                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-19-00026-CV


                           ROBERT SALINAS, APPELLANT

                                           V.

   METHODIST HEALTHCARE SYSTEM OF SAN ANTONIO, LTD., L.L.P., ET AL.,
                           APPELLEES

                         On Appeal from the 407th District Court
                                 Bexar County, Texas
                            Trial Court No. 2017-CI-23765

                                   August 13, 2019

                           MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

      Robert Salinas (Salinas) appeals from a summary judgment denying him recovery

against Dr. Sarah Weakley (Weakley), Methodist Healthcare System of San Antonio,

LTD., L.L.P., (Methodist), Tiffanny Marie Isaac, Wanda Le Grange, Chantel Dunk, and

Kathryn Vierzba (the nurses/techs). He sued Weakley, Methodist, and the nurses/techs

for medical malpractice because they left a sponge inside him upon completing surgery.

Each defendant moved for summary judgment, contending that the two-year limitations

period had expired. No one disputes that suit was initiated more than two years after the
alleged malpractice occurred but within the tolling period established by statute. The

dispute lies in whether Salinas complied with the applicable statute and triggered the

tolling period.    The trial court concluded that he did not and granted the summary

judgment motions. Salinas appealed. We affirm. 1

        Standard of Review and Law

        The standard of review we follow is that discussed in Exxon Mobil Corp. v.

Rincones, 520 S.W.3d 572, 579 (Tex. 2017), and Cantey Hanger, LLP v. Byrd, 467

S.W.3d 477, 481 (Tex. 2015). We refer the parties to those cases for a discussion of it.

        Next, the chose-in-action underlying Salinas’ suit is a health care liability claim.

Such     claims     have     a    two-year      limitations period. TEX.       CIV.   PRAC.      &   REM.

CODE ANN. § 74.251(a) (West 2017). A claimant, however, can toll the expiration of that

period for 75 days by complying with certain notice requirements. Id. § 74.051(c).

        Per § 74.051(c) of the Civil Practice and Remedies Code, the period is tolled 75

days when notice is “given as provided” in § 74.051(a). Id. The latter states:

                [a]ny 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.




        1Because  this appeal was transferred from the Fourth Court of Appeals, we are obligated to apply
its precedent when available in the event of a conflict between the precedents of that court and this Court.
See TEX. R. APP. P. 41.3.

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Id. § 74.051(a). Mailing both notice and the authorization form are prerequisites to tolling,

according to our Supreme Court. Jose Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d

68, 74 (Tex. 2011).

       Next, statute dictates the content of the authorization form. See TEX. CIV. PRAC. &

REM. CODE ANN. § 74.052(c) (West Supp. 2018). Though the statute specifying the

content of the authorization form was amended after Salinas underwent the surgery in

question, the amendments took immediate effect on June 9, 2017. See Act of June 11,

2003, 78th Leg., R.S., ch. 204, 2003 Tex. Gen. Laws 867, amended by Act of June 9,

2017, 85th Leg., R.S., ch. 506, § 1, 2017 Tex. Gen. Laws 1336 (eff. June 9, 2017).

Nonetheless, the changes are of little import here. Each statute required Salinas to

undertake the same particular acts which are determinative here. Those acts consisted

of identifying health care providers encompassed within the medical authorization form.

The physicians and health care providers which had (and have) to be identified are 1)

those “who have examined, evaluated, or treated [Salinas] in connection with the injuries

alleged to have been sustained in connection with the claim asserted in the

accompanying Notice of Health Care Claim,” id. § 74.052(c)(B)(1), 2) those “who have

examined, evaluated, or treated [Salinas] during a period commencing five years prior to

the incident made the basis of the accompanying Notice of Health Care Claim,” id.

§ 74.052(c)(B)(2), and 3) those excluded from the medical authorization since their

information is irrelevant. Id. § 74.052(c)(C)(1). The statutory form itself separates these

three categories of people and entities into different paragraphs.




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       Application of the Standard of Review and Law

       The summary judgment record at bar contains several affidavits executed by

Salinas’ attorney and that attorney’s assistant. The assistant attested to how she mailed

the requisite notice accompanied by the mandatory authorization form. Copies of the

notice and form purportedly mailed were attached to her affidavit.          Within the two

paragraphs of the form pertaining to the records of physicians and health care providers

who examined or treated him in connection with the injuries underlying the suit, and who

examined and treated him in general over the preceding five years appears the notation

“(Please see attached list).” Only one list was attached. Labelled “LIST OF PROVIDERS

5 YEARS PRIOR TO INCIDENT THROUGH PRESENT,” it contained the names,

addresses and phone numbers of 1) “Methodist Hospital[,] Methodist Specialty and

Transplant Hospital,” 2) “General Surgery Associates – Sarah Weakley, MD,” 3) “Christus

Physician Group – Veronica Betancur, MD,” and 4) “Christus Santa Rosa Wound Care &

Hyperbaric Center – Ricardo Aguilar, MD.” Whether these four named individuals and

entities were the health care provides who treated him in connection with the injuries he

purportedly sustained as a result of malpractice or the health care providers who simply

examined him during a period five years prior to the incident went unspecified.

       The foregoing absence of delineation is immaterial in Salinas’ view. He suggests

that “[t]here was no need for segregation in this case because the providers identified on

the list were all treaters involved in the surgeries at issue and were the only providers Mr.

Salinas saw in the preceding five years.” This argument is unavailing for several reasons.

       First, the definition of “health care provider” encompasses “any person,

partnership, professional association, corporation, facility, or institution duly licensed,



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certified, registered, or chartered by the State of Texas to provide health care, including .

. . a registered nurse . . . .” TEX. CIV. PRAC. & REM CODE. ANN. § 74.001(a)(12(A)(i).

Furthermore, the phrase “health care providers” appears in both the categories of people

who treated him for the injuries in question and those who treated him generally for the

preceding five years. Within the group of defendants he sued were two nurses (i.e., Dunk

and Vierzba) who purportedly assisted in his treatment (i.e., the surgical procedure from

which sprang his suit). As nurses, Dunk and Vierzba were health care providers too,

given the statutory definition of the term. Yet, Salinas omitted their names from his “LIST

OF PROVIDERS 5 YEARS PRIOR TO INCIDENT THROUGH PRESENT.” At the very

least, his having failed to identify at least two, if not more, health care providers who

assisted in his treatment in connection with the injuries underlying his claim meant that

the list accompanying his notice failed to comply with § 74.052(c)(B)(1).2 A claimant’s

complete failure to provide an authorization form prescribed by § 74.052 precludes tolling.

Carreras, 339 S.W.3d at 74; Davenport v. Adu-Lartey, 526 S.W.3d 544, 552 (Tex. App.—

Houston [1st Dist.] 2017, pet. denied). The same is true of providing an incomplete

authorization form or one omitting names of providers required to be included. Walthour

v. Advanced Dermatology, No. 14-17-00332-CV, 2018 Tex. App. LEXIS 2497, at *7-8

(Tex. App.—Houston [14th Dist.] Apr. 10, 2018, no pet.) (mem. op.); Davenport, 526

S.W.3d at 552-54; Johnson v. PHCC-Westwood Rehab. & Health Care Ctr., 501 S.W.3d

245, 251-52 (Tex. App.—Houston [1st Dist.] 2016, no pet.).




        2Also missing from the list were the names of two other defendants who assisted in his treatment

during the surgery. They were the defendants he called the “scrub techs” in his petition, Issac and Le
Grange. The record does not reveal whether “scrub techs” must be licensed, certified, or registered by the
State, but assuming arguendo they are, then they too would be considered health care providers who
treated him.

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       Second, and to reiterate, the legislature prescribed that the “medical authorization

required by this section shall be in the following form . . . .” TEX. CIV. PRAC. & REM. CODE

ANN. § 74.052(c) (emphasis added). It also specified elsewhere that the word “‘shall’

imposes a duty” unless the context in which the word appears “necessarily requires a

different construction.” TEX. GOV’T CODE ANN. § 311.016(2) (West 2013). We do not read

the context surrounding the word “shall” in § 74.052(c) as necessarily requiring the word

to be read as anything short of mandatory. On occasion, some jurisdictions have said

that there may be room for slight deviation from the notice directives imposed under

chapter 74 given that “substantial compliance” with the statute may trigger tolling in

certain circumstances. See, e.g., Davenport, 526 S.W.3d at 552-53. But “shall” is

certainly not permissive or subject to being read as granting a claimant the discretion to

comply, as would the word “may.” TEX. GOV’T CODE ANN. § 311.016(1) (defining “may” as

creating discretionary authority or granting permission or a power). Additionally, the form

prescribed by the legislature expressly separates health care providers into distinct

categories, as evinced by § 74.052(c)(B)(1), (2) and § 74.052(c)(C)(1).           No doubt,

segregating such providers into those categories can facilitate efficient investigation and

settlement of a health care liability claim. If nothing else, it minimizes the likelihood of a

claimant hiding pivotal witnesses since health care providers are to be identified as those

that a defendant 1) should contact (e.g., § 74.052(c)(B)(1) or those who treated the patient

in connection with the injuries), 2) may want to contact (e.g., § 74.052(c)(B)(2) or those

who have treated or examined the patient generally within the preceding five years), and

3) need not bother (e.g., § 74.052(c)(C)(1) or those who have irrelevant information).

And, after all, the purpose of affording statutory notice is to encourage negotiations and



                                              6
settlement of disputes in a timely manner, prior to suit and with a minimization of expense.

Carreras, 339 S.W.3d at 73. So, neglecting to segregate health care providers into the

aforementioned categories “materially interfere[s] with the purposes chapter 74 is

intended to accomplish.” Walthour, 2018 Tex. App. LEXIS 2497, at *8 (wherein the

claimant failed to so segregate health care providers and supplied a list merely identifying

“13 . . . ‘Myra Walthour Medical providers in the past 5 years’”).

       Just as the lumping of some health care providers into one list and omitting others

from disclosure was deemed insufficient to trigger tolling in Walthour, it was insufficient

here, as well. See id. (also concluding that the circumstances fell short of compliance

with § 74.052). Salinas did not comply with § 74.052, in toto or substantially, and his

notice did not toll the two-year limitations period.

       Having had at least one ground before it illustrating that Weakley, Methodist, and

the nurses/techs were entitled to summary judgment as a matter of law, the trial court did

not err in entering it. That summary judgment is affirmed.



                                                        Brian Quinn
                                                        Chief Justice




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