Opinion issued August 6, 2013




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                            ————————————
                               NO. 01-13-00051-CV
                            ———————————
 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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