In Texas, in general the rule is that a person has two years from the date they either knew, or should have known of the potential malpractice in which to bring a claim. If a claim is not instituted within this time period, it is barred by the statute of limitations.

This is a very short time period to bring claims and does not account for the situation where a person does not know and did not suspect malpractice within two years of the event. The courts and legislature has attempted to address this situation by allowing a claim to be brought within a "reasonable time period" of the date of the discovery of malpractice by the patient. Thus, generally when a patient learns for the first time that a sponge was left in them more than two years ago, they are allowed to bring a claim.

Most jurisdictions will make exceptions for certain types of malpractice, like retained foreign objects like sponges. Generally, those jurisdictions will allow a claim to be brought within a certain period after discovery of the foreign object. This is true even if the object is not discovered for many years later.

Texas also prohibits claims from being brought after two years from the date of the malpractice where the patient "should have known" of the medical malpractice. Unfortunately, whether a patient should have known or suspected malpractice earlier is a question the judge or jury will answer. If it is answered in the affirmative, then even a valid claim will be dismissed.

For these reasons, it is important to determine at the beginning of the review whether there is a potential problem with the statute of limitations.