AFFIRMED and Opinion Filed August 21, 2019




                                        S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                     No. 05-18-00539-CV

                   GARY LEW MAYPOLE, SR., ET AL., Appellants
                                   V.
               ACADIAN AMBULANCE SERVICE, INC. ET AL., Appellees

                       On Appeal from the 44th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. DC-17-11335

                              MEMORANDUM OPINION
                      Before Justices Bridges, Partida-Kipness, and Carlyle
                                   Opinion by Justice Bridges
       Gary Lew Maypole, Sr., individually and as personal representative of the estate of Gary

Lew Maypole II, and Tamara Jean Maypole as next friend of H.K.M. and D.T.M. (the Maypoles)

appeal the trial court’s traditional summary judgment in favor of Acadian Ambulance Service, Inc.

and Acadian Ambulance Service of Texas, LLC (Acadian). In a single issue, the Maypoles argue

Acadian did not conclusively establish their claims were barred by the statute of limitations. We

affirm the trial court’s judgment.

       On August 30, 2017, the Maypoles filed their original petition alleging negligence,

wrongful death, and survival claims against Acadian, the Heart Hospital Baylor Plano, and Baylor

Scott & White Health. The petition alleged Gary was admitted to a monitored bed at the Texas

Regional Medical Center in Sunnyvale, Texas, on July 12, 2015, after presenting to their
emergency department for shortness of breath due to exacerbation of his heart failure. Gary’s

condition deteriorated, and his transfer was arranged to Baylor for surgery evaluation. On July 20,

2015, Acadian transported Gary to Baylor ICU 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 precluded cardiac surgery. Gary’s family subsequently

withdrew life support, and he was pronounced dead on July 23, 2015.

       On October 16, 2017, Acadian filed an answer alleging, among other things, that the

Maypoles’ claims were barred by the statute of limitations, and the Maypoles were not entitled to

a seventy-five-day tolling of limitations provided by sections 74.051 and 74.052 of the civil

practice and remedies code. On October 31, 2017, Acadian filed a traditional motion for summary

judgment asserting (1) the statute of limitations accrued on July 20, 2015; (2) on June 12, 2017,

the Maypoles sent correspondence to Acadian informing Acadian of counsel’s representation and

providing a document entitled “HIPAA AUTHORIZATION TO DISCLOSE PROTECTED

HEALTH INFORMATION”; (3) on July 11, 2017, the Maypoles again provided Acadian with a

copy of the HIPAA medical authorization; (4) the HIPAA medical authorization was materially

incomplete and deficient because it failed to comply with the requirements of section 74.052(c) of

the civil practice and remedies code; (5) on August 30, 2017, forty-one days after the statute of

limitations had run, the Maypoles filed suit against Acadian; and (6) the Maypoles’ failure to

provide a statutorily compliant medical authorization within the limitations period therefore led to

the Maypoles’ claims being time-barred.

       On February 5, 2018, the Maypoles non-suited Baylor and Scott & White, leaving Acadian

as the only defendant. On March 5, 2018, the Maypoles filed a response in which they asserted

their medical authorization was “substantially compliant” with sections 74.051 and 74.052 of the

civil practice and remedies code; the authorization did not prevent Acadian from obtaining Gary’s

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medical records; all known healthcare providers were included 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 the Maypoles’ claim that their 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 grounds that the Maypoles’ claims were barred by limitations.

This appeal followed.

       In a single issue, the Maypoles argue Acadian did not conclusively establish their claims

were barred by the statute of limitations.

       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.

       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 (1) the occurrence of the breach or

tort; (2) the last date of the relevant course of treatment; or (3) the last date of the relevant

hospitalization. Mitchell v. Methodist Hosp., 376 S.W.3d 833, 835 (Tex. App.—Houston [1st

                                                –3–
Dist.] 2012, pet. denied). There is no dispute that the Maypoles filed suit more than two years

after their cause of action accrued. The question that is dispositive of this appeal is whether the

medical authorization form attached to the Maypoles’ presuit notice was effective to toll the

limitations period.

       A claimant can obtain a seventy-five-day tolling period by complying with certain notice

requirements found in Chapter 74 of the Texas Civil Practice and Remedies Code. The two-year

limitations period is tolled for a period of seventy-five days if the claimant provides both the notice

and medical authorization form required by Chapter 74. TEX. CIV. PRAC. & REM. CODE §

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.”). The

notice requirements provide, 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). Section 74.052 prescribes the “Authorization Form

for Release of Protected Health Information,” stating:

       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.

Id. § 74.052(a). 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 seventy-five-day


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tolling period is triggered if the claimant gives notice “as provided” in Chapter 74. Id. § 74.051(c).

A medical form that does not contain the statutorily required information of section 74.052 does

not toll the statute of limitations when the missing information “interferes with the statutory design

to enhance the opportunity for presuit investigation, negotiation, and settlement.” See Mitchell,

376 S.W.3d at 837–38 (because plaintiffs’ medical authorization form “neglected to comply with

both the treating-physicians-disclosure requirement and the authorization-to-obtain-records

requirement,” presuit notice was insufficient to toll limitations).

       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 §

74.052; Myles v. St. Luke’s Episcopal Hosp., 468 S.W.3d 207, 209 (Tex. App.—Houston [14th

Dist.] 2015, pet. denied). The authorization form grants the defendant physician or health care

provider authorization to disclose the plaintiff's medical records. TEX. CIV. PRAC. & REM. CODE

§ 74.052. The notice and medical authorization form encourage presuit investigation, negotiation,

and settlement of health care liability claims. See 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.’”).

       Here, the Maypoles sent notice of their health care liability claims and the medical

authorization form on June 12, 2017. In places, the Maypoles’ form partially tracks the statutorily

prescribed text. See TEX. CIV. PRAC. & REM. CODE § 74.052(c). However, the form must 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. The form also must indicate “none” or list the name




                                                 –5–
of each physician or health care provider to whom the authorization does not apply and the

inclusive dates of examination, evaluation, or treatment to be withheld from disclosure. Id.

       As Acadian points out, the Maypoles’ form deviates from section 74.052(c) in at least two

ways: (1) it does not identify Gary’s treating physicians for the five years before “the incident

made the basis of the accompanying Notice of Health Care Claim” and (2) it does not identify the

physicians to whom the authorization does not apply. See id. The Maypoles argue that the

seventy-five-day tolling provision should nonetheless apply because their form substantially

complied with section 74.052.        The Maypoles downplay the significance of the missing

information and argue the authorization “allowed access to [Gary’s] otherwise-confidential

medical records from his treatment at Texas Regional Medical Center in Sunnyvale and The Heart

Hospital in Plano.”

       Acadian argues that, while the authorization allowed access to records of these two entities,

the authorization failed to list any providers who treated Gary in the five years preceding the

underlying claim. Citing an affidavit attached to the Maypoles’ original petition, Acadian points

out that Gary had a “past medical history of deep venous thrombosis, pulmonary embolism, factor

5 Leiden deficiency, congestive heart failure (CHF), and chronic back pain.” Acadian cites Gary’s

Baylor admission record which, under the heading “History of Present Illness,” lists “PCP - Dr.

David Carlson, Cardiologist - Dr. Mohammed Khan, Pain management – Dr. Shaw” as treating

physicians. Acadian argues the Maypoles were required to list these health care providers on the

authorization in order to comply with section 74.052.

       The importance of disclosing the plaintiff's treating physicians for the previous five years

has been discussed previously. See Mitchell, 376 S.W.3d at 838. The Mitchell court noted that

the plaintiff’s failure to include this information rendered the authorization form insufficient to toll

the limitations period. Id. The court stated that “[t]he notice requirement’s purpose of obtaining

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information is not fulfilled if [the defendant] is deprived of the opportunity to explore [the

plaintiff’s] past medical history, including these preexisting conditions, for purposes of evaluating

(and potentially settling) his claim.” Id. By excluding this information, the Maypoles’ medical

authorization form failed to substantially comply with sections 74.051 and 74.052. We agree that

the missing information in this case interfered with the statutory design to enhance presuit

investigation, negotiation, and settlement and that therefore the form was insufficient to toll the

statute of limitations. See id.

       The Maypoles point to Mock v. Presbyterian Hospital of Plano, 379 S.W.3d 391, 394 (Tex.

App.—Dallas 2012, pet. denied), a case in which the plaintiffs sent notice and provided the

statutorily prescribed authorization form, but completed one of the blanks incorrectly by entering

the name of the defendant physician’s attorney, rather than the physician. The plaintiff properly

entered the physician’s name in four similar fields. Id. at 395 n.2. A panel of this Court held that

the form was effective to trigger the tolling provision, despite the mistake. Id. at 395 (“Although

one blank was filled out incorrectly in what appears to have been an inadvertent mistake, the

medical authorization form utilized complied with the statutory requirements, satisfied the

legislative purpose, and triggered the tolling of the limitations period.”). Unlike the plaintiff in

Mock, the Maypoles completely failed to identify Gary’s treating physicians for the previous five

years and also the physicians to whom the authorization did not apply.

       Also in reliance on Mock, the Maypoles argue the statutory remedy for “(allegedly)

insufficient authorizations” is abatement, not dismissal. See id. at 394–95. The Court in Mock

did not rule on the issue of abatement and instead concluded the authorization in that case was

sufficient to toll the statute of limitations. See id. at 395. Thus, the Maypoles’ reliance on Mock

is misplaced. Further, the Texas Supreme Court has determined that the reference to abatement in

section 74.052 “does not set a deadline by which plaintiffs must abide.” Carreras, 339 S.W.3d at

                                                –7–
73. Calling such an interpretation “absurd,” the court reasoned “the abatement could continue at

the plaintiff’s leisure until sixty days after the plaintiff chooses to provide the defendant with an

authorization.” Id. The court concluded “It is not reasonable to interpret a statute which is meant

to provide speedy resolution of meritorious health care liability claims and quick dismissal of

nonmeritorious claims to allow a lengthy or indefinite delay of the resolution of a health care

liability claim.” Id. In contrast, the court clarified the circumstances in which abatement would

be proper:

       abatement has a use in situations in which the tolling provision is not at issue. If
       notice is provided without an authorization well within the statute of limitations,
       and the case could be filed sixty days later and still fall within the limitations period,
       the defendant’s statutory remedy is to halt proceedings until an authorization form
       is received. The abatement remedy fulfills that purpose.

Id. at 73–74. Thus, we conclude the proper remedy under the facts and circumstances of this case

was dismissal, not abatement. See id.

       Accordingly, the trial court properly granted summary judgment in favor of Acadian

because the limitations period expired before the Maypoles filed their lawsuit, and the medical

authorization form was not sufficient to toll this period. We overrule the Maypoles’ sole issue.

       We affirm the trial court’s judgment.




                                                     /David L. Bridges/
                                                     DAVID L. BRIDGES
                                                     JUSTICE


180539F.P05




                                                 –8–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 GARY LEW MAYPOLE, SR., ET AL.,                      On Appeal from the 44th Judicial District
 Appellants                                          Court, Dallas County, Texas
                                                     Trial Court Cause No. DC-17-11335.
 No. 05-18-00539-CV          V.                      Opinion delivered by Justice Bridges.
                                                     Justices Partida-Kipness and Carlyle
 ACADIAN AMBULANCE SERVICE,                          participating.
 INC. ET AL., Appellees

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

      It is ORDERED that appellees Acadian Ambulance Service, Inc., and Acadian
Ambulance Service of Texas, LLC recover their costs of this appeal from appellants Gary Lew
Maypole, Sr., individually and as personal representative of the estate of Gary Lew Maypole II,
and Tamara Jean Maypole as next friend of H.K.M. and D.T.M.


Judgment entered August 21, 2019.




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