Opinion issued August 18, 2016




                                   In The
                          Court of Appeals
                                  For The
                       First District of Texas
                          ————————————

                           NO. 01-15-01106-CV
                         ——————————
          CATHERINE JOHNSON, INDIVIDUALLY AND AS
           PERSONAL REPRESENTATIVE AND HEIR OF
         THE ESTATE OF FREDDIE MAE JOHNSON, Appellant
                             V.
        PHCC-WESTWOOD REHABILITATION AND HEALTH
             CARE CENTER, LLC D/B/A WESTWOOD
                 REHABILITATION AND
      HEALTH CARE CENTER AND VIREN SHAH, M.D., Appellees


                   On Appeal from the 333rd District Court
                            Harris County, Texas
                      Trial Court Case No. 2014-00261


                               OPINION

     In this health care liability suit, the trial court granted a final summary

judgment based on the statute of limitations, impliedly holding that the
authorizations for medical records accompanying Catherine’s notice of a

health care claim were deficient and thus ineffective to toll limitations. See

TEX. CIV. PRAC. & REM. CODE ANN. § 74.051(a), (c) (West 2015) (providing

for 75-day tolling period if plaintiff sends compliant notice and medical

records authorization to health care provider).

      Catherine Johnson, individually and as the personal representative and

heir of the estate of Freddie Mae Johnson, sued PHCC–Westwood

Rehabilitation & Health Care Center and Viren Shah, M.D. for medical

negligence.   On appeal, Catherine contends that she complied with the

authorization and notice required for health care liability claims, and thus, the

trial court erred in granting summary judgment.          Because the medical

authorizations that Catherine provided do not comply with the statutory

requirements for medical authorizations, the trial court properly granted

summary judgment. We therefore affirm.

                              BACKGROUND

      Catherine’s mother, Freddie Mae Johnson, was admitted to Westwood

in 2008 after she suffered a stroke that left her unable to speak. She was in

her mid-eighties and had other serious chronic illnesses, including dementia,

a seizure disorder, hypertension, diabetes, and multiple pressure sores. Dr.

Shah was Freddie Mae’s attending physician. Freddie Mae developed a large


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decubitus ulcer during her stay at Westwood.              Medical records from

Westwood reflect that on December 7, 2011, Freddie Mae’s care was

transferred to another physician, Dr. Nguyen, and Dr. Shah was discharged

from her care.1 The next day, December 8, Freddie Mae was discharged from

Westwood and transferred to Texas Specialty Hospital.

      On January 25, 2012, Freddie Mae was admitted to Briarwood Nursing

and Rehabilitation. In addition to the treatment at Briarwood, Freddie Mae

also received treatment for the decubitus ulcer from Vohra Wound Physicians.

Freddie Mae died on November 2, 2012.

      Before Freddie Mae’s death, Catherine sent written notices of health

care liability claims to Westwood and Dr. Shah, on February 24, 2012 and

March 21, 2012, respectively.            The medical records authorization

accompanying the notices was signed by Freddie Mae’s other daughter, Alice

Sims, as the grantee of a general power of attorney for Freddie Mae. The

general power of attorney, which Freddie Mae executed on July 10, 2000,

conferred to Sims the power “including but not limited” to:


1
      Dr. Shah’s billing records initially showed that Freddie Mae saw him for an
      outpatient visit at his office on January 9, 2012, but Dr. Shah later provided
      a corrected billing record showing a reversal of charge for that visit. No
      medical records show that Dr. Shah provided Freddie Mae with care on that
      date. The record shows that Freddie Mae received care for the decubitus
      ulcer from Dr. Shah until December 7, 2011.



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      the right to sell, deed, buy, lease, mortgage, assign, rent or
      dispose of any present or future real or personal property; the
      right to execute, accept, undertake and perform any [and] all
      contracts in my name; the right to deposit, endorse, or withdraw
      funds to or from any of my bank accounts, depositories or safe
      deposit box; the right to borrow, lend, invest or reinvest funds on
      any terms; the right to initiate, defend, commence or settle legal
      actions on my behalf; the right to vote (in person or by proxy)
      any shares or beneficial interest in any entity, and the right to
      retain any accountant, attorney, or other advisor deemed
      necessary to protect my interest generally or relative to any
      foregoing unlimited power.

      The medical records authorization sent to Westwood and Dr. Shah

identified health care providers who examined, evaluated, or treated Freddie

Mae in connection with the decubitus ulcer, including the following entity and

individuals:

      Westwood Rehabilitation and Health Care Center
      8702 South Coarse Drive
      Houston, Texas 77099
      Viren Shah, M.D.
      1522 Southwest Freeway, Suite 265
      Sugar Land, Texas 77478
      Deborah _______, R.N.
      [Westwood]
      Patricia ________, R.N.
      [Westwood]

The authorization did not identify any of the health care providers who treated

Freddie Mae for the decubitus ulcer during the period between December 8,



                                          4
2011 and February 24, 2012—after Freddie Mae was discharged from

Westwood but before Johnson sent the notice of claim. These providers were:

         Dr. Cao (12/13/11);
         Briarwood Nursing and Rehabilitation (1/25/12);
         Dr. Nguyen (1/25/12);
         Dr. Yevich (2/2/12);
         Dr. Narang and Vohra Wound Physicians (12/13/11 to 1/20/12); and
         Dr. Pham (2/3/12, 2/17/12).

Johnson first identified the omitted providers in response to defendants’

interrogatories.

      The authorization identified as health care providers as those who

examined, evaluated, or treated Freddie Mae for the period beginning five

years before the incident made the basis of the claim the following entities

and individuals:

      Westwood Rehabilitation and Health Care Center
      8702 South Coarse Drive
      Houston, Texas 77099
      Viren Shah, M.D.
      15200 Southwest Freeway, Suite 265
      Sugar Land, Texas 77478
      Texas Specialty Hospital
      Case Manager Regina Johnson
      6160 South Loop East
      Houston, Texas 77087
      Advance Diagnostics
      8307 Knight Road
      Houston, Texas 77054


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      University General Hospital
      7501 Fannin Street
      Houston, Texas 77054
      Park Plaza Hospital
      1313 Hermann Drive
      Houston, Texas 77004

      The authorization did not identify the entities and individuals
who examined, evaluated or treated Freddie Mae in that five-year
period, namely:

       The facility or facilities where Freddie Mae resided before her
        admission to Westwood;
       Dr. Thakkar; and
       Triumph Wound Care.

      Johnson filed suit on January 3, 2014, 26 days after the two-year statute

of limitations based on the date of Freddie Mae’s discharge from Westwood

and 27 days after the last date that Freddie Mae was under Dr. Shah’s care.

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.251(a).

                                DISCUSSION

I.    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

                                          6
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 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 either (1) disprove at least one element of the plaintiff’s cause

of action or (2) plead and conclusively establish each essential element of an

affirmative defense to rebut the plaintiff’s cause. Khan v. GBAK Props., Inc.,

371 S.W.3d 347, 352 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (citing

Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997)).

      It is an affirmative defense to assert that a claim is barred by the statute

of limitations. TEX. R. CIV. P. 94. Accordingly, the party moving for summary


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judgment based on the statute of limitations carries the burden of establishing

as a matter of law that the limitations period had expired on the relevant

claims. Id. (citing Burns v. Thomas, 786 S.W.2d 266, 267 (Tex.1990). This

includes establishing when the causes of action accrued. Id.

II.    Proper Notice and Limitations for Health Care Liability Claims

       A health care-liability claim has a two-year limitations period. See TEX.

CIV. PRAC. & REM. CODE ANN. § 74.251(a). Plaintiffs asserting health care

liability claims must provide at least 60 days’ notice to each physician or

health care provider against whom a claim is made before filing suit. Id. §

74.051(a). Notice provided under section 74.251(a) tolls the limitations

period for 75 days. See id.; 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 that

complies with section 74.052 must accompany the notice. TEX. CIV. PRAC. &

REM. CODE ANN. § 74.051(e); Tex. W. Oaks Hosp., LP v. Williams, 371

S.W.3d 171, 189 (Tex. 2012).

III.   Compliance with Section 74.052

       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, with blanks to be filled in with information specific to the plaintiff’s


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claim. TEX. CIV. PRAC. & REM. CODE ANN. § 74.052(c) (West 2011). Tolling

occurs only when the plaintiff provides notice and the executed medical-

records release authorization form. See Tex. W. Oaks Hosp., 371 S.W.3d at

189; Jose Carreras, M.D., P.A. v Marroquin, 339 S.W.3d 68, 73 (Tex. 2011).

      The medical authorization form must identify the patient’s treating

physicians for the past five years. TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.052(c). The form also 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.” Id. § 74.052(c). The authorization form must

grant the defendant physician or health care provider authorization to receive

the plaintiff’s medical records from all of those physicians. Id. § 74.052;

Mitchell v. Methodist Hosp., 376 S.W.3d 833, 836 (Tex. App.—Houston [1st

Dist.] 2012, pet. denied). The notice and authorization form encourage pre-

suit investigation, negotiation, and settlement of health care liability claims.

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.052; Mitchell, 376 S.W.3d at

836 (citing Carreras, 339 S.W.3d at 73). The medical authorization form is

designed to allow the health care provider to both disclose and obtain

information. Mitchell, 376 S.W.3d at 838 (citing TEX. CIV. PRAC. & REM.

CODE ANN. § 74.052(c)).




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       A.      A general power of attorney is not a medical power of
               attorney.
       Johnson first contends that she substantially complied with the statutory

medical records authorization form by using the form with Sims’s signature

under her general power of attorney. Johnson argues that Sims’s signature is

effective because Freddie Mae’s medical records demonstrate that she meets

the statutory definition of “incapacitated person” under the Estates Code. See

TEX. EST. CODE ANN. § 22.016(2) (West 2014) (defining “incapacitated

person” as “an adult who, because of a physical or mental condition, is

substantially unable to provide food, clothing, or shelter for himself or herself;

care for the person’s own physical health; [or] manage the person’s own

financial affairs . . .”).

       Our inquiry into whether the medical records authorization sent to

Westwood and Dr. Shah provides a valid basis for disclosure begins with

federal law, which makes it a crime for a person to disclose, without

authorization, the individually identifiable health information of another

person. See 42 U.S.C. § 1320d–6(a)(3) (2010) (Health Insurance Portability

and Accountability Act of 1996, as amended). HIPAA regulations provide

that a person qualifies as a personal representative for purposes of obtaining

disclosure of protected health information “[i]f under applicable law a person




                                           10
has authority to act on behalf of an individual who is an adult . . . in making

decisions related to health care.” 45 C.F.R. § 164.502(g)(2) (2013).

      The Texas Health and Safety Code provides the applicable law that

HIPAA references. A person may obtain the authority to act as an “agent” on

behalf of another adult in making health care-related decisions solely by

executing a medical power of attorney.2 See TEX. HEALTH & SAFETY CODE

ANN. §§ 166.152, 166.162–.164 (West 2015). Pertinent to this case, the

statute further explains that “[a]n agent may exercise authority only if the

principal’s attending physician certifies in writing and files the certification in

the principal’s medical record that, based on the attending physician’s

reasonable medical judgment, the principal is incompetent.” Id. § 166.152(b).

      The authorization that Johnson provided does not comply with these

requirements. Neither the general power of attorney nor the authorization

form identifies Sims as having power to sign on behalf of Freddie Mae with

respect to obtaining disclosure of her medical records or as her agent for

making health-care related decisions. The power of attorney, which was

executed nearly 12 years before the medical records release authorization,


2
      Texas statute does not refer to a “general power of attorney” like the one
      Johnson provided, but under current law, a statutory durable power of
      attorney form expressly states that it “does not authorize anyone to make
      medical and other health care related decisions for you.” TEX. EST. CODE
      ANN. 752.051 (West 2015).

                                           11
does not identify Freddie Mae as an incapacitated person for purposes of

making her medical decisions. These omissions make the form of

questionable validity for a health care provider to use as basis for disclosing

medical records.

      B.     The list of health care providers is materially incomplete.

      The authorization also deviates from section 74.052’s requirements that

Johnson (1) identify and authorize disclosure of records from the other health

care providers who treated Freddie Mae for the decubitus ulcer, and (2)

identify all of her health care providers for the five years before the incident

giving rise to the claim. With regard to treatment of her decubitus ulcer, the

authorization form identifies only Westwood and Shah, but none of Freddie

Mae’s other providers since December 2011—which, for investigative

purposes, made it equivalent to no disclosure. The authorization also fails to

identify past providers who treated Freddie Mae in the past for decubitus

ulcers, a significant omission.

      Johnson contends that the medical authorization that she provided to

Westwood and Shah substantially complied with the notice requirement by

providing the form of medical authorization with the information she had

available at the time.     This contention ignores that she—and not the

defendants—could obtain that information, as demonstrated by her discovery


                                          12
responses. The trial court reasonably could have concluded that Johnson’s

failure to timely identify these providers to Westwood and Shah thwarted their

ability to retrieve a material number of Freddie Mae’s relevant medical

provider’s records, and thus interfered with the pre-suit evaluation encouraged

by the statute. See Mitchell, 376 S.W.3d at 838 (quoting MacFarlane v.

Burke, No. 01–10–00409–CV, 2011 WL 2503937, at *3 (Tex. App.—

Houston [1st Dist.] June 23, 2011, no pet.) (mem. op.).

      Rabatin v. Kidd, 281 S.W.3d 558 (Tex. App.—El Paso 2008, no pet.),

which Johnson relies on to support her contention that the omissions did not

render her authorization ineffective, is unavailing. See id. at 562. Since the

El Paso court decided that case, the Texas Supreme Court has made clear that

the plaintiff must provide both the statutory notice of claim and medical

authorization to toll the statute of limitations in a health care liability claim.

See Carreras, 339 S.W.3d at 74; see also Nicholson v. Shinn, No. 01-07-

00973-CV, 2009 WL 3152111, at *5–6 (Tex. App.—Houston [1st Dist.] Oct.

1, 2009, no pet.) (mem. op.) (holding that notice and authorization were

ineffective to toll statute because release failed to include information on

plaintiff’s physicians for previous five years and portion requiring her to

identify her treating physicians was also incomplete).




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                               CONCLUSION

       We hold that the authorization form that Johnson provided did not toll

the statute of limitations under section 74.051. See Carreras, 339 S.W.3d at

74. Because Johnson failed to give proper notice pursuant to Civil Practice

and Remedies Code sections 74.051 and 74.052 before the statute of

limitations expired and filed suit after the limitations period, the trial court

correctly held that her suit is time-barred. We therefore affirm the judgment

of the trial court.




                                               Jane Bland
                                               Justice


Panel consists of Justices Higley, Bland, and Massengale.




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