dissenting on motions for rehearing.
I dissent.
In this case, a minor has brought a derivative action under the wrongful death statute because of health care injuries sustained by his deceased mother. The issue here is whether a minor, who is a wrongful death beneficiary, can use the statute of limitations provided in the Medical Liability Act for injured minors, to extend the two-year period of limitations, applicable under this act to the injured adult, because of his status as a minor under the wrongful death act.
The Medical Liability Act provides in part:
“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; provided 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_”
Tex.Rev.Civ.StatAnn. art. 4590i, § 10 (Vernon Pamph.1994) (emphasis added).
As stated in Russell v. Ingersoll-Rand Co., 841 S.W.2d 348, 846 (Tex.1992), the wrongful death statute allows an action by a decedent’s beneficiaries “only if the individual injured would have been entitled to bring an action for the injury if he had lived.” (citing Tex.Civ.PRAC. & Rem.Code Ann. § 71.003 (Vernon 1986)). Reaffirming its holding in Vassallo v. Nederl-Amerik Stoomv Maats Holland, 162 Tex. 62, 344 S.W.2d 421, 424 (1961), the court in Russell stated, “a wrongful death action is entirely derivative of the decedent’s right to have sued for his own injuries immediately prior to his death and is subject to the same defenses to which the decedent’s action would have been subject,” Russell, 841 S.W.2d at 347, i.e., in this case the two-year statute of limitations set out under the Medical Liability Act. Here, “had death not ensued,” the injured person could not have maintained a cause of action after the expiration of the two years provided for *568in the medical malpractice statute of limitations. The minor suing for wrongful death inherited the two-year statute of limitations applicable to the injured adult in the underlying cause of action.
The majority cites the second half of article 4590i, § 10 and notes that the minor in this case was under the age of 14 when the claims were filed and therefore, the statute has not run. However, this portion of the Medical Liability Act does not apply to the minor in this case. The Act states:
“Health care liability claim” means a cause of action ... which proximately results in injury to or death of a patient....
Tex.Rev.Civ.Stat.Ann. art. 4590i § 1.03(a)(4) (Vernon Pamph.1994). Therefore, a health care claim and the applicable statute of limitations apply to persons who have been injured or who have died. The wrongful death minor is not the injured person and therefore, the statute of limitations applicable to health care claims cannot be used to extend the statute of limitation in this derivative action. The minor in this case has a derivative claim under the wrongful death statute and not a claim as defined under the Medical Liability Act. Therefore, I disagree with the majority’s attempt to bootstrap a wrongful death beneficiary into the statute of limitations provided specifically for persons with health care injuries.
Further, I do not agree that the statute of limitations in the wrongful death statute wipes out the defenses of limitation in the medical liability act. I would hold that in those cases where the underlying cause of action is subject to the medical liability act, that even though the beneficiary under the wrongful death statute is a minor, the medical malpractice statute is not tolled or invalidated as a defense.
In Hill v. Milani, 686 S.W.2d 610, 611 (Tex.1985), the Supreme Court held that the tolling provision of Tex.Rev.Civ.Stat.Ann. art. 5587 (Vernon 1958), tolling the limitation periods when defendant is absent from state, does not toll the statute of limitations of the medical liability act. 686 S.W.2d 610, 611 (Tex.1985). In construing the Medical Liability Act the Court emphasized the language, “[njotwithstanding any other law,” and determined that art. 5537 was a part of the other law made inapplicable by the act. Id.
I would follow this precedent noting that the language of the statute is clear and exclusive; that any statute extending limitations is a part of the “other law” made inapplicable by the Medical Liability Act and therefore, under Hill, minority tolling provisions are inapplicable to the medical liability statute. Id.; Sanchez v. Memorial Medical Center Hospital, 769 S.W.2d 656, 660 (Tex.App.—Corpus Christi 1989, no writ).
Appellant argues open courts as a defense to the applicability of the two-year statute of limitations set out in the medical liability statute as it pertains to the child’s wrongful death cause of action. Wrongful death is a statutory cause of action. Tex.Civ.PRAC. & Rem.Code Ann. § 71.000 et seq. (Vernon 1986 & Supp.1994). Persons can only assert “open courts” as against common law causes of action; therefore, the child’s cause of action in this ease is not subject to the open courts argument. Suber v. Ohio Medical Products, 811 S.W.2d 646, 650 (Tex.App.—Houston [14th Dist.] 1991, writ denied).
Appellant agrees, in his response filed on behalf of the minor plaintiff, that this suit was not filed against the moving defendants, Baylor College of Medicine and Dr. Bruce Hirschfeld, within two years after the death of the minor’s mother. Based on this statement, it is fair to assume that neither was the suit filed within two years of the injury sustained by his mother as required by the medical liability act. Therefore, I would find that the minor’s wrongful death action is barred by the two-year statute of limitations applicable to the adult injured mother under the medical liability act. Tex.Rev.Civ.Stat. Ann. art. 4590i, § 10 (Vernon Pamph.1994).
I would affirm the summary judgment.