dissenting.
The majority holds that “the statute of limitations [governing Arredondo’s wrongful death action] was tolled from the date of the alleged injuries, July 17, until the date of [Alexander’s] death on July 19” by virtue of the proviso in section 10.01. On this basis, the majority reverses the summary judgment. From this holding and judgment, I respectfully dissent.
I agree with the majority that section 10.01 of the Medical Liability and Insurance Improvement Act, Tex.Rev.Civ.Stat. art. 4590i (Vernon Pamph.1995), provides the operative limitations period for all health care liability claims, including those resulting in death. I further agree that Arredondo failed to bring forward sufficient summary judgment proof to raise a fact issue as to her fraudulent concealment defense. See American Petrofina v. Allen, 887 S.W.2d 829, 830 (Tex.1994). I disagree, however, that either Russell v. Ingersoll-Rand Co., 841 S.W.2d 343 (Tex.1992), or the proviso in section 10.01, applies to and saves Arredondo’s wrongful death cause of action.
Russell did not involve a medical malpractice claim, and the supreme court did not even purport to resolve the issues raised by Arredondo in this appeal. Indeed, the court expressly left open the possibility that, “under other statutes, a limitations period may begin to run against wrongful death beneficiaries prior to decedent’s death.” Russell, 841 S.W.2d at 348 n. 8 (citing Wilson v. Rudd, 814 S.W.2d 818 (Tex.App.—Houston [14th Dist.] 1991, writ denied), which did involve a medical malpractice claim). We must, therefore, construe the proviso in section 10.01 in accordance with the usual rules of statutory construction, which mandate that we give effect to the legislative intent expressed in the plain and unambiguous language of the statute. See Citizens Bank v. First State Bank, 580 S.W.2d 344, 348 (Tex.1979); Minton v. Frank, 545 S.W.2d 442, 445 (Tex.1976).
The proviso in section 10.01 expressly states that “minors, under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim.”1 The proviso thus tolls the accrual of a health care liability claim only when the claim is filed by or on behalf of a minor. A wrongful death action is not a claim filed by a minor or on his behalf; nor is it a claim to recover damages suffered by a minor.2 Rather, a wrongful death action is a claim filed by and on behalf of a statutory benefi*762-770ciary to collect Ms or her own damages. See Landers v. B.F. Goodrich Co., 369 S.W.2d 33, 35 (Tex.1963). Accordingly, the express terms of the proviso in section 10.01 render it inapplicable to wrongful death claims such as Arredondo’s.
Absent the tolling effect of the proviso in section 10.01, Arredondo’s wrongful death action accrued on July 17, 1991, the date the appellees’ medical care and hospitalization of Alexander was completed. Accordingly, Ar-redondo’s wrongful death action became time-barred prior to its filing on July 19, 1993 — unless, as Arredondo argues, section 10.01 is unconstitutional as applied under article I, sections 13 and 19 of the Texas Constitution.
Clearly, article I, section 13 of the Texas Constitution — the open courts provision— cannot save Arredondo’s statutory wrongful death action. See Moreno v. Sterling Drug, 787 S.W.2d 348, 355-57 (Tex.1990); see also Rose v. Doctors Hosp., 801 S.W.2d 841, 845 (Tex.1990). Article I, section 19 is likewise unavailable; it simply cannot be said that two days less than two years is an unreasonable or inadequate limitations period in these circumstances. See Morrison v. Chan, 699 S.W.2d 205, 207 (Tex.1985).
In light of the foregoing, I would affirm the summary judgment in favor of appellees.
. But see Weiner v. Wasson, 900 S.W.2d 316 (Tex. 1995) (holding proviso unconstitutional as applied to minors and extending limitations period until minor’s 20th birthday).
. As noted in the majority opinion, the trial judge denied the appellees' motion for summary judgment as to, and severed, the survival claim asserted by Arredondo as the representative of Alexander’s estate. Accordingly, whether the proviso in section 10.01 applies to the survival claim is not before this court on appeal.