                                     NUMBER 13-09-156-CV

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


JOSE CARRERAS, M.D., P.A.,                                                                      Appellant,

                                                      v.

CARLOS FRANCISCO MARROQUIN, ET AL.,                                                            Appellees.


                        On appeal from the 206th District Court
                              of Hidalgo County, Texas.


                                               OPINION

                     Before Justices Rodriguez, Garza, and Vela
                              Opinion by Justice Vela

        This is an agreed interlocutory appeal from the denial of a summary judgment in a

health care liability claim.1 The sole issue is one of statutory construction: whether the

        1
        A district court is perm itted to issue a written order for an interlocutory appeal in a civil action not
otherwise appealable if:

        (1) the parties agree that the order involves a controlling question of law as to which there is
        substantial grounds for difference of opinion;
failure of a plaintiff to include a medical authorization with its notice of a health care liability

claim to a health care provider bars the tolling of the statute of limitations permitted in

section 74.051 of the Texas Civil Practice and Remedies Code. TEX . CIV. PRAC . & REM .

CODE ANN . § 74.051 (Vernon 2005).                     We conclude that the medical authorization

requirement in section 74.052 is independent from the notice requirement set forth in

section 74.051; as such, the statute does not operate to bar tolling of limitations when a

plaintiff properly provides pre-suit notice to a health care provider without initially providing

a medical authorization. See id. § 74.052 (Vernon 2005). Accordingly, we affirm the trial

court’s denial of the summary judgment motion.

                                                I. BACKGROUND

       Appellant, Jose R. Carreras, M.D., operated on Priscilla Marroquin on December

19, 2001 to repair her broken leg. On December 17, 2003, the appellees, Marroquin’s

parents, sent a pre-suit “Notice of Health Care Liability Claim” to Dr. Carreras, alleging that

as a result of the lack of pre- and post-surgery treatment, Priscilla suffered a bilateral

pulmonary embolism and bilateral fat emboli that eventually led to her death. This notice

was not accompanied by an authorization for the release of Priscilla’s medical information.

On February 26, 2004, the Marroquins filed suit against Jose Carreras, M.D., P.A. and

Mission Hospital, Inc. Thereafter, on May 14, 2004, Dr. Carreras answered the lawsuit and

requested abatement of the case because the Marroquins failed to provide a medical

authorization. On June 2, 2004, the trial court granted Dr. Carreras’s request and abated



       (2) an im m ediate appeal from the order m ay m aterially advance the ultim ate term ination of
       the litigation; and

       (3) the parties agree to the order.

       T EX . C IV . P RAC . & R EM . C OD E A N N . § 51.014(d)(1) (Vernon 2008).

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the action until sixty days following receipt of the medical authorization, which the

Marroquins provided on September 10, 2004. See id. § 74.052. Dr. Carreras then filed

a motion for summary judgment based on the affirmative defense of limitations. The trial

court denied the motion, and on March 5, 2009, the court entered an agreed order

permitting this appeal. See TEX . CIV. PRAC . & REM . CODE ANN . § 51.014(d)(1) (Vernon

2008).

         Dr. Carreras argues that the Marroquins’ initial failure to provide a medical

authorization with their notice bars the invocation of the seventy-five day tolling provision

afforded by section 74.051(c). Id. § 74.051(c). The Marroquins did not initially provide a

medical authorization form to Dr. Carreras along with their notice of health care liability

claim, nor did they file suit within two years after the limitations period had expired. The

sole issue before us, then, is whether, by providing notice alone, without the medical

authorization form, the Marroquins are entitled to rely on the tolling provision in section

74.051(c). Id. § 74.051(c).

                         II. STANDARD OF REVIEW      AND   APPLICABLE LAW

         We review the granting of summary judgment under well-established standards of

review. See TEX . R. CIV. P. 166a(c); Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d

842, 846 (Tex. 2005).

         “A defendant moving for summary judgment on the affirmative defense of
         limitations has the burden to conclusively establish that defense, including
         the accrual date of the cause of action. If the movant establishes that the
         statute of limitations bars the action, the nonmovant must then adduce
         summary judgment proof raising a fact issue in avoidance of the statute of
         limitations.”

Diversicare, 185 S.W.3d at 846 (citations omitted).

         There is a two year statute of limitations for health care liability claims, which begins


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from the occurrence of the breach or tort or from the date the medical claim or health care

treatment that is the subject of the claim or the hospitalization for which the claim is made

is completed. TEX . CIV. PRAC . & REM . CODE ANN . § 74.251 (Vernon 2005).

       When interpreting a statute, we begin our inquiry with the language of the statutory

text. Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006). We rely on the plain

meaning of the text, unless such construction leads to absurd results. City of Rockwall v.

Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008). We assume the legislature “tries to say

what it means” and that “ordinary citizens should be able to rely on the plain language of

a statute to mean what it says.” Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996

S.W.2d 864, 866 (Tex. 1999). If, in our interpretation, we stray from the statute’s plain

language, “we risk encroaching on the Legislature’s function to decide what the law should

be.” Id. If the statute is unambiguous, we generally adopt the interpretation supported by

the plain meaning of the statute’s language. Id. at 865. We consider the whole statute,

as well as other contextual information, rather than a single section in isolation. Id. at 866.

       Section 74.051 states that:

       (a) Any person . . . asserting a health care liability claim shall give written
       notice of such claim to each physician or health care provider against whom
       such claim is being made at least 60 days before the filing of a suit . . . . The
       notice must be accompanied by the authorization 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 § 74.051(a)(c). Section 74.052(a) provides that:

       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

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       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).

       Two of our sister courts have interpreted these provisions and have ruled on the

issue that is now before this Court. See Rabatin v. Kidd, 281 S.W.3d 558, 562 (Tex.

App.–El Paso 2008, no pet.); Hill v. Russell, 247 S.W.3d 356, 360 (Tex. App.–Austin 2008,

no pet.). While both courts agreed that the purpose of the notice requirement in a health

care liability case is to encourage pre-suit negotiations and settlement and to reduce

litigation costs, they reached opposite results. In Rabatin, the El Paso Court of Appeals

held that “the statute clearly requires that the notice must be accompanied by a medical

authorization form in order to toll the limitations period.” Rabatin, 281 S.W.3d at 562. The

Rabatin Court reasoned that the previous version of the statute required only that a notice

letter be sent in order to receive the benefit of the tolling provision. Id.; see TEX . REV. CIV.

STAT . ANN . art. 4590(i) § 4.01(a), (c), repealed by Act of June 2, 2003, 78th Leg. R.S., Ch.

204, § 10.09, 2003 Tex. Gen. Laws 847, 884. The El Paso Court opined that when the

legislature amended the statute to include the medical authorization requirement, it sought

to require both the notice and medical authorization to be filed in order to trigger the tolling

provision.

       The court in Hill v. Russell, however, concluded otherwise. 247 S.W.3d at 360. In

Hill, the Austin Court of Appeals held that a plaintiff’s failure to include the required, but

separate, medical authorization form upon providing notice to a defendant health care

provider does not bar the tolling provisions afforded in section 74.051, reasoning that, in

enacting sections 74.051 and 74.052, the Legislature unambigously referred to the

required “notice,” which triggers tolling, as separate from the medical authorization form:

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       Indeed, in section 74.052(a), the legislature provided that failure to include
       the authorization “along with the notice” would result in a sixty-day abatement
       of the proceedings against the health care provider “receiving the notice”
       until the authorization was received by the provider. . . The legislature did
       not state that the authorization was a part of the notice document or that
       tolling was not triggered in the absence of the authorization. Instead, it
       treated notice as a separate and distinct document from the authorization
       form, which should be included in the notice. . . .It is the provision of “notice,”
       not the authorization form that triggers tolling under Section 74.051(a).

Id. at 359. (citations omitted).

       In reaching its conclusion, the Hill Court explained that if the Legislature intended

the interpretation proposed by the defendant—that the tolling provision is barred absent

a medical authorization—it easily could have written that intention into the statute. Id. The

court refused to read such language into the statute, because it would require the Court

to ignore the Legislature’s use of notice in the statute as distinct from the authorization

form. Id. at 360. The Hill Court also took note of the separate remedy provided by the

statute to a health care provider when a plaintiff does not provide a medical authorization:

abatement until sixty days after receipt of the authorization form.

       We agree with the reasoning in Hill. The plain language of the statute makes the

notice requirement independent from the medical authorization requirement. In drafting

this legislation, the Legislature crafted a different remedy for the failure to comply with each

requirement. For example, section 74.051(c) provides “that 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 notice.” Id. This provision benefits the plaintiff who complies with

the notice requirement because it tolls limitations for 75 days. In 2003, the Legislature

enacted section 74.052 of the civil practice and remedies code as part of its effort to

decrease the cost of medical care and increase its availability, in part, by decreasing the

costs of health care liability claims. In re Collins, No.07-0737, 2009 WL 1567175, at *4

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(Tex. June 5, 2009); see Act of June 2, 2003, 78th Leg., R. S., ch. 204, § 10.11(b), 2003

Tex. Gen. Laws 847, 884-85.         By requiring the disclosure of relevant health care

information, both verbal and written, the statute furthers full, efficient, and cost effective

discovery. Id. at *4. Requiring a potential claimant to authorize the disclosure of otherwise

privileged information sixty days before suit is filed provides an opportunity for health care

providers to investigate claims and possibly settle those with merit at an early stage. Id.

       Nothing in the statute suggests that the Legislature, by enacting section 74.502, was

attempting to add an additional step or hurdle with respect to the notice provision. It is a

separate section of the code enacted for a specific purpose. We conclude that the

Marroquins are not barred from taking advantage of the tolling provision of section 74.051

merely because they failed to include a medical authorization form with their notice. We

overrule appellant’s sole issue.

                                      III. CONCLUSION

       We affirm the order of the trial court denying appellant’s motion for summary

judgment.




                                                     ROSE VELA
                                                     Justice


Opinion delivered and filed
this 25th day of August, 2009.




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