jurisdiction.
III. Analysis
A. Standard of Review
We review issues of statutory construction de novo. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). Our
primary objective in construing statutes is to give effect to the Legislature's intent. Galbraith Eng'g Consultants, Inc. v. Pochucha,
290 S.W.3d 863, 867 (Tex. 2009). The plain meaning of the text is the best expression of legislative intent unless a different
meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results. See City of Rockwall v.
Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008).
B. The Statutory Provisions
Section 33.004(e) states:
If a person is designated under this section as a responsible third party, a claimant is not barred by limitations from seeking to
join that person, even though such joinder would otherwise be barred by limitations, if the claimant seeks to join that person not
later than 60 days after that person is designated as a responsible third party.
TEX. CIV. PRAC. & REM. CODE § 33.004(e). However, section 74.251 provides:
(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 the hospitalization for which the claim is made is completed . . . .
(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.
Id. § 74.251. Additionally, section 74.002(a) contains a general conflict-of-law provision that states "[i]n the event of a conflict
between [chapter 74] and another law, including a rule of procedure or evidence or court rule, [chapter 74] controls to the extent
of the conflict." Id. § 74.002(a).
Molinet first argues that sections 74.251(a) and 33.004(e) do not conflict. He urges that section 33.004(e) does not change the
statute of limitations by either altering when the limitations period begins to run or by tolling it for a certain period of time. Rather,
he posits, section 33.004(e) simply provides that the statute of limitations is not applicable to the joinder of a party when that
party has been designated as a responsible third party.
In support of this argument, Molinet cites Chilkewitz v. Hyson, 22 S.W.3d 825 (Tex. 1999). In Chilkewitz, the plaintiff named
"Morton Hyson, M.D." as a defendant in a health care suit within the limitations period. Id. at 827. After the limitations period had
run, Hyson filed a motion for summary judgment alleging that he did not perform the surgery individually, but that it was
performed by his professional association, "Morton Hyson, M.D., P.A." Id. Hyson then argued that the "notwithstanding any other
law" language in former Texas Revised Civil Statutes article 4590i, section 10.01,[2] the predecessor to section 74.251,
precluded the operation of Texas Rule of Civil Procedure 28, which provides that "any . . . individual doing business under an
assumed name may sue or be sued in its . . . assumed or common name for the purpose of enforcing for or against it a
substantive right, but on a motion by any party or on the court's own motion the true name may be substituted." Id. at 828; see
TEX. R. CIV. P. 28. We disagreed and held that rule 28 did not conflict with section 10.01 because it was not a tolling provision
that operated to extend the limitations period. Chilkewitz, 22 S.W.3d at 830.
In reaching our decision we recognized that several cases had interpreted section 10.01 and held that the "notwithstanding any
other law" language prevented the tolling of the statute of limitations in medical malpractice cases. Id. at 829-30. But as Molinet
points out, we also held that rule 28 was not a tolling provision that extended limitations. Id. at 830. We stated:
But in all the foregoing cases, the issue was either when limitations began to run or whether limitations could be tolled or
interrupted. Rule 28 concerns none of those issues. That procedural rule simply provides that if an entity conducts business
under an assumed or common name, it may be sued in that name. Limitations is not tolled.
Id.
Although his argument is not entirely clear, Molinet asserts that, like rule 28, section 33.004(e) is not a tolling provision; instead,
it allows a plaintiff to join a party who has already been properly implicated in the pending lawsuit. Thus, Molinet essentially
argues that the statute of limitations is only applicable when an action is "commenced" in the traditional sense, and that
Chilkewitz held that when a party is subsequently joined in a pending proceeding the statute of limitations does not apply. We
disagree.
Rule 28 is predicated on the notion that a case has already commenced against the proper party, but the party's legal name is
incorrect. See TEX. R. CIV. P. 28 (allowing that "the true name may be substituted"); see also Sixth RMA Partners, L.P. v. Sibley,
111 S.W.3d 46, 53 (Tex. 2003) ("Rule 28 requires that the correct legal name be substituted . . . ."). Thus, in Chilkewitz the
doctor's professional association was effectively already a party to the suit even though Chilkewitz only named the doctor as an
individual. See Chilkewitz, 22 S.W.3d at 829 ("[A]lthough Chilkewitz described Hyson as an individual in his original petition, his
suit against Morton Hyson, M.D. was effective to commence suit against the Association doing business under the name of
Morton Hyson, M.D.").
In contrast, the effect of chapter 33 is not to statutorily determine when a suit is commenced against parties designated as
responsible third parties. The filing and granting of a motion for leave to designate a person as a responsible third party does
not artificially establish the "commencement" of the case against a party as of some date before the party was in fact joined. See
TEX. CIV. PRAC. & REM. CODE § 33.004(i).
In short, the plaintiff in Chilkewitz was allowed to amend his pleadings to reflect the defendant's proper legal name, but that
defendant was a party to the lawsuit before limitations expired. Here, we are dealing with whether section 33.004(e) allows the
plaintiff to commence an action outside the two year limitations period against two entirely new defendants.
We disagree with Molinet's argument that the statutes are not in conflict as to the issue presented. The limitations provision of
section 74.251(a) would bar Molinet's action against Drs. Horan and Kimbrell, while section 33.004(e) would prevent that
limitations provision from barring it.
C. Construing the Statutes
We recently considered a similar situation in Texas Lottery Commission v. First State Bank of DeQueen, 325 S.W.3d 628 (Tex.
2010). In that case, both the Uniform Commercial Code and the Texas Lottery Act addressed assignability of future lottery
payments, which the UCC designated as "accounts." Id. at 631. We held that because the UCC contained a conflict-of-law
provision specifying that a conflicting statute is "ineffective to the extent that the . . . statute . . . prohibits [or] restricts" the
assignment of an account, the Legislature intended for the UCC to control the assignments in question. Id. at 638.
Similarly, chapter 74's language reflects legislative intent for section 74.251(a) to be the controlling statute as to claims such as
Molinet's against Drs. Horan and Kimbrell. First, section 74.251(a) explicitly states that "notwithstanding any other law" a health
care liability claim must be commenced within two years after "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 the hospitalization for which the claim is made is completed." TEX. CIV.
PRAC. & REM. CODE § 74.251(a). Second, section 74.002(a) provides "in the event of a conflict between [chapter 74] and
another law, including a rule of procedure or evidence or court rule, [chapter 74] controls to the extent of the conflict." Id. § 74.002
(a).
In Chilkewitz, we held that section 74.251(a)'s predecessor statute foreclosed operation of any statute "that would otherwise
extend limitations." Chilkewitz, 22 S.W.3d at 829-30. As the court of appeals correctly held, adopting Molinet's position would
extend the limitations period as to his claims against Drs. Horan and Kimbrell. 288 S.W.3d 464, 468. Thus, by the specific
provisions stating that section 74.251(a) applies "notwithstanding any other law," and that chapter 74 prevails over conflicting
law, the Legislature has resolved the otherwise-conflicting provisions of sections 74.251(a) and 33.004(e). See Tex. Lottery
Comm'n, 325 S.W.3d at 639.
The dissent argues that our analysis in Lottery Commission is not applicable here because in that case "strong policy
considerations" dictated that the use of canons of construction was inappropriate. ___ S.W.3d at ___. Despite making this
argument, the dissent specifically notes that in Lottery Commission we did not even discuss the policy provision that the dissent
references. Id.
Policy considerations involving the UCC were not the basis of our holding in Lottery Commission. In Lottery Commission, we
discussed in depth the language of the UCC provision in dispute and concluded that canons of construction were not necessary
because the express provision was unambiguous. See Tex. Lottery Comm'n, 325 S.W.3d at 637-39 ("We agree with FSB that
because the Legislature expressly and unambiguously set out the method for resolving conflicts between the UCC and other
statutes, it would be improper to go outside the language of the statute and use canons of construction to resolve the
question."). We looked only to the plain language of the UCC's conflict-of-law provision, which expressly stated a conflicting
statute may not prohibit or restrict the assignment of an account, and held that the Legislature intended for the UCC to control
the assignments in question. Id. at 639. Here, section 74.251(a) and section 74.002(a) contain express, unambiguous conflicts-
of-law provisions. Applying the same analysis as we did in Lottery Commission, we conclude that section 74.251(a) should
apply "notwithstanding any other law."
We also disagree with the court of appeals' statement that section 74.002(a) is not instructive on the issue presented as to
Molinet's claims against Drs. Horan and Kimbrell because the provision was neutralized by chapter 33's own conflict-of-law
provision. 288 S.W.3d at 467.
Section 33.017 states:
Nothing in this chapter shall be construed to affect any rights of indemnity granted by any statute, by contract, or common law. To
the extent of any conflict between this chapter and any right to indemnification granted by statute, contract, or common law, those
rights of indemnification shall prevail over the provisions of this chapter.
Section 33.017 is not applicable in this situation for two reasons. First, while it preserves indemnity rights, it does not provide
that chapter 33 generally controls over conflicting laws. Second, even if section 33.017 were a general conflict-of-law provision,
this case does not concern the rights of indemnified parties.
Thus, both section 74.002(a) and section 74.251(a) evidence clear legislative intent that the two year statute of limitations in
section 74.251(a) applies to Molinet's claims against Drs. Horan and Kimbrell notwithstanding section 33.004(e).
D. Legislative History
In support of their arguments that section 33.004(e) controls over section 74.251(a), Molinet and the dissent urge us to consider
and give overriding weight to statements made by a senator during floor debates and published by unanimous consent in the
Senate Journal. We decline to do so. Statements made during the legislative process by individual legislators or even a
unanimous legislative chamber are not evidence of the collective intent of the majorities of both legislative chambers that
enacted a statute. See Gen. Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 923 (Tex. 1993). Moreover, the Legislature expresses
its intent by the words it enacts and declares to be the law. See Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644,
651 (Tex. 2006) ("Ordinarily, the truest manifestation of what legislators intended is what lawmakers enacted, the literal text they
voted on."). Construing clear and unambiguous statutes according to the language actually enacted and published as law—
instead of according to statements that did not pass through the law-making processes, were not enacted, and are not
published as law—ensures that ordinary citizens are able to rely on the language of a statute to mean what it says. See
Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864, 866 (Tex. 1999). When a statute's language is clear and
unambiguous "`it is inappropriate to resort to the rules of construction or extrinsic aids to construe the language.'" Tex. Lottery
Comm'n, 325 S.W.3d at 637 (quoting City of Rockwall, 246 S.W.3d at 626); Tex. Dep't of Protective and Regulatory Servs. v. Mega
Child Care, Inc., 145 S.W.3d 170, 177 (Tex. 2004); St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997).
It is the Legislature's prerogative to enact statutes; it is the judiciary's responsibility to interpret those statutes according to the
language the Legislature used, absent a context indicating a different meaning or the result of the plain meaning of the
language yielding absurd or nonsensical results. See TEX. GOV'T CODE § 311.011(a) (words and phrases shall be read in
context and construed according to rules of grammar and common usage); Tex. Lottery Comm'n, 325 S.W.3d at 637-38. And our
interpretation of the language the Legislature used in section 74.251(a) is neither contradicted by its context nor does it create
an absurd or nonsensical result.
Molinet could have avoided the limitations difficulty in which he finds himself by taking action such as seeking a scheduling
order requiring responsible third parties to be designated in time to allow their joinder as parties before limitations expired. If
that failed, he could have added the doctors as defendants within the limitations period, just as he timely named several other
healthcare providers as defendants. He did not do so, however, and it is not absurd or nonsensical for him to bear the
consequences of his decisions.
E. Is an Exception to Section 74.251(a) Appropriate?
Molinet argues that even if section 74.251(a) controls we should create an exception to the two-year limitations period under the
circumstances addressed by section 33.004(e). He bases his argument on the proposition that we have previously recognized
exceptions to the limitations period in section 74.251(a), although he does not argue that any of the exceptions are applicable
here. He references Morrison v. Chan, where we held that there was no violation of the open courts provision of the Texas
Constitution by former section 10.01's abolishing of the discovery rule in cases governed by chapter 74. 699 S.W.2d 205, 207-08
(Tex. 1985). Molinet also refers to cases involving fraudulent concealment and notes the Court has said that fraudulent
concealment in health care liability claims estops a health-care provider from relying on limitations to bar a plaintiff's claim. Shah
v. Moss, 67 S.W.3d 836, 841 (Tex. 2001); see also Borderlon v. Peck, 661 S.W.2d 907, 908-09 (Tex. 1983).
Thus, he notes, we have recognized exceptions to section 74.251's two-year statute of limitations in limited circumstances even
though several of our decisions have characterized the two-year statute of limitations as "absolute." See Diaz v. Westphal, 941 S.
W.2d 96, 99 (Tex. 1997) ("We have repeatedly held that section 10.01 [74.251's predecessor] establishes an absolute two-year
statute of limitation for health care liability claims . . . ."); Bala v. Maxwell, 909 S.W.2d 889, 892-93 (Tex. 1995) (holding that
section 10.01 controls over the limitations provision of the wrongful death statute); see also In re USAA, 307 S.W.3d 299, 310-11
(Tex. 2010) (suggesting that section 74.251(a) controls over the tolling provision in section 16.064 of the Civil Practice and
Remedies Code in health care liability claims).
Molinet argues that our cases applying former section 10.01 are not instructive to the application of 74.251(a). But the language
in section 74.251(a) is almost identical to the language in section 10.01. Section 10.01 provided: "Notwithstanding any other law,
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 the hospitalization for which the claim
is made is completed . . . ." We disagree with Molinet; our interpretation of the language in section 10.01 is instructive regarding
our application of section 74.251(a). And our cases construing both 74.251(a) and its predecessor have characterized the two-
year statute of limitations as absolute absent very narrow exceptions. But none of the recognized exceptions apply in this case,
and to create an exception here would require us to give effect to section 33.04(e) and construe the plain provisions of sections
74.251(a) and 74.002(a) to mean something other than what they clearly say. We will not do so.
The dissent also argues that the Legislature's enactment of section 74.251(b), creating a ten year statute of repose, evidences
intent to allow an exception for 33.004(e) to the two-year limitations period in section 74.251(a). ___ S.W.3d at ___. We disagree.
Before the Legislature enacted the statute of repose in 2003,[3] we had recognized fraudulent concealment and open courts
provision exceptions to the two-year statute of limitations. See Shah, 67 S.W.3d at 841; Morrison, 699 S.W.2d at 208; Neagle v.
Nelson, 685 S.W.2d 11, 12 (Tex. 1985); Borderlon, 661 S.W.2d at 908-09. Neither the language nor the context of section 74.251
(b) implies legislative intent for section 33.004(e) to be an exception to the express, clear language in sections 74.251(a) and
74.002(a). We recently noted in Walters v. Cleveland Regional Medical Center that "a ten-year repose period has no purpose
unless the two-year limitations period has exceptions." 307 S.W.3d 292, 298 (Tex. 2010). But in Walters we were discussing the
interaction of section 74.251(a), section 74.251(b), and provisions of the Texas Constitution. This case pits chapter 74 against
chapter 33, not the Texas Constitution. And the Legislature has declared that when another statutory provision conflicts with
chapter 74, chapter 74 controls. The dissent concludes that section 74.251(b) reflects legislative intent to negate two clear
conflict-of-law provisions in chapter 74; we conclude that the Legislature meant what it clearly said in sections 74.251(a) and
74.002(a). We are mindful of concerns expressed by the dissent and Molinet that not permitting a plaintiff to join designated
responsible third parties outside the limitations period may create an imbalance in the proportionate responsibility framework.
But to the extent it does so, that balancing—or imbalancing—has been accomplished by the Legislature. The statute of
limitations in health care liability claims "reflect[s] a considered legislative judgment in favor of the prompt resolution of such
claims." Yancy v. United Surgical Partners Int'l, 236 S.W.3d 778, 784 (Tex. 2007). Imbalances the statutes allegedly create are
matters to be addressed by the Legislature.
IV. Conclusion
The court of appeals correctly concluded that section 74.251(a) bars Molinet's suit against Drs. Horan and Kimbrell. Accordingly,
we affirm the court of appeals' judgment.
Justice LEHRMANN, joined by Justice MEDINA, dissenting.
As the Court acknowledges, we have repeatedly recognized that certain constitutional restrictions and common law doctrines
may override the two-year limitations period established by section 74.251(a) of the Civil Practice and Remedies Code and its
statutory predecessors. See, e.g., Walters v. Cleveland Reg'l Med. Ctr., 307 S.W.3d 292, 298 (Tex. 2010); Neagle v. Nelson, 685
S.W.2d 11, 12 (Tex. 1985); Borderlon v. Peck, 651 S.W.2d 907, 909 (Tex. 1983). Nevertheless, the Court concludes that the
deadline is "absolute," trumping the statutory override the Legislature established in section 33.004(e) of the Texas Civil Practice
& Remedies Code. ___ S.W.3d at ___. The same legislative Act that implemented the current version of section 33.004(e) also
enacted a ten-year statute of repose which "contemplates it is at least possible for certain [health care liability] claims to be
brought up to eight years after limitations expires." Walters, 307 S.W.3d at 298; see TEX. CIV. PRAC. &; REM. CODE § 74.251(b).
In my view, the Legislature's simultaneous adoption of a provision allowing for the post-limitations initiation of health care
liability claims and a provision allowing joinder of responsible third parties against whom limitations has run, at a minimum,
clouds the purportedly unambiguous, "[n]otwithstanding any other law" language of section 74.251(a) the Court relies on. And,
with several specified exceptions not relevant here, chapter 33 applies to "any cause of action based on tort." Tex. Civ. Prac. &
Rem. Code § 33.002(a)(1) (emphasis added). Viewing the Act as a whole and absent any other expression of legislative intent
to exclude health care liability claims from section 33.004(e)'s purview, I respectfully dissent.
Before the 2003 amendments to chapter 33 of the Civil Practice and Remedies Code, adopted as part of the sweeping tort
reform implemented by House Bill 4,[1] defendants in tort suits, including health care liability defendants, were permitted to
attempt to shift liability to responsible third parties by joining them as third-party defendants. Act of May 18, 1995, 74th Leg., R.S.,
ch. 136, § 1, 1995 Tex. Gen. Laws 971, 972-73, amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 4.02-4.04, 2003 Tex.
Gen. Laws 847, 855-56; see Gregory J. Lensing, Proportionate Responsibility and Contribution Before and After the Tort Reform
of 2003, 35 TEX. TECH L. REV. 1125, 1186 (2004). Like the present version of chapter 33, a claimant was permitted to assert a
claim against a responsible third party a defendant had joined under chapter 33 within sixty days of the party's joinder, even if
limitations had expired. Act of May 18, 1995, 74th Leg., R.S., ch. 136, § 1, 1995 Tex. Gen. Laws 971, 973, amended by Act of June
2, 2003, 78th Leg., R.S., ch. 204, § 4.04, 2003 Tex. Gen. Laws 847, 855-56. A responsible third party could be joined only if the
party (1) was or might have been liable to the claimant for all or part of the claimant's damages; (2) was subject to the court's
jurisdiction; and (3) could have been sued by the claimant, but was not. Act of May 18, 1995, 74th Leg., R.S., ch. 136, § 1, 1995
Tex. Gen. Laws 971, 972, amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 4.04, 2003 Tex. Gen. Laws 847, 855-56.
The 2003 amendments to chapter 33, however, dramatically altered this third-party practice. Under the current version of the
statute, the trier of fact may allocate a percentage of responsibility to a third party designated by a defendant, even if the party has
not been made a party to the lawsuit. TEX. CIV. PRAC. &; REM. CODE §§ 33.003, 33.004. A jury's allocation of responsibility to a
designated third party has no legal impact upon the designee: adverse findings impose no liability, and "may not be used in any
other proceeding, on the basis of res judicata, collateral estoppel, or any other legal theory . . . ." TEX. CIV. PRAC. & REM. CODE
§ 33.004(i)(2). But the defendant has "much to gain strategically by designating a responsible third party because the defendant
has a possibility of shifting a large percentage of responsibility onto the responsible third party, thereby avoiding joint and
several liability," Jas Brar, Friend or Foe? Responsible Third Parties and Leading Questions, 60 BAYLOR L. REV. 261, 275
(2008), or possibly evading any liability at all. See Elaine A. Carlson, Tort Reform: Redefining the Role of the Court and the Jury,
47 S. TEX. L. REV. 245, 259 (2005) (hereinafter Carlson); TEX. CIV. PRAC. & REM CODE § 33.001. As the concurring justice in
the court of appeals in this case observed, the designee has no legal incentive to vigorously contest liability or attempt to assign
responsibility to the defendant. 284 S.W.3d 464, 470 (SIMMONS, J., concurring); see also Carlson at 261. Read in light of proper
canons of construction, the relevant provisions do not dictate the imbalanced scheme stemming from the Court's decision.
In construing a statute, our ultimate goal is to determine the meaning the Legislature intended. Fresh Coat, Inc. v. K-2, Inc., 318
S.W.3d 893, 901 (Tex. 2010). We begin with the statute's text, and "`examine the entire act to glean its meaning.'" Id. (quoting
Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex. 2001)) (emphasis added). We also presume that the Legislature
intended a just and reasonable result. City of Dallas v. Abbott, 304 S.W.3d 380, 384 (Tex. 2010); see TEX. GOV'T CODE §
311.021(3).
The Court grounds its decision on the assumption that the language of section 74.251(a), providing for a two-year limitations
period "[n]otwithstanding any other law," is clear and unambiguous, and mandates the application of the limitations period to
Molinet's claims against Kimbrell. But section 33.002 of the Code unambiguously provides that chapter 33 applies to "any cause
of action based on tort" and Deceptive Trade Practices Act claims, and specifies the claims to which it does not apply. TEX. CIV.
PRAC. & REM. CODE § 33.002. More importantly, the Court reads section 74.251(a)'s language in isolation. House Bill 4, the
source of both sections 74.251(a) and 33.004(e), also enacted section 74.251(b), a provision that clearly allows some health
care liability claims to be brought after limitations has run.[2] Walters, 307 S.W.3d at 298. While the Legislature could have
conceivably enacted subsection (b) to give effect to previously recognized common law or constitutionally mandated exceptions
to limitations, as the Court posits, no language in House Bill 4 supports that assumption. On the other hand, section 33.004(e)
was a portion of the very bill enacting the ten-year repose statute; thus, the Legislature's own words undermine the Court's
conclusion that section 74.251(a) imposes an absolute deadline. See Leland v. Brandal, 257 S.W.3d 204, 208 (Tex. 2008)
(construing statutes "passed at the same time as part of the same tort-reform bill [House Bill 4]" in harmony).
This Court has been reluctant to look to legislative history to divine the Legislature's meaning, and rightly so when the statute's
words clearly convey legislative intent. See In re Collins, 286 S.W.3d 911, 918 (Tex. 2009) (citing Alex Sheshunoff Mgmt. Servs., L.
P. v Johnson, 209 S.W.3d 644, 652 n.4 (Tex. 2006)). In this instance, however, the Legislature's simultaneous adoption of a ten-
year repose period for medical liability claims and its amendments to chapter 33 create an ambiguity that justifies consideration
of legislative history bearing on the specific issue before us. See HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 356 (Tex. 2009) (looking
to legislative history to determine meaning of term that lent itself to two equally plausible interpretations); see also Robinson v.
Crown Cork & Seal Co., ____ S.W.3d ___, ___ (Tex. 2010) (looking to legislative record to determine public interest Legislature
sought to serve in enacting Chapter 149 of the Civil Practice and Remedies Code).
In the Senate proceedings to consider the Conference Committee Report on House Bill 4, the following exchange between
Senator Hinojosa and Senator Ratliff, House Bill 4's sponsor and a member of the conference committee that crafted the
substitute that was ultimately enacted, is recorded in the Senate Journal:
Senator Hinojosa: When a defendant names a responsible third party, as I understand it, the plaintiff has 60 days to bring the
third party into the suit, even if limitations would otherwise have run against that person. . . . Is that true in a medical malpractice
claim too, because on page 63 of the bill it seems to say that the two-year statute in those cases applies notwithstanding any
other law?
Senator Ratliff: Yes, if health care providers are going to have the benefit of the designation of responsible third parties, then they
have to abide by the same rules as everyone else. This 60-day provision would apply in health care liability claims.
78th Leg., R.S., Journal of the Texas Senate 5005 (citations omitted). That exchange, which addresses the precise issue before
the Court, was "ordered reduced to writing and printed in the Senate Journal" by unanimous consent "to establish legislative
intent regarding HB4." Id. at 5003. According to the Court, its reading of the statute does not create an absurd or nonsensical
result, and if it does, it is the Legislature's doing. ___ S.W.3d at ___. But the Legislature crafted a scheme that permits
defendants to attempt to minimize their liability by designating other responsible parties, while allowing plaintiffs to join the
designees even if limitations have run. Under the Court's reading of the statute, which ignores the impact of section 74.251(b),
health care liability defendants will be in a position to force plaintiffs to "prove the liability of the party defendant (or defendants),
while at the same time defending the empty chair." Wes Christian & Alexandra Mutchler, Musical Chairs: Apportioning Liability,
44 THE ADVOC. 118, 123 (2008). The distortion inherent in such a procedure has been noted:
"A plaintiff . . . has no knowledge, possession, or control of evidence that a [responsible third party] could use to protect himself
from a finger-pointing defendant. The empty chair defense, therefore . . . places an impossible burden upon plaintiffs to
represent [the responsible third party's] interests as well as their own, while giving defendants a great advantage in diminishing
their own liability by allowing them to allocate fault to [the responsible third party]. The result would likely be an inaccurate
diminution of fault allocated to defendants and an increase of fault attributed to unrepresented [responsible third party]."
Id. at 124 (quoting Nancy A. Costello, Allocating Fault to the Empty Chair: Tort Reform or Deform, 76 U. DET. MERCY L. REV. 571,
597 (1999)). According to the sponsor of House Bill 4, Representative Joe Nixon, the bill's purpose was "`to establish an
equitable and efficient system of justice in Texas that provides meaningful remedies for those who have been wronged while
protecting the rights of those who have done no wrong.'" Carlson at 248-249 (quoting Press Release, House Chairman Joe
Nixon Files Legislation to Curb Medical Lawsuit Abuse (Feb. 12, 2003) (http:// www.house.state.tx.us/news/release.php?id=91
(web page no longer available)); see also Leland v. Brandal, 257 S.W.3d at 208 (noting that the reforms applicable to health care
liability claims House Bill 4 effected were intended to be implemented "in a manner that will not unduly restrict a claimant's
rights") (citing Act of June 2, 2003, 78th Leg., R. S., ch. 204, § 10.11(b)(3), 2003 Tex. Gen. Laws 847, 884)). The Court's decision
today disrupts the balance the Legislature sought to implement in section 33.004(e).
Moreover, contrary to the fundamental purposes of the reforms implemented in House Bill 4, the Court's reading of the statute
will have the unintended consequence of encouraging lawsuits against health care providers. In the wake of today's decision,
cautious health care liability claimants will be motivated to sue every health care provider involved in the patient's care, no matter
how minimal their involvement, in order to circumvent an empty-chair defense by more likely responsible defendants.
Finally, the posture of this case differs significantly from Texas Lottery Commission v. First State Bank of DeQueen, 325 S.W.3d
628 (Tex. 2010). In that case, we were called upon to resolve an apparent conflict between provisions of the Lottery Commission
Act and the Uniform Commercial Code. We gave effect to the UCC provision, declining to resort to canons of construction that
might have eliminated the conflict, instead applying a section of the UCC providing "that `a rule of law, statute, or regulation that
prohibits [or] restricts' an assignment of a prize won in a state lottery `is ineffective.'" Id. at 638 (quoting TEX. BUS. & COM. CODE
§ 9.406(f)). The Act implementing the UCC provision at issue in that case, unlike House Bill 4, contained no explicit exceptions;
any exception would have had to have been imported from a distinct piece of legislation, the bill amending the Lottery Act.
Further, strong policy considerations dictated by the Legislature necessarily shape our decisions interpreting the UCC; while our
opinion did not discuss them, those considerations made the application of otherwise-applicable canons of construction
inappropriate in Lottery Commission. The UCC is intended to simplify, clarify, and modernize commercial practices. See Sw.
Bank v. Info. Support Concepts, Inc., 149 S.W.3d 104, 110 (Tex. 2004); TEX. BUS. & COM. CODE § 1.103. Our decision in Lottery
Commission is consistent with the mandate that the UCC "is to be regarded as particularly resistant to implied repeal." TEX.
BUS. & COM. CODE § 1.104 cmt. 1. The considerations that precluded our application of canons of construction in Lottery
Commission are simply not present in this case.
It is apparent from the context in which section 74.251(a) and section 33.004(e) were enacted that section 74.251(a)'s "[n]
otwithstanding any other law" language is not unambiguous. The Court's construction ignores section 74.251(b)'s impact, gives
no effect to section 33.004(e)'s joinder provision in health care liability claims, and disrupts a carefully constructed scheme
balancing the interests of both defendants and claimants, despite explicit expressions of contrary legislative intent. Accordingly, I
respectfully dissent.
[1] Further references to provisions of the Civil Practices and Remedies Code will generally be by reference to section and
number.
[2] Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 10.01, 1977 Tex. Gen. Laws 2052, 2058, repealed by Act of June 2, 2003, 78th
Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 884.
[3] Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 864, 864-82 (current version at TEX. CIV. PRAC. &
REM. CODE § 74.251(b)).
[1] Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 4.03, 2003 Tex. Gen. Laws 847, 855-56.
[2] That section provides:
(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. TEX. CIV. PRAC. & AMP; REM. CODE § 74.251(b).
Also see: Texas Causes of Action | 2011 Texas Supreme Court Opinions | 2011 Tex Sup Ct Per Curiams