Affirmed and Opinion filed June 2, 2015.




                                       In The

                    Fourteenth Court of Appeals

                                 NO. 14-13-01148-CV

                           FRED MYLES, Appellant
                                         V.
               ST. LUKE’S EPISCOPAL HOSPITAL, Appellee

                   On Appeal from the 113th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2012-36049

                                   OPINION


      Appellant Fred Myles sued appellee St. Luke’s Episcopal Hospital for
injuries he sustained while admitted there. The trial court granted summary
judgment in favor of St. Luke’s, ruling that Myles’s claim was barred by the two-
year statute of limitations and his presuit notice was ineffective to toll the
limitations period. We affirm.
                                   BACKGROUND

      On April 7, 2010, Myles was admitted to St. Luke’s Episcopal Hospital (the
Hospital) and diagnosed with severe cervical stenosis and cervical myelopathy.
Myles was discharged from the Hospital on April 20, 2010 and transferred to the
Institute for Rehabilitation and Research. On April 3, 2012, Myles sent the
Hospital a notice of a health care liability claim, pursuant to section 74.051 of the
Texas Civil Practice and Remedies Code, along with the statutorily required
medical authorization form.

      Myles sued the Hospital on June 21, 2012, more than two years after the
date he was discharged from the Hospital. The Hospital filed a traditional motion
for summary judgment, alleging that Myles’s lawsuit was barred by the two-year
statute of limitations because his presuit notice was insufficient to toll the
limitations. The trial court granted the Hospital’s motion for summary judgment on
September 18, 2013.

                              STANDARD OF REVIEW

      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.
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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.

                             ANALYSIS OF MYLES’S ISSUE

      In a single issue, Myles contends that the trial court erred by granting
summary judgment because his presuit notice was sufficient to toll the statute of
limitations for his claim.

      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 Dist.] 2012, pet. denied).
There is no dispute that Myles filed suit more than two years after his cause of
action accrued. The question that is dispositive of this appeal is whether the
medical authorization form attached to Myles’s 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:


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      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 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 (holding that 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); Nicholson v.
Shinn, No. 01-07-00973-CV, 2009 WL 3152111, at *6 (Tex. App.—Houston [1st
Dist.] Oct. 1, 2009, no pet.) (mem. op.) (holding that because plaintiff’s notice

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“failed to substantially comply with sections 74.051 and 74.052,” 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; Brannan v. Toland, No. 01-13-00051-CV, 2013 WL
4004472, at *2 (Tex. App.—Houston [1st Dist.] Aug. 6, 2013, pet. denied) (mem.
op.). The authorization form grants the defendant physician or health care provider
authorization to disclose the plaintiff’s medical records. Id. 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, Myles sent notice of his health care liability claim and the medical
authorization form on April 3, 2012. The beginning part of Myles’s form tracks the
statutorily prescribed text. See Tex. Civ. Prac. & Rem. Code § 74.052(c) (“I,
_______ (name of patient or authorized representative), hereby authorize _______
(name of physician or other health care provider to whom the notice of health care
claim is directed) to obtain and disclose (within the parameters set out below) the
protected health information described below for the following specific purposes
. . . .”). 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 of each
physician or health care provider to whom the authorization does not apply and the

                                           5
inclusive dates of examination, evaluation, or treatment to be withheld from
disclosure. Id.

      As the Hospital points out, Myles’s form deviates from section 74.052(c) in
at least two ways: (1) it does not identify Myles’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.; see also Nicholson, 2009 WL 3152111, at *5. Myles argues
that the seventy-five-day tolling provision should nonetheless apply because his
form substantially complied with section 74.052. Myles contends that the omission
is immaterial because he was admitted at the Hospital so “there was no doubt as to
who the health care providers were.”

      The importance of disclosing the plaintiff’s treating physicians for the
previous five years has been discussed in several cases. See Mitchell, 376 S.W.3d
at 838; Nicholson, 2009 WL 3152111, at *6. In Nicholson, the court stated that the
plaintiff’s “failure to list her treating physicians for the past five years essentially
rendered [her] authorizations meaningless because such an omission discouraged
defendants from undertaking an investigation to evaluate [her] claim.” 2009 WL
3152111, at *6. The court concluded that the plaintiff’s form did not comport with
the Legislature’s stated intent of encouraging presuit negotiations and avoiding
unnecessary litigation. Id. Similarly, the Mitchell court noted that the plaintiff’s
failure to include this information rendered the authorization form insufficient to
toll the limitations period. 376 S.W.3d at 838. The court stated that “[t]he notice
requirement’s purpose of obtaining 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, Myles’s medical

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authorization form failed to substantially comply with sections 74.051 and 74.052.1
We agree with our sister court 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.

       In support of his contention, Myles points to Mock v. Presbyterian Hospital
of Plano, 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.
379 S.W.3d 391, 394 (Tex. App.—Dallas 2012, pet. denied). The plaintiff properly
entered the physician’s name in four similar fields. Id. at 395 n.2. The 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, Myles completely
failed to identify his treating physicians for the previous five years and also the
physicians to whom the authorization did not apply. Thus, Myles’s reliance on
Mock is misplaced.

       1
          In Rabatin v. Kidd, a case that was decided before Carreras, the court held that an
improperly filled-out form was sufficient because the physician was able to obtain the records
and investigate the claim, despite the omissions. 281 S.W.3d 558, 562 (Tex. App.—El Paso
2008, no pet.); see Cantu v. Mission Reg’l Med. Ctr., No. 13-12-00568-CV, 2014 WL 1879292,
at *4 (Tex. App.—Corpus Christi May 8, 2014, no pet.) (mem. op.) (noting that “Rabatin was
decided before the Texas Supreme Court clarified in Carreras the requirements that a plaintiff
must meet in order for limitations to be tolled in a health-care liability claim”); see also
Carreras, 339 S.W.3d at 74 (holding that a plaintiff must provide both the notice and medical
authorization form to toll the statute of limitations). In contrast, Myles’s form did not enable the
Hospital to obtain such information and properly evaluate his claim.


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      Accordingly, the trial court properly granted summary judgment in favor of
the Hospital because the limitations period expired before Myles filed his lawsuit
and the medical authorization form was not sufficient to toll this period. We
overrule Myles’s sole issue.

                                  CONCLUSION

      We overrule appellant’s issue and affirm the trial court’s grant of summary
judgment.




                                      /s/       Ken Wise
                                                Justice



Panel consists of Justices Christopher, Brown, and Wise.




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