by George Christian
The Texas Supreme Court has reversed a Fort Worth Court of Appeals decision holding that a plaintiff’s claims against her counselor were time-barred under § 74.251(a), CPRC. Although the Court’s ruling appears to be a straightforward application of the statute, the opinion contains a substantial amount of dicta about the interaction between the two-year limitations period and § 74.251(b)’s 10-year statute of repose on medical liability claims, so much so that Justice Young felt impelled to file a concurring opinion expressing his uneasiness with that part of the opinion.
Soren Aldaco v. Barbara Rose Wood and Three Oaks Counseling Group, LLC d/b/a Thriveworks (No. 24-1069; June 26, 2026) arose from a sequence of events that led to the performance of a double mastectomy to treat Plaintiff’s gender dysphoria. When Plaintiff contacted a clinic to schedule the procedure, the clinic directed Plaintiff to produce a letter from a practitioner recommending it. Plaintiff sought the letter from Defendant, a therapist who had treated Plaintiff for some time. Defendant provided the letter, but after Plaintiff failed to appear for an appointment, didn’t pay the no-show fee, and ceased contact, Defendant terminated their relationship. Shortly thereafter, Plaintiff scheduled and received the surgery. Subsequently, Plaintiff suffered post-surgical complications and developed regrets about having done it. Plaintiff sued the therapist, alleging that the therapist breached the standard of care by signing the letter and misrepresented the extent to which she had treated Plaintiff for gender dysphoria. Defendant moved to dismiss based on the two-year statute of limitations in § 74.251(a). The court of appeals affirmed. SCOTX granted review.
In an opinion by Justice Sullivan, SCOTX reversed. First, the Court determined that Plaintiff’s suit was timely if limitations had begun to run after May 9, 2021 (two years prior to her pre-suit notice). Plaintiff argued that two dates met that requirement: May 14, 2021, when Defendant terminated the counseling relationship, or June 11, 2021, when she had the surgery. The court of appeals, however, ruled that limitations began to run on February 22, 2021, when Defendant signed the allegedly tortious recommendation letter. The Court rejected this ruling on the theory that since the counseling relationship ended on May 14, this was “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.” § 74,251(a). The court of appeals erred by resting its decision on the alternative date of “the occurrence of the breach or tort,” which, as we have seen, it determined to be the date of Defendant’s letter. Instead, as the Court reasoned, Plaintiff’s claim was based on a course of treatment that continued for 82 days between February 22 and May 14, so the earliest date that Plaintiff could have “ascertained any bodily injury” was when the treatment ended on May 14.
The second part of the opinion seems more problematic, and, in fact, only three other justices signed on to it. It begins by stating that even if the Court had based its decision on the date of “the occurrence of the breach or tort,” Plaintiff’s suit would still have been timely. It came to this conclusion by referring to the 10-year statute of repose statute, § 74.251(b), which runs from “the date of the act or omission that gives rise to the claim.” The Court reasoned that for purposes of the statute of repose, Plaintiff’s claim could have been brought any time in the ten years following February 22, 2021. Because the statute of repose uses the term “act,” as opposed to the statute of limitations’ use of the term “tort,” the “statutory context demands that we must distinguish the ‘tort’ from the underlying ‘act.’” Making this distinction, the Court went on, meant that Plaintiff’s fraudulent misrepresentation claim against Defendant (the “tort”) didn’t occur until June 11, the date Plaintiff relied on the letter (the “act) and got the surgery. Plaintiff’s claim was thus timely under the alternative date in 6 74.251(a) as well.
Was it really necessary for a plurality of the Court to add this discussion of § 74.251(b) to the mix? In a concurring opinion, Justice Young, joined by Justice Bland, raised this question. He agreed wholeheartedly with the first part of the Court’s opinion dating the two-year limitations period from May 14, based on the ongoing nature of psychological counseling for gender dysphoria. In other words, under the “completed treatment” prong of the statute, Plaintiff’s claim was timely.
But as to the plurality’s analysis in the second part of the opinion distinguishing the statute of repose, he wasn’t so sure. “The premise of Part II.B is that the letter cannot be a ‘tort’ until injury occurs,” Justice Young wrote. “As I described above, I think that in this narrow context, Aldaco suffered an injury aside from the letter or the surgery. But if we accept Part II.B’s premise, it would mean that a surgery any time up to 10 years after the letter would allow for the same lawsuit, which strikes me as injecting uncertainty into medical liability in areas far beyond this context.”
We hope, as Justices Young and Bland noted, that this won’t be the case. In concurring with the majority opinion, Justice Young reassuringly stated that “[t]oday’s holding should be minimally disruptive to the law governing medical liability because, beyond this circumstance, it should have few applications (possibly, for example, a handful of others in which medical treatment implicates a relationship like that of the counselor to the patient seeking mental-health guidance).” But if it does create a loophole, we have no doubt that it will be quickly found and exploited. Perhaps this isn’t a situation in which bad facts make bad law, but that old adage exists for a reason.
