The parents of Lori Beth Sax brought a medical malpractice suit against Dr. T.P. Votteler, alleging that he mistakenly removed one of Lori Beth’s fallopian tubes, instead of her appendix, during an operation that occurred on May 10, 1976. Dr. Votteler continued to treat Lori Beth until August 5, 1976, at which time she was eleven years of age. The Saxes’ suit against Dr. Votteler was filed on February 20, 1979. Dr. Votteler filed a motion for summary judgment, claiming Lori Beth’s cause of action was barred by the two-year statute of limitations contained in Texas Insurance Code, article 5.82, section 4 (hereinafter referred to as article 5.82, section 4). The trial court granted the motion and the court of appeals affirmed.
Historically, in Texas, minors have had varying periods of time after reaching their majority to bring an action in tort. As early as pre-statehood, Texas tolled limitations for minors until two years after their attaining majority. Act of February 5, 1841, § 11, 1841 Laws of the Republic of Texas, at 166, 2 H. GAMMEL, Laws of Texas 630 (1898). Thereafter, for a brief time, the Texas Constitution tolled limitations for minors for seven years after removal of disabilities. Tex. Const, art. XII § 14 (1869). Prior to the enactment of article 5.82, section 4, Texas law allowed for a tolling of limitations in all tort actions by minors until two years after attaining majority or removal of disabilities. Tex.Rev. Civ.Stat.Ann. art. 5535 [derived from Tex. Rev.Civ.Stat. art. 5708 (1911) ].
In 1975, however, by enacting the Professional Liability Insurance for Physicians, Podiatrists, and Hospitals Act (Ch. 330,1975 Tex.Gen.Laws 864), the Texas Legislature amended Chapter 5 of the Insurance Code by adding article 5.82, which changed the law with respect to limitations for minors in medical malpractice actions. Section 4 of article 5.82 provided:
Notwithstanding any other law, no claim against a person or hospital covered by a policy of professional liability insurance covering a person licensed to practice medicine or podiatry or certified to administer anesthesia in this state or a hospital licensed under the Texas Hospital Licensing Law, as amended (Art. 4437f, Vernon’s Texas Civil Statutes), whether for breach of express or implied contract or tort, for compensation for a medical treatment or hospitalization may be commenced unless the action is filed within two years of the breach or the tort complained of or from the date the medical treatment that is the subject of the claim or the hospitalization for which the claim is made is completed, except that minors under the age of six years shall have until their eighth birthday in which to file, or have filed on their behalf, such claim. Except as herein provided, this section applies to all persons regardless of minority or other legal disability. 1
As the date of Lori Beth’s last treatment from Dr. Votteler occurred in 1976, the statute of limitations in article 5.82 is applicable to the filing of her suit. It is the constitutionality of that provision which is under attack here. The Saxes urge that by removing the tolling provision after age six Lori Beth is being denied her rights to due process and equal protection of the law as guaranteed her by the fourteenth amendment of the United States Constitution. Further, the Saxes urge that article 5.82, section 4, violates the equal protection *664 guarantee, article I, section 3, and the due process guarantees, article I, section 13, and article I, section 19, of the Texas Constitution.
While it is true that state constitutional protections cannot subtract from those rights guaranteed by the United States Constitution, there certainly is no prohibition against a state providing additional rights for its citizens.
See, e.g., PruneYard Shopping Center
v.
Robins,
What remains for our determination is whether article 5.82, section 4, is violative of article I, section 13, of the Texas Constitution. The court of appeals’ opinion concluded that article I, section 13, “was not raised as a ground of defense to the motion for summary judgment and cannot be considered.”
Defendant relies upon section 4 of art. 5.82 of the Insurance Code of the State of Texas. Plaintiffs say that if that particular section does apply to this cause of action that said law is unconstitutional since it provides a shorter statute of limitations for minor medical malpractice plaintiffs than other minor plaintiffs and thus violates the equal protection and due process provisions of the United States and Texas Constitutions.
The Texas Constitution contains two separate due process provisions. Article I, section 19, is the traditional due process guarantee, which states: “No citizen of this state shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” Article I, section 13, provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” While it is true that this provision is sometimes referred to as the “Open Courts Provision,” it is, quite plainly, a due process guarantee.
See Hanks v. City of Port Arthur,
We recognize that “[i]n passing upon the constitutionality of a statute, we begin with a presumption of validity. It is to be presumed that the Legislature has not acted unreasonably or arbitrarily; and a mere difference of opinion, where reasonable minds could differ, is not a sufficient basis for striking down legislation as arbitrary or unreasonable.”
Smith v. Davis,
Legislative action, however, is not without bounds. As early as 1932, this Court recognized that article I, section 13, of the Texas Constitution ensures that Texas citizens bringing common law causes of action will not unreasonably be denied access to the courts. Hanks v. City of Port Arthur, supra. In Hanks, this Court was confronted with an ordinance that exempted Port Arthur from liability for injuries caused by defective streets unless the city had received notice of the defect twenty-four hours prior to the accident. The ordinance was challenged as being violative of article I, section 13. In holding that the ordinance was unconstitutional, this Court reasoned:
*665 As written ... [the ordinance] applies to all persons who may be upon the streets; to children ... [who] have the right to use the sidewalks.... Are we to say that a small child running an errand, or a small boy selling newspapers to help make the family living, who is injured by reason of a defective sidewalk, due to the negligence of the city, or by reason of otherwise actionable negligence of the city, cannot recover because the infant, or some one for him, has not notified one of the city commissioners twenty-four hours before the accident of the existence of the defect? Would that be reasonable? Is the requirement of a thing impossible from an infant, or one incapacitated for any other reason, due process? We think not; and yet it is a condition precedent to a recovery....
Id.
The rule in
Hanks
has been considered dispositive in at least two other cases decided by this Court. In
Lebohm
v.
City of Galveston,
[L]egislative action withdrawing common-law remedies for well established common-law causes of action for injuries to one’s “lands, goods, person or reputation” is sustained only when it is reasonable in substituting other remedies, or when it is a reasonable exercise of the police power in the interest of the general welfare. Legislative action of this type is not sustained when it is arbitrary or unreasonable.
Id.
Waites v. Sondock,
We reaffirm today the interpretation of article I, section 13, set out in Hanks, Lebohm, and Waites. In doing so, we note that the basis for the Court’s conclusion in these cases was that the litigant’s right of redress outweighed the legislative basis for the respective ordinances and statute. We hold, therefore, that the right to bring a well-established common law cause *666 of action cannot be effectively abrogated by the legislature absent a showing that the legislative basis for the statute outweighs the denial of the constitutionally-guaranteed right of redress. In applying this test, we consider both the general purpose of the statute and the extent to which the litigant’s right to redress is affected.
Article 5.82 was enacted to establish standards for setting liability insurance rates for physicians and other health care providers.
See
Tex.Ins.Code.Ann. art. 5.82, caption;
Littlefield
v.
Hays,
In analyzing the litigant’s right to redress, we first note that the litigant has two criteria to satisfy. First, it must be shown that the litigant has a cognizable common law cause of action that is being restricted. Second, the litigant must show that the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute.
Texas courts have long recognized that a minor has a well-defined common law cause of action to sue for injuries negligently inflicted by others.
See Texas & P. Ry. Co. v. Morin,
It is settled law in this state that, when a minor receives personal injuries proximately caused by the actionable negligence of another, a cause of action at once arises in favor of the injured minor for the damages resulting by reason of the injuries received.... It is also the settled law of this state that, on the infliction of a wrongful injury on a minor, a cause of action at once arises in favor of the parents to recover the damages suffered by them by reason of such injury.
The second criterion we examine is the effect of the restriction on the child’s right to bring his cause of action. A child has no right to bring a cause of action on his own unless disability has been removed.
Gulf, C. & S.F. Ry. Co.
v.
Styron,
We agree with Dr. Votteler that both the purpose and basis for article 5.82 are legitimate. Additionally, we recognize that the length of time that insureds are exposed to potential liability has a bearing on the rates that insurers must charge. We cannot agree, however, that the means used by the legislature to achieve this purpose, article 5.82, section 4, are reasonable when they are weighed against the effective abrogation of a child’s right to redress. Under the facts in this case, Lori Beth Sax is forever precluded from having her day in court to complain of an act of medical malpractice. Furthermore, the legislature has failed to provide her any adequate substitute to obtain redress for her injuries.
See, e.g., Middleton v. Texas Power & Light Co.,
We conclude that as to that part of the cause of action for medical malpractice unique to the minor, article 5.82, section 4, is unreasonable. This statute effectively abolishes a minor’s right to bring a well-established common law cause of action without providing a reasonable alternative. Therefore, we declare the limitations provision of article 5.82, section 4, to be in violation of article I, section 13 of the Texas Constitution.
Having so concluded, we must now consider what claims in behalf of Lori Beth Sax remain viable. Upon remand, if she proves her case as to malpractice of Dr. Votteler, Lori Beth would be entitled to an award for her physical pain and mental anguish, both past and future, disfigurement, loss of earning capacity after she attains the age of eighteen years, any medical expenses that she may in reasonable probability incur after her eighteenth birthday, and any other damages peculiar to her. However, because the Saxes have allowed the statute of limitations to run on their causes of action, they are barred from recovering medical costs in the past or those which Lori Beth may in all reasonable probability incur prior to her eighteenth birthday. Likewise, the Saxes are not entitled to recover for any loss of earning capacity that Lori Beth may have sustained between the time of injury and her eighteenth birthday.
Having found the provision of the statute in question to be unconstitutional as it applies to a minor’s cause of action, wc reverse in part and affirm in part the judgments of the courts below and remand this cause to the trial court.
Notes
. Article 5.82 became effective June 3, 1975, and expired by its own terms on December 31, 1977. The next regular session of the Texas Legislature enacted the Medical Liability and Insurance Improvement Act. Tex.Rev.Civ.Stat. Ann. art. 4590i. Section 10.01 of that Act contains a statute of limitations provision that is substantially the same as article 5.82, section 4, except under the amended law “... minors under the age of twelve years shall have until their fourteenth birthday in which to file, or have filed on their behalf, the claim.” Article 4590i became effective August 29, 1977, and is to terminate of its own accord on August 31, 1993.