Charles P. Brannan and Caren Ann Brannan v. Dennis M. Toland, M.D. and North Cypress Medical Center Operating Company, Ltd. ( 2013 )

Opinion issued August 6, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00051-CV
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CHARLES P. BRANNAN AND CAREN ANN BRANNAN, APPELLANTS
V.
DENNIS M. TOLAND, M.D. AND NORTH CYPRESS MEDICAL CENTER
OPERATING COMPANY, LTD., APPELLEES
On Appeal from the 157th Judicial District Court
Harris County, Texas
Trial Court Cause No. 2012-50921
MEMORANDUM OPINION
In this health-care liability case, Charles and Caren Brannan appeal a
summary judgment in favor of Dennis Toland and North Cypress Medical Center
Operating Company. The trial court ruled that limitations had expired more than
three months before the Brannans filed suit, and that the Brannans had failed to toll
limitations by giving notice of their health care liability claim before the
limitations period expired. On appeal, the Brannans contend that they provided
sufficient notice of their claim in substantial compliance with Texas Civil Practice
and Remedies Code sections 74.051 and 74.052. If not, they further contend, those
sections violate the open courts provision of the Texas Constitution as applied to
their claims. We affirm.
Background
On June 21, 2010, Toland performed a colonoscopy on Charles Brannan,
and allegedly negligently failed to diagnose Charles’s anal squamous cell
carcinoma. On June 15, 2012, the Brannans sent Toland and North Cypress
Medical Center a notice of a health-care-liability claim, pursuant to section 74.051
of the Texas Civil Practice and Remedies Code. Rather than providing the
statutorily-required medical release form, the Brannans attached a signed, but
otherwise blank, HIPAA medical records release authorization form. Fields in the
form providing for the name and address of the patient, the name of the health care
provider authorized to release the information, the persons to whom the records
could be released, and the types of records to be released were blank. In the
accompanying notice letter, the Brannans stated that they had attached the form to
authorize Toland to release Charles’s medical records to the Brannans’ attorney.
The Brannans sued on September 4, 2012, for injuries resulting from the
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misdiagnosis. The trial court granted Toland and North Cypress Medical Center’s
motions for summary judgment based on limitations.
Discussion
Standard of Review
We review de novo the trial court’s ruling on a motion for summary
judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d
844, 848 (Tex. 2009). In a traditional motion for summary judgment, the movant
must establish that no genuine issue of material fact exists and the movant is thus
entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). When reviewing a
summary judgment, we take as true all evidence favorable to the non-movant and
resolve any doubts in the non-movant’s favor. Valence Operating Co. v. Dorsett,
164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accid. Ins. Co. v. Knott, 128
S.W.3d 211, 215 (Tex. 2003).
Traditional summary judgment is proper only if the movant establishes that
no genuine issue of material fact exists, and that 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 non-movant produces more than a scintilla of probative evidence
regarding the challenged element. See Ford Motor Co. v. Ridgway, 135 S.W.3d
598, 600 (Tex. 2004); see also Forbes Inc. v. Granada Bioscis., Inc., 124 S.W.3d
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167, 172 (Tex. 2003) (“More than a scintilla of evidence exists if it would allow
reasonable and fair minded people to differ in their conclusions.”). A defendant
moving for traditional summary judgment must conclusively negate at least one
essential element of each of the plaintiff’s causes of action. Sci. Spectrum, Inc. v.
Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
Proper Notice and Limitations for Health Care Liability Claims
A health-care-liability claim has a two-year limitations period. TEX. CIV.
PRAC. & REM. CODE ANN. § 74.251(a) (West 2011). Plaintiffs asserting health-care
liability claims must provide at least sixty days’ notice to each physician or health
care provider against whom a claim is made, before filing suit. Id. § 74.051. Notice
provided under section 74.251 tolls the limitations period for seventy-five days. Id.
§ 74.051(c); Rowntree v. Hunsucker, 833 S.W.2d 103, 104 n.2 (Tex. 1992);
Rubalcaba v. Kaestner, 981 S.W.2d 369, 373 (Tex. App.—Houston [1st Dist.]
1998, pet. denied). A medical-records release form, as statutorily-detailed in
section 74.052, must accompany the notice. TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.051 (providing that “[t]he notice must be accompanied by the authorization
form for release of protected health information as required under Section
74.052.”); Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 189 (Tex. 2012).
Section 74.052 provides that “[t]he medical authorization required by this
section shall be in the following form,” and it proceeds to give the text of the form,
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with blanks to be filled in with information specific to the plaintiff’s claim. TEX.
CIV. PRAC. & REM. CODE ANN. § 74.052 (West 2011). Tolling occurs only when
the plaintiff provides notice and the executed medical-records release authorization
form. See Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 189 (Tex. 2012);
Jose Carreras, M.D., P.A. v Marroquin, 339 S.W.3d 68, 73 (Tex. 2011).
The notice and authorization form are intended to afford the defendant the
ability to investigate the claim and resolve it prior to protracted litigation. TEX.
CIV. PRAC. & REM. CODE ANN. § 74.052; Marroquin, 339 S.W.3d at 73. The
authorization form grants the defendant physician or health-care provider
authorization to disclose the plaintiff’s medical records. TEX. CIV. PRAC. & REM.
CODE ANN. § 74.052. The form must also identify the plaintiff’s treating
physicians for the five years before “the incident made the basis of the
accompanying Notice of Health Care Claim,” and authorize the defendants to
obtain the plaintiff’s medical records from these physicians. Id. § 74.052(b);
Mitchell v. Methodist Hosp., 376 S.W.3d 833, 837 (Tex. App.—Houston [1st Dist.]
2012, pet. denied). The Brannans did not accompany their notice letter with the
form required by section 74.052. Instead, they provided a blank medical-records
release authorization form, containing Charles Brannan’s signature only. The
Brannans’ form did not identify specific records from other medical providers and
did not give permission to the defendants to seek the disclosure of other records.
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As the Brannans observed in their notice letter, the form merely authorized Toland
to disclose his medical records to the Brannans’ attorney, but not to obtain any
records from other physicians. Because the form does not list any treating
physicians for the five years preceding the claim and does not authorize the
defendants to obtain medical records from these providers, as required by section
74.052, it fails to comply with the statute.
The facts in this case are similar to those in Mitchell. There, the plaintiffs
provided the defendants with a form that generally authorized disclosure of the
plaintiff’s protected health-care information. Mitchell, 376 S.W.3d at 837. Our
Court rejected the Mitchells’ form as a valid statutory-authorization form under
section 74.052, because the form did not list the plaintiffs’ treating physicians for
the last five years, nor did it authorize the defendants to obtain medical records
from those physicians. Id. Without these features, we held that the form could not
fulfill the purpose of the statutory form, and thus it was insufficient to toll
limitations. Id.
The Brannans rely on Mock v. Presbyterian Hospital of Plano to contend
that the trial court should have accepted the form as in substantial compliance with
section 74.052, thus tolling the statute of limitations. 379 S.W.3d 391, 395 (Tex.
App.—Dallas 2012, pet. denied). In Mock, the plaintiff gave notice and provided
the statutorily-prescribed authorization form, but in one of five fields on the form,
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the plaintiff mistakenly entered the name of the defendant physician’s attorney,
rather than the physician. Id. at 394. The plaintiff had properly entered the
physician’s name in four similar fields. Id. at 395 n.2. The Dallas Court of Appeals
held that, despite the mistake, the defendant had fair notice of the suit and was
authorized to obtain the plaintiff’s records. Id. at 395. In contrast, the Brannans
provided a non-compliant form that did not authorize Toland to obtain the
Brannans’ medical records. The Brannans’ reliance on Mock is thus misplaced. See
id.
The Brannans also rely on Rabatin v. Kidd, in which the El Paso Court of
Appeals held that a form that neither included the names of plaintiff’s doctors for
the last five years nor provided authorization to obtain them was nonetheless
sufficient because the physician had in fact used the form to obtain records, thus
permitting him to investigate the claim. 281 S.W.3d 558, 562 (Tex. App.—El Paso
2008, no pet.). The form in this case does not authorize the defendant doctor to
obtain Charles’s medical records, nor does the record assure us, as the one in
Rabatin, that the doctor nevertheless actually obtained the relevant records. In
contrast, the Brannans’ accompanying letter states that any medical records should
be released to the Brannans’ attorney. Thus, Rabatin, too, is distinguishable. See
id. at 562.
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Accordingly, we hold that the authorization form that the Brannans provided
did not toll the statute of limitations under section 74.051. See id. Because the
Brannans failed to give proper notice pursuant to sections 74.051 and 75.052
before the statute of limitations had expired, and then filed suit after the limitations
period, the trial court correctly held that their suit is time-barred. See id.
Open Courts
The open courts provision of the Texas Constitution provides that litigants
must receive an opportunity to redress their grievances in court. TEX. CONST. ANN.
art. 1, § 13 (“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.”);
Odak v. Arlington Mem’l Hosp. Found., 934 S.W.2d 868, 871 (Tex. App.—Fort
Worth 1996, writ denied). The open courts provision embodies the rationale that
the legislature “has no power to make a remedy by due course of law contingent
upon an ‘impossible condition.’” Moreno v. Sterling Drug, Inc., 787 S.W.2d 348,
355 (Tex. 1990). To prevail on their challenge under the open courts provision, the
Brannans must demonstrate that the legislature has restricted their common-law
claim in an unreasonable or arbitrary manner, when balanced against the purpose
and basis of the statute. See Odak, 934 S.W.2d at 871. A plaintiff may not obtain
relief under the open courts provision if he does not use due diligence in pursuing
his claim. Stockton v. Offenbach, 336 S.W.3d 610, 618 (Tex. 2011).
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The parties do not dispute that the Brannans’ medical negligence cause of
action is recognized at common law. Thus, here, the Brannans must show that an
unconstitutional application of the notice and medical release authorization
requirements prevented them from pursuing their claim. See Odak, 934 S.W.2d at
872; Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 461 (Tex. App.—Austin 2006,
no pet.). Thus, we examine whether Chapter 74 of the Civil Practices and
Remedies Code unreasonably or arbitrarily restricts their claim, when balanced
against the purpose of the statute. See Odak, 934 S.W.2d at 871.
The notice and authorization form requirements afford the defendant the
“ability to investigate the claim and resolve it prior to protracted litigation.”
Marroquin, 339 S.W.3d at 73. A strong public policy interest favors voluntary
settlements. See Wright v. Sydow, 173 S.W.3d 534, 551–52 (Tex. App.—Houston
[14th Dist.] 2004 pet. denied); TEX. CIV. PRAC. & REM. CODE § 154.002 (West
2011). The proper form to authorize access and disclosure is widely available and
printed as an attachment to the statute. TEX. CIV. PRAC. & REM. CODE ANN.
§ 74.052. Because its provisions provide for the early investigation of claims and
potential early settlement, the notice requirements advance the purpose of the
overall health-care liability statutory framework—to investigate and resolve claims
at the outset, where possible. Marroquin, 339 S.W.3d at 73. The Brannans have not
otherwise shown that compliance with the notice and authorization requirements of
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chapter 74 were unduly burdensome in their case, or that they could not have
satisfied those requirements by exercising due diligence. Accordingly, we hold that
the medical-records authorization requirements do not create unduly burdensome
conditions in which to pursue a health care liability claim, and thus do not violate
the open courts provision. See Odak, 934 S.W.2d at 871.
Conclusion
We hold that the trial court properly granted summary judgment, because the
limitations period expired before the filing of this lawsuit, and the notice and
medical-records authorization requirements, as applied in this case, do not violate
the open courts provision of the Texas Constitution. We therefore affirm the
judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Keyes, Higley, and, Bland.
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