Maypole v. Acadian Ambulance Serv., Inc.

• Decision Date: 10 June 2022
• Docket Number: 05-18-00539-CV
• Citation: 647 S.W.3d 533
• Parties: Gary Lew MAYPOLE, Sr., Individually and as Personal Representative of the Estate of Gary Lew Maypole II, Deceased, and Tamara Jean Maypole, as Next Friend of H.K.M. and D.T.M., Minors, Appellants v. ACADIAN AMBULANCE SERVICE, INC. and Acadian Ambulance Service of Texas, LLC, Appellees
• Court: Texas Court of Appeals

647 S.W.3d 533

Gary Lew MAYPOLE, Sr., Individually and as Personal Representative of the Estate of Gary Lew Maypole II, Deceased, and Tamara Jean Maypole, as Next Friend of H.K.M. and D.T.M., Minors, Appellants

v.ACADIAN AMBULANCE SERVICE, INC. and Acadian Ambulance Service of Texas, LLC, Appellees

No. 05-18-00539-CV

Court of Appeals of Texas, Dallas.

Opinion Filed June 10, 2022

Matthew J. Kita, Law Office of Matthew J. Kita, Dallas, Sherri Ann Saucer, Fears Nachawati, PLLC, Dallas, for Appellant.

Mark Pharr III, Galloway Johnson Tompkins Burr & Smith, Lafayette LA, Berenice Medellin Tovar Pruettiangkura, Galloway, Johnson, Tompkins, Burr & Smith, Dallas, Shane McDonald, Foley Gardere/Foley & Lardner LLP, Houston, for Appellee.

Before the Court sitting En Banc¹

EN BANC OPINION

Opinion by Justice Molberg On appellants’ motion for rehearing en banc, we withdraw our opinion dated August 21, 2019, and vacate the judgment of that date.

This is now the opinion of the Court.

Gary Lew Maypole, Sr., individually and as personal representative of the estate of Gary Lew Maypole II (Gary), and Tamara Jean Maypole, as next friend of Gary's two minor children—H.K.M. and D.T.M.—(collectively, the Maypoles), appeal the trial court's traditional summary judgment in favor of Acadian Ambulance Service, Inc. and Acadian Ambulance Service of Texas, LLC (collectively, Acadian). On appeal, the Maypoles argue the trial court erred in granting summary judgment because (1) Acadian failed to conclusively establish their medical authorization did not substantially comply with Chapter 74 of the Texas Civil Practice and Remedies Code,² rendering their claims barred by the statute of limitations, and (2) in any case, abatement—and not dismissal—was the appropriate remedy for any alleged omissions in the medical authorization.

We reverse the trial court's judgment and remand the case for proceedings consistent with this opinion.

BACKGROUND

According to the Maypoles and their medical expert, Ralph Terpolilli, M.D., forty-nine-year-old Gary died because critical-care-transport personnel of Acadian "failed to perform endotracheal suctioning of [Gary's endotracheal] tube in a competent manner by leaving [a] suction catheter

fully inserted inside the [endotracheal] tube" during a medical transport on July 20, 2015. The transport team's failure "to recognize[ ] and correct this error in a timely manner was directly responsible for [Gary's] clinical deterioration to a hypoxic, bradycardic, cardiac arrest with resultant anoxic brain injury and death." In Dr. Terpolilli's opinion, Acadian's actions and inactions during the transport constituted "a wide departure from" the applicable standard of care.

On July 12, 2015—some eight days before the events described above—Gary was admitted to Texas Regional Medical Center in Sunnyvale, Texas,³ for shortness of breath related to long-term heart failure

. Gary's condition deteriorated, and his transfer was arranged from the intensive care unit at Texas Regional Medical Center to the Heart Hospital Baylor Plano (Heart Hospital) for surgery evaluation. On July 20, 2015, Acadian transported Gary to the Heart Hospital intensive care unit where "he was transitioned from Acadian critical care equipment to Baylor equipment." Gary suffered cardiac arrest but was resuscitated; however, he suffered an anoxic brain injury that prevented cardiac surgery. Gary's family subsequently withdrew life support, and he was pronounced dead on July 23, 2015. What occurred during the twenty-nine-mile July 20, 2015 Acadian ambulance ride forms the basis of the Maypoles’ health care liability claims.

On August 30, 2017, appellants—Gary's father and two minor children, H.K.M. and D.T.M.—filed this wrongful death and survival action alleging health care provider negligence by Acadian.⁴ Appellants attached Dr. Terpolilli's report to their original petition, stating they intended it to constitute service of the expert report required to be served on Acadian under section 74.351 of the Texas Medical Liability Act (TMLA). TEX. CIV. PRAC. & REM. CODE § 74.351(a).⁵

On June 12, 2017—more than sixty days before filing suit—appellants provided pre-suit notice-of-claim to Acadian by certified mail, return receipt requested, accompanied by an authorization for the release of Gary's health care information, both of which are required by the TMLA. See id. §§ 74.051, 74.052. The TMLA specifies, "Notice given as provided in this chapter shall toll the applicable statute of limitations to and including a period of 75 days following the giving of the notice, and this tolling shall apply to all parties and potential parties." Id. § 74.051(c). It was during the extended limitations period that appellants filed suit.

After filing an answer to the lawsuit, and after the extended limitations period expired, Acadian filed an initial and then an amended motion for traditional summary judgment, claiming appellants’ case should end without being heard on the merits because the medical authorization appellants served with their timely pre-suit notice was deficient. This deficiency, Acadian argued, deprived the Maypoles of the extended filing period.

On March 5, 2018, the Maypoles filed a response to Acadian's summary judgment motion. They asserted their medical authorization was "substantially compliant" with Chapter 74; the authorization did not prevent Acadian from obtaining Gary's medical records; all known healthcare providers were identified in the authorization; and this Court's decision in Mock v. Presbyterian Hospital of Plano , 379 S.W.3d 391, 394–95 (Tex. App.—Dallas 2012, pet. denied), supported their contention that their medical authorization was sufficient to support the tolling of limitations. On April 10, 2018, the trial court entered summary judgment in favor of Acadian on the ground the Maypoles’ claims were barred by limitations. This appeal followed.

STANDARD OF REVIEW

We review de novo the trial court's ruling on a motion for summary judgment. Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005). In a traditional motion for summary judgment, the movant must establish that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. TEX. R. CIV. P . 166a(c). The motion must state the specific grounds relied upon for summary judgment. Id. A genuine issue of material fact exists if the nonmovant produces more than a scintilla of probative evidence regarding the challenged element. Ford Motor Co. v. Ridgway , 135 S.W.3d 598, 600 (Tex. 2004). A defendant moving for traditional summary judgment must conclusively negate at least one essential element of each of the plaintiff's causes of action or conclusively establish all elements of an affirmative defense. Sci. Spectrum, Inc. v. Martinez , 941 S.W.2d 910, 911 (Tex. 1997). When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant and resolve any doubts in the nonmovant's favor.

Valence Operating Co. , 164 S.W.3d at 661.

APPLICABLE LAW

Health care liability claims in Texas are governed by the Texas Medical Liability Act (TMLA), a statute designed "to eliminate frivolous healthcare-liability claims, while allowing potentially meritorious claims to proceed." See Hebner v. Reddy , 498 S.W.3d 37, 39 (Tex. 2016) (describing this as the TMLA's "purpose").

Health care liability claims have a two-year statute of limitations. TEX. CIV. PRAC. & REM. CODE § 74.251(a). The statute of limitations commences from the occurrence of the breach or tort; the last date of the relevant course of treatment; or the last date of the relevant hospitalization. Mitchell v. Methodist Hosp. , 376 S.W.3d 833, 835 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). A plaintiff, however, may obtain a seventy-five-day tolling period by complying with certain statutory notice requirements.

To allow a defendant physician or health care provider in a health care liability case to obtain medical information from health care providers, the TMLA requires plaintiffs to accompany their mandatory pre-suit notice of their claim with an authorization for the release of the claimant's medical records to each defendant against whom a claim is made. TEX. CIV. PRAC. & REM. CODE § 74.051. If the plaintiff provides both the notice and medical authorization under section 74.051, the two-year limitations period is tolled for a period of seventy-five days. Id. § 74.051(a), (c) ; see also Carreras v. Marroquin , 339 S.W.3d 68, 74 (Tex. 2011) ("[F]or the statute of limitations to be tolled in a health care liability claim pursuant to Chapter 74, a plaintiff must provide both the statutorily required notice and the statutorily required authorization form."). Section 74.051 provides, in relevant part:

Any person or his authorized agent asserting a health care liability claim shall give written notice of such claim by certified mail, return receipt requested, to each physician or health care provider against whom such claim is being made at least 60 days before the filing of a suit in any court of this state based upon a health care liability claim. The notice must be accompanied by the authorization form for release of protected health information as required under Section 74.052.

TEX. CIV. PRAC. & REM. CODE § 74.051(a).

The purpose of the pre-suit notice and medical authorization requirement is " ‘to encourage the parties to negotiate and settle disputes prior to suit.’ " Hebner , 498 S.W.3d at 42 (quoting, with added emphasis, Tex. W. Oaks Hosp., LP v. Williams , 371 S.W.3d 171, 189–90 (Tex. 2012) ); Carreras , 339 S.W.3d at 73 ("The Legislature intended that ‘by requiring a potential claimant to authorize the disclosure of otherwise privileged information sixty days before suit is filed, the statute [would] provide[ ] an opportunity for health care providers to investigate claims and possibly settle those with merit at an early stage.’ ") (quoting In re Collins , 286 S.W.3d 911,...