Mock v. Presbyterian Hosp. of Plano
| Decision Date | 09 August 2012 |
| Docket Number | No. 05–11–00936–CV.,05–11–00936–CV. |
| Citation | 379 S.W.3d 391 |
| Parties | John Michael MOCK, Sr., Individually and as Representative of the Estate of Judith I. Mock, Joseph David Mock, John Michael Mock, Jr., and Jared William Mock, Appellants v. PRESBYTERIAN HOSPITAL OF PLANO, Texas, Narcisa A. Dusa, M.D., and Daniel J. Hopson, M.D., Appellees. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
David Wayne Dumas, Andy McSwain, Fulbright Winniford, P.C., for Appellants.
Edward P. Quillin, Wesley David Raff, Quillin Law Firm, P.C., David McCue, Bruce A. Pauley, McCue–Pauley & Associates, P.C., Allan L. Campbell, Wendy Campbell & Associates, PC, McKinney, TX, for Appellees.
Before Justices FITZGERALD, MURPHY, and FILLMORE.
This is a medical-malpractice case. Appellants, who were plaintiffs in the trial court, appeal a take-nothing summary judgment rendered on the ground of limitations. The question presented is whether appellants were entitled to a 75–day tolling period under section 74.051(c) of the Texas Civil Practice and Remedies Code. We conclude that they were, and we therefore reverse the judgment of the trial court.
Appellants are the surviving husband and children of decedent Judith I. Mock. They alleged the following facts in support of their claims. Appellee Dusa admitted decedent to appellee Presbyterian Hospital of Plano, Texas in December 2007 for evaluation and treatment of severe sciatica pain. Dusa consulted with appellee Hopson about decedent's diagnosis and treatment.During her hospitalization, decedent received many medications, including medications known to cause respiratory depression. The doctors and nurses knew that decedent was asthmatic, suffered from obstructive sleep apnea, and required a CPAP machine when she was asleep. On December 16, 2007, decedent was “discovered unresponsive in her room,” and attempts to resuscitate her failed. On February 23, 2010, appellants sued appellees, along with some other defendants who were later nonsuited, for wrongful death. Appellants alleged that they had given appellees pre-suit notice of their claim pursuant to sections 74.051 and 74.052 of the civil practice and remedies code.
Each appellee filed a motion for summary judgment. The motions were substantively identical. Appellees argued that appellants' pre-suit notices were defective under section 74.052, and that the notices therefore did not trigger the 75–day tolling period provided by section 74.051(c). More specifically, appellees argued that the “Authorization Form for Release of Protected Health Information” furnished by appellants was defective under section 74.052 because it did not authorize appellees to obtain the specified health information about decedent. Instead, the authorization form authorized appellants' counsel to obtain that health information. Because of this defect in the authorization form, appellees contended that appellants were not entitled to a 75–day tolling period and thus that appellants' claims were time-barred because appellants filed suit two years and 69 days after decedent's death.
Appellants filed a summary-judgment response in which they argued that they were entitled to the 75–day tolling period because the medical authorization form they used mirrored the form set forth in section 74.052(c) and satisfied the purposes underlying the relevant statutes. In particular, appellants argued that whenever any defendant or insurance carrier involved in the case requested medical records or a medical-records release from appellants, the requested documents were promptly provided to them. Appellants filed summary-judgment evidence to support their factual contentions.1
The trial judge granted appellees' motions for summary judgment and rendered a take-nothing judgment against appellants. Appellants timely filed their notice of appeal.
In a single issue on appeal, appellants contend that the trial judge erred by granting appellees' motions for summary judgment.
We review a summary judgment de novo. Smith v. Deneve, 285 S.W.3d 904, 909 (Tex.App.-Dallas 2009, no pet.). When we review a traditional summary judgment in favor of a defendant, we determine whether the defendant conclusively disproved an element of the plaintiff's claim or conclusively proved every element of an affirmative defense. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Smith, 285 S.W.3d at 909. When a summary-judgment motion is based on the affirmative defense of the statute of limitations, the defendant must conclusively prove when the cause of action accrued. KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). We must take evidence favorable to the nonmovant as true, and we must indulge every reasonable inference and resolve every doubt in favor of the nonmovant. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex.1994); Smith, 285 S.W.3d at 909.
Health care liability claims are subject to a two-year statute of limitations. Tex. Civ. Prac. & Rem.Code Ann. § 74.251(a) (West 2011); Jose Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 68, 71 (Tex.2011). A claimant can obtain a 75–day tolling period by complying with certain notice requirements found in Chapter 74. The pertinent provisions are as follows:
(a) 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.
....
(c) 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.
Tex. Civ. Prac. & Rem.Code Ann. § 74.051(a), (c).
(a) Notice of a health care claim under Section 74.051 must be accompanied by a medical authorization in the form specified by this section. Failure to provide this authorization along with the notice of health care claim shall abate all further proceedings against the physician or health care provider receiving the notice until 60 days following receipt by the physician or health care provider of the required authorization.
(b) If the authorization required by this section is modified or revoked, the physician or health care provider to whom the authorization has been given shall have the option to abate all further proceedings until 60 days following receipt of a replacement authorization that must comply with the form specified by this section.
Id.§ 74.052(a), (b). Section 74.052(c) states that the required medical authorization form “shall be in the following form,” and it proceeds to give the text of the form, with several blanks to be filled in with information specific to the claimant's claim. Id.§ 74.052(c).
Thus, the 75–day tolling period is triggered if the claimant gives notice “as provided” in Chapter 74. Id. § 74.051(c). In the Carreras case, the supreme court stated that the claimant must provide both written notice of the claim and a medical authorization form in order to give notice “as provided” in chapter 74 and in order to trigger the tolling provision. 339 S.W.3d at 73. In that case, the claimants provided the notice of claim within limitations but did not provide any medical authorization form until after the two-year limitations period expired. Id. at 70. The claimants filed suit more than two years after their claims accrued, but less than two years and 75 days after accrual. Id. The supreme court held that the claimants' failure to furnish a medical authorization form within the limitations period meant the 75–day tolling provision did not apply, and that their claim was therefore time-barred. Id. at 74.
Appellants contend their claims are not time-barred because they successfully triggered the 75–day tolling period provided for by section 74.051(c). The question presented is whether a claimant is entitled to the 75–day tolling period if he timely furnishes the statutorily prescribed medical authorization form but completes one of the blanks in the medical authorization form incorrectly. We conclude that such a claimant is entitled to the 75–day tolling period and thus that appellees were not entitled to summary judgment in this case.
The statute provides that the written notice of claim “must be accompanied by a medical authorization in the form specified by” section 74.052. Tex. Civ. Prac. & Rem.Code Ann. § 74.052(a). Section 74.052(c) states that the authorization “shall be in the following form” and proceeds to set out the precise text of the medical authorization form, with several blanks that the claimant must fill in to customize the form for the particular claim. Id. § 74.052(c). The prescribed form begins as follows:
A. I, __________ (name of patient or authorized representative), hereby authorize __________ (name of physician or other health care provider to whom the notice of health care claim is directed) to obtain and disclose (within the parameters set out below) the protected health information described below for the following specific purposes....
Id. Appellants' medical authorization form precisely tracked the statutorily prescribed text. Appellees challenged the form because appellants filled the second blank out incorrectly. Instead of putting appellees' names in the second blank, appellants put the name of appellants' attorney.
In Carreras, the supreme court held that tolling is unavailable if the claimant fails to furnish any medical authorization form at all within limitations. See Carreras, 339 S.W.3d at 72 (...
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