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Nash v. Selinko12/23/1999
The only court reaching the opposite conclusion is the Corpus Christi Court of Appeals. See Browning-Ferris Industries, Inc. v. Lieck, 845 S.W.2d 926, 949 (Tex. App.-Corpus Christi 1992), rev'd on other grounds, 881 S.W.2d 288 (Tex. 1993).
Appellants, however, argue that the Texas Supreme Court case Weiner v. Wasson, 900 S.W.2d 316 (Tex. 1995), is dispositive of the issue before the court. In that case, the court held that the application of ยง 10.01 to a minor's claim for medical malpractice violates the Texas Constitution since it requires a minor to bring a claim prior to the time the disability of minority is removed. Id. at 319. Extrapolating from this holding, appellants argue that this holding should apply not only to a minor's claim for medical malpractice, but to a minor's claim for loss of parental consortium as well. We decline this invitation to extend Weiner's holding.
Appellants' final argument is that this issue was decided by the First Court of Appeals in Bangert v. Baylor College of Medicine. 881 S.W.2d 564 (Tex. App.-Houston [1 st Dist.] 1994, writ denied). We note that Bangert was based on the application of the wrongful death statute to a medical malpractice claim, a situation which is not present here. As such, it is distinguishable from the case before this court.
At the heart of appellants' appeal is the argument that allowing the use of the expiration of the statute of limitations on the parent's claim against a minor child punishes the minor for the parent's negligence. We note that this concept is embodied in the idea of loss of parental consortium as a derivative claim. In fact, the Reagan court expressly noted that a parent's comparative negligence can be used as a defense against the child's recovery. Reagan, 804 S.W.2d at 469 (op. on mot. for reh'g).
It is undisputed in this case that the minor's claim was filed long after the two-year statute of limitations expired on Mr. Nash's medical malpractice claim, making Mr. Nash's claim untenable. Thus, Dr. Selinko and Sun Belt established the limitations defense against the father's claim as a matter of law. Once established, this defense served to extinguish the minors' loss of parental consortium claim. Accordingly, we find no error in the trial court's decision. The judgment of the trial court is affirmed.
Publish -- TEX. R. APP. P. 47.3(b).
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