Borowski v. Ayers

• Citation: 524 S.W.3d 292
• Decision Date: 12 October 2016
• Docket Number: No. 10-15-00239-CV.,10-15-00239-CV.
• Parties: Adam M. BOROWSKI, M.D., Brian D. Bull, M.D., and Hillcrest Family Health Center, Appellants v. Karen AYERS, Individually and as Representative of the Estate of Daryl Lynn Ayers, Deceased, and Ethan Ayers, Appellees
• Court: Court of Appeals of Texas

524 S.W.3d 292

Adam M. BOROWSKI, M.D., Brian D. Bull, M.D., and Hillcrest Family Health Center, Appellants

v.Karen AYERS, Individually and as Representative of the Estate of Daryl Lynn Ayers, Deceased, and Ethan Ayers, Appellees

No. 10-15-00239-CV.

Court of Appeals of Texas, Waco.

Delivered and filed October 12, 2016

Matthew C. Witt, Tasha Tedrow Roberts, Witt McGregor & Bourland, PLLC, Woodway, TX, Russell G. Thornton, Thiebaud Remington Thornton Bailey, LLP, Dallas, TX, for Appellant/Relator.

M. Raymond Hatcher II, Alan Robertson, Sloan Bagley Hatcher & Perry, Longview, TX, Morgan McPheeters, F. Leighton Durham, Kelly Durham & Pittard, LLP, Dallas, TX, for Appellees/Respondents.

Before Chief Justice Gray, Justice Davis, and Justice Scoggins

OPINION

REX D. DAVIS, Justice

On September 4, 2012, Appellees Karen Ayers, individually and as representative of the estate of Daryl Lynn Ayers, deceased, and Ethan Ayers filed a health care liability suit against Appellants Adam M. Borowski, M.D., Brian Bull, M.D., Hillcrest Family Health Center, and several other defendants. The Ayerses allege that Daryl died because Dr. Borowski, Dr. Bull, and other defendants failed to recognize and treat an aortic dissection between July 24 and July 26, 2010. The Ayerses assert that Hillcrest is vicariously liable for Dr. Bull's alleged negligence.

Dr. Borowski filed a traditional motion for summary judgment, contending that the Ayerses' claims are barred by the statute of limitations. To support the motion, Dr. Borowski included as summary-judgment evidence his own affidavit and the affidavit of Nathan Forrest, D.O., one of the other defendants at the time.¹ Dr. Forrest stated in his affidavit that shortly after June 7, 2012, he received a letter entitled "Notice of Claim," advising that a health care liability claim may be asserted for negligence in the medical care provided to Daryl Ayers on or about July 24, 2010. The Notice of Claim letter, a copy of which was attached to Dr. Forrest's affidavit, was also addressed to Dr. Bull, Providence Health Center c/o its registered agent Mr. Kent Keahey, and Dennis M. Plante, M.D. Dr. Forrest also stated in his affidavit that a document entitled "Authorization Form for Release of Protected Health Information" accompanied the Notice of Claim letter. The authorization form, a copy of which was also attached to Dr. Forrest's affidavit, stated in relevant part:

B. The health information to be obtained, used, or disclosed extends to and includes the verbal as well as the written and is specifically described as follows:

....

2. The health information in the custody of the following physicians or health care providers who have examined, evaluated, or treated DARYL LYNN AYERS during a period commencing five years prior to the incident made the basis of the accompanying Notice of Health Care Claim.

ALL HEATH [sic ] CARE PROVIDERS PROVIDING CARE/TREATMENT TO DARYL LYNN AYERS.

Dr. Borowski stated in his affidavit that he did not receive a Notice of Claim letter from the Ayerses or their attorney before suit was filed.

Based on this summary-judgment evidence, Dr. Borowski made the following argument: Because the authorization form did not list the name or current address of any physicians or health care providers who had treated Daryl during the five years before the alleged incident, it was "essentially rendered meaningless" and failed to comply with the requirements of section 74.052.² See TEX. CIV. PRAC. & REM. CODE ANN. § 74.052 (West Supp. 2016). Because the authorization form failed to comply with section 74.052, the Ayerses did not provide the proper statutory pre-suit notice to any of the defendants as required by section 74.051. See id. § 74.051 (West 2011). The Ayerses were therefore not entitled to the seventy-five-day tolling benefit of pre-suit notice, and the Ayerses' claims, which were not filed until after the two-year limitations period had expired, are thus barred by the statute of limitations. See id. § 74.251(a) (West 2011).

Dr. Bull and Hillcrest subsequently filed a traditional motion for summary judgment, asserting substantially the same argument. To support their motion, Dr. Bull and Hillcrest included as summary-judgment evidence the Ayerses' original and first amended petitions and Dr. Bull's own affidavit. Dr. Bull stated in his affidavit that, after June 7, 2012, he received from the Ayerses' counsel the "Notice of Claim" letter and "Authorization Form for Release of Protected Health Information," copies of which were attached to his affidavit. Dr. Bull also stated that these were the first and only documents purporting to be a Notice of Claim involving his care of Daryl that he received from the Ayerses' counsel or any other attorney.

The trial court generally denied Appellants' motions for summary judgment. Dr. Borowski filed a motion to amend the order denying summary judgment and for interlocutory appeal. The trial court signed an amended order, again denying Appellants' motions for summary judgment but permitting an appeal from the interlocutory order. We initially granted Appellants' joint petition for permission to appeal the amended order but then dismissed the appeal for want of jurisdiction. Borowski v. Ayers , 432 S.W.3d 344, 346, 348 (Tex. App.–Waco 2013, no pet.). We concluded that the trial court did not substantively rule on the controlling legal issue presented in the appeal and that the interlocutory order did not therefore involve a controlling question of law, a requirement of subsection 51.014(d) for the trial court to permit an appeal from an order that is not otherwise appealable. Id. at 347 ; see TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d) (West Supp. 2016).

Dr. Borowski then filed in the trial court a motion for rehearing of his motion for summary judgment and, in the alternative, motion to clarify the summary judgment order. The trial court subsequently signed a second amended order again denying Appellants' motions for summary judgment but specifying that the trial court's "sole basis" for its denial of the motions for summary judgment was:

4. Plaintiffs' "Authorization Form for Release of Protected Health Information" meets the legal requirements of Section 74.052 of the Texas Civil Practice & Remedies Code for the sole reason that: Plaintiffs' Authorization tracked the statutory text of the statute, which, when coupled with their inclusion of the statement in Section B(2) of the Authorization form, "ALL HEALTH CARE PROVIDERS PROVIDING CARE/TREATMENT TO DARYL LYNN AYERS," constituted substantial compliance with Section 74.05(c) [sic ] of the Texas Civil Practice & Remedies Code . Utilization of that Authorization, combined with Plaintiffs' compliance with the legal requirement of Sections 74.051 and 74.052 of the Texas Civil Practice & Remedies Code to provide a notice of health care claim, utilizing the above described Authorization form, at least 60 days before the filing of Plaintiffs' lawsuit, therefore constituted substantial compliance with the notice requirements of the statute.

5. Because Plaintiffs substantially complied with the requirements to provide statutory notice of claim, as set forth in Section 74.051(a) of the Texas Civil Practice & Remedies Code , the applicable statute of limitations in Section 74.251(a) of the Texas Civil Practice & Remedies Code was tolled by operation of Section 74.051(c) of the Texas Civil Practice & Remedies Code , such that Plaintiffs timely filed their lawsuit on September 4, 2012.

The trial court also again permitted an appeal from the interlocutory order.

We granted Appellants' petitions for permission to appeal this second amended order denying their motions for summary judgment. In their sole issue,³ Appellants contend that the Ayerses are not entitled to the benefit of subsection 74.051(c)'s tolling provision because a medical authorization like the one provided by the Ayerses, which generally tracks the statutory text of subsection 74.052(c) but fails to list the name and current address of any health care provider who examined, evaluated, or treated the patient during the five years before the incident that is the basis of the notice of health care claim, does not comply or substantially comply with subsection 74.052(c)'s requirements.

We review de novo a trial court's grant or denial of a traditional motion for summary judgment. See Creditwatch, Inc. v. Jackson , 157 S.W.3d 814, 816 n.7 (Tex. 2005). In reviewing a traditional summary judgment, we must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented. See Goodyear Tire & Rubber Co. v. Mayes , 236 S.W.3d 754, 755 (Tex. 2007). The movant carries the burden of establishing that no material fact issue exists and that it is entitled to judgmentas a matter of law. TEX. R. CIV. P. 166a(c) ; M.D. Anderson Hosp. & Tumor Inst. v. Willrich , 28 S.W.3d 22, 23 (Tex. 2000). The nonmovant has no burden to respond to a summary-judgment motion unless the movant conclusively establishes its cause of action or defense. M.D. Anderson Hosp. & Tumor Inst. , 28 S.W.3d at 23. Once the movant produces sufficient evidence conclusively establishing its right to summary judgment, the burden shifts to the nonmovant to present evidence sufficient to raise a fact issue. Centeq Realty, Inc. v. Siegler , 899 S.W.2d 195, 197 (Tex. 1995). In reviewing a traditional summary judgment, we must consider all the evidence in the light most favorable to the nonmovant, indulging every reasonable inference in favor of the nonmovant and resolving any doubts against the motion. See Goodyear Tire & Rubber Co. , 236 S.W.3d at 756.

A health care liability claim has a two-year limitations period. TEX. CIV. PRAC. & REM. CODE ANN. § 74.251(a).⁴ A claimant, however, can obtain a seventy-five-day tolling period by complying with certain notice requirements. Id. § 74.051(c).⁵ There is no dispute that the Ayerses filed suit more than two...