                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-15-00239-CV

ADAM M. BOROWSKI, M.D., BRIAN D. BULL, M.D.,
AND HILLCREST FAMILY HEALTH CENTER,
                                       Appellants
v.

KAREN AYERS, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF
DARYL LYNN AYERS, DECEASED, AND ETHAN AYERS,
                                    Appellees



                           From the 414th District Court
                             McLennan County, Texas
                            Trial Court No. 2012-3325-5


                                     OPINION


      On September 4, 2012, Appellees Karen Ayers, individually and as representative

of the estate of Daryl Lynn Ayers, deceased, and Ethan Ayers filed a health care liability

suit against Appellants Adam M. Borowski, M.D., Brian Bull, M.D., Hillcrest Family

Health Center, and several other defendants. The Ayerses allege that Daryl died because

Dr. Borowski, Dr. Bull, and other defendants failed to recognize and treat an aortic
dissection between July 24 and July 26, 2010.                The Ayerses assert that Hillcrest is

vicariously liable for Dr. Bull’s alleged negligence.

        Dr. Borowski filed a traditional motion for summary judgment, contending that

the Ayerses’ claims are barred by the statute of limitations. To support the motion, Dr.

Borowski included as summary-judgment evidence his own affidavit and the affidavit of

Nathan Forrest, D.O., one of the other defendants at the time.1 Dr. Forrest stated in his

affidavit that shortly after June 7, 2012, he received a letter entitled “Notice of Claim,”

advising that a health care liability claim may be asserted for negligence in the medical

care provided to Daryl Ayers on or about July 24, 2010. The Notice of Claim letter, a copy

of which was attached to Dr. Forrest’s affidavit, was also addressed to Dr. Bull,

Providence Health Center c/o its registered agent Mr. Kent Keahey, and Dennis M. Plante,

M.D. Dr. Forrest also stated in his affidavit that a document entitled “Authorization Form

for Release of Protected Health Information” accompanied the Notice of Claim letter. The

authorization form, a copy of which was also attached to Dr. Forrest’s affidavit, stated in

relevant part:

        B.      The health information to be obtained, used, or disclosed extends to
        and includes the verbal as well as the written and is specifically described
        as follows:

                 ....

                 2.     The health information in the custody of the following

1The trial court subsequently signed an order granting the Ayerses’ notice of nonsuit without prejudice of
claims against Dr. Forrest.
Borowski v. Ayers                                                                                  Page 2
        physicians or health care providers who have examined, evaluated, or
        treated DARYL LYNN AYERS during a period commencing five years
        prior to the incident made the basis of the accompanying Notice of Health
        Care Claim.

                ALL   HEATH  [sic] CARE    PROVIDERS                               PROVIDING
                CARE/TREATMENT TO DARYL LYNN AYERS.

Dr. Borowski stated in his affidavit that he did not receive a Notice of Claim letter from

the Ayerses or their attorney before suit was filed.

        Based on this summary-judgment evidence, Dr. Borowski made the following

argument: Because the authorization form did not list the name or current address of any

physicians or health care providers who had treated Daryl during the five years before

the alleged incident, it was “essentially rendered meaningless” and failed to comply with

the requirements of section 74.052.2 See TEX. CIV. PRAC. & REM. CODE ANN. § 74.052 (West

Supp. 2016). Because the authorization form failed to comply with section 74.052, the

Ayerses did not provide the proper statutory pre-suit notice to any of the defendants as

required by section 74.051. See id. § 74.051 (West 2011). The Ayerses were therefore not

entitled to the seventy-five-day tolling benefit of pre-suit notice, and the Ayerses’ claims,

which were not filed until after the two-year limitations period had expired, are thus

barred by the statute of limitations. See id. § 74.251(a) (West 2011).

        Dr. Bull and Hillcrest subsequently filed a traditional motion for summary




2All references in this opinion to statutory chapters, sections, and subsections are references to chapters,
sections, and subsections in the Texas Civil Practice and Remedies Code, unless otherwise indicated.
Borowski v. Ayers                                                                                    Page 3
judgment, asserting substantially the same argument. To support their motion, Dr. Bull

and Hillcrest included as summary-judgment evidence the Ayerses’ original and first

amended petitions and Dr. Bull’s own affidavit. Dr. Bull stated in his affidavit that, after

June 7, 2012, he received from the Ayerses’ counsel the “Notice of Claim” letter and

“Authorization Form for Release of Protected Health Information,” copies of which were

attached to his affidavit. Dr. Bull also stated that these were the first and only documents

purporting to be a Notice of Claim involving his care of Daryl that he received from the

Ayerses’ counsel or any other attorney.

       The trial court generally denied Appellants’ motions for summary judgment. Dr.

Borowski filed a motion to amend the order denying summary judgment and for

interlocutory appeal.    The trial court signed an amended order, again denying

Appellants’ motions for summary judgment but permitting an appeal from the

interlocutory order. We initially granted Appellants’ joint petition for permission to

appeal the amended order but then dismissed the appeal for want of jurisdiction.

Borowski v. Ayers, 432 S.W.3d 344, 346, 348 (Tex. App.—Waco 2013, no pet.).             We

concluded that the trial court did not substantively rule on the controlling legal issue

presented in the appeal and that the interlocutory order did not therefore involve a

controlling question of law, a requirement of subsection 51.014(d) for the trial court to

permit an appeal from an order that is not otherwise appealable. Id. at 347; see TEX. CIV.

PRAC. & REM. CODE ANN. § 51.014(d) (West Supp. 2016).


Borowski v. Ayers                                                                     Page 4
       Dr. Borowski then filed in the trial court a motion for rehearing of his motion for

summary judgment and, in the alternative, motion to clarify the summary judgment

order. The trial court subsequently signed a second amended order again denying

Appellants’ motions for summary judgment but specifying that the trial court’s “sole

basis” for its denial of the motions for summary judgment was:

       4.      Plaintiffs’ “Authorization Form for Release of Protected Health
               Information” meets the legal requirements of Section 74.052 of the
               Texas Civil Practice & Remedies Code for the sole reason that: Plaintiffs’
               Authorization tracked the statutory text of the statute, which, when
               coupled with their inclusion of the statement in Section B(2) of the
               Authorization form, “ALL HEALTH CARE PROVIDERS
               PROVIDING CARE/TREATMENT TO DARYL LYNN AYERS,”
               constituted substantial compliance with Section 74.05(c) [sic] of the
               Texas Civil Practice & Remedies Code.              Utilization of that
               Authorization, combined with Plaintiffs’ compliance with the legal
               requirement of Sections 74.051 and 74.052 of the Texas Civil Practice
               & Remedies Code to provide a notice of health care claim, utilizing the
               above described Authorization form, at least 60 days before the filing
               of Plaintiffs’ lawsuit, therefore constituted substantial compliance
               with the notice requirements of the statute.

       5.      Because Plaintiffs substantially complied with the requirements to
               provide statutory notice of claim, as set forth in Section 74.051(a) of
               the Texas Civil Practice & Remedies Code, the applicable statute of
               limitations in Section 74.251(a) of the Texas Civil Practice & Remedies
               Code was tolled by operation of Section 74.051(c) of the Texas Civil
               Practice & Remedies Code, such that Plaintiffs timely filed their lawsuit
               on September 4, 2012.

The trial court also again permitted an appeal from the interlocutory order.

       We granted Appellants’ petitions for permission to appeal this second amended




Borowski v. Ayers                                                                           Page 5
order denying their motions for summary judgment. In their sole issue,3 Appellants

contend that the Ayerses are not entitled to the benefit of subsection 74.051(c)’s tolling

provision because a medical authorization like the one provided by the Ayerses, which

generally tracks the statutory text of subsection 74.052(c) but fails to list the name and

current address of any health care provider who examined, evaluated, or treated the

patient during the five years before the incident that is the basis of the notice of health

care claim, does not comply or substantially comply with subsection 74.052(c)’s

requirements.

        We review de novo a trial court’s grant or denial of a traditional motion for

summary judgment. See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 n.7 (Tex. 2005).

In reviewing a traditional summary judgment, we must consider whether reasonable and

fair-minded jurors could differ in their conclusions in light of all of the evidence

presented. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). The

movant carries the burden of establishing that no material fact issue exists and that it is

entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); M.D. Anderson Hosp. &

Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). The nonmovant has no burden to

respond to a summary-judgment motion unless the movant conclusively establishes its




3Dr. Borowski filed an appellant’s brief, and Dr. Bull and Hillcrest filed a separate joint appellants’ brief,
but Dr. Borowski’s sole issue in his brief and Dr. Bull’s and Hillcrest’s sole issue in their brief are essentially
the same. In fact, Appellants together filed one reply brief to the Ayerses’ appellees’ brief. Therefore, we
will address Dr. Borowski’s sole issue and Dr. Bull’s and Hillcrest’s sole issue together as one issue.
Borowski v. Ayers                                                                                          Page 6
cause of action or defense. M.D. Anderson Hosp. & Tumor Inst., 28 S.W.3d at 23. Once the

movant produces sufficient evidence conclusively establishing its right to summary

judgment, the burden shifts to the nonmovant to present evidence sufficient to raise a fact

issue. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). In reviewing a

traditional summary judgment, we must consider all the evidence in the light most

favorable to the nonmovant, indulging every reasonable inference in favor of the

nonmovant and resolving any doubts against the motion. See Goodyear Tire & Rubber Co.,

236 S.W.3d at 756.

           A health care liability claim has a two-year limitations period. TEX. CIV. PRAC. &

REM. CODE ANN. § 74.251(a).4 A claimant, however, can obtain a seventy-five-day tolling

period by complying with certain notice requirements. Id. § 74.051(c).5 There is no

dispute that the Ayerses filed suit more than two years after their cause of action accrued

but that their suit was timely filed if they were entitled to the seventy-five-day tolling

period. The issue then is whether the Ayerses were entitled to the tolling period.




4   Section 74.251(a) states in relevant part:

           Notwithstanding any other law and subject to Subsection (b), no health care liability claim
           may be commenced unless the action is filed within two years from the occurrence of the
           breach or tort or from the date the medical or health care treatment that is the subject of
           the claim or the hospitalization for which the claim is made is completed.

Id.

5 Section 74.051(c) states: “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.” Id.
Borowski v. Ayers                                                                                        Page 7
       Subsection 74.051(c) states that the two-year limitations period is tolled for

seventy-five days when notice is “given as provided” in chapter 74. Id. Subsection

74.051(a) provides the following requirements for giving notice:

       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.

Id. § 74.051(a). A plaintiff must therefore provide both the statutorily required notice of

health care liability claim and the statutorily required authorization form for notice to be

“given as provided” by chapter 74 and for the statute of limitations to thus be tolled.

Carreras v. Marroquin, 339 S.W.3d 68, 74 (Tex. 2011).

       Section 74.052 provides the requirements for the authorization form. See TEX. CIV.

PRAC. & REM. CODE ANN. § 74.052. Section 74.052 states in relevant part:

       (a) 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.

       ....

       (c) The medical authorization required by this section shall be in the
       following form . . . .

        AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH
                          INFORMATION
Borowski v. Ayers                                                                      Page 8
        ....

        B. The health information to be obtained, used, or disclosed extends to and
        includes the verbal as well as the written and is specifically described as
        follows:

            ....

            2. The health information in the custody of the following physicians or
            health care providers who have examined, evaluated, or treated ______
            (patient) during a period commencing five years prior to the incident
            made the basis of the accompanying Notice of Health Care Claim. (Here
            list the name and current address of such physicians or health care
            providers, if applicable.)

Id. § 74.052(a), (c).

        “When construing a statute, we begin with its language.” State v. Shumake, 199

S.W.3d 279, 284 (Tex. 2006). “Our primary objective is to determine the Legislature’s

intent.” Id. When possible, we discern the legislative intent from the plain meaning of

the words chosen. Id. “If the statute is clear and unambiguous, we must apply its words

according to their common meaning without resort to rules of construction or extrinsic

aids.” Id. We may also determine legislative intent by considering the objective of the

law, the law’s history, and the consequences of a particular construction. Id.; see TEX.

GOV’T CODE ANN. § 311.023(1), (3), (5) (West 2013).

        Subsection 74.051(a) specifies that notice “must be accompanied by” the

authorization form “as required under Section 74.052.” TEX. CIV. PRAC. & REM. CODE

ANN. § 74.051(a). Section 74.052 specifies that notice “must be accompanied by” an


Borowski v. Ayers                                                                     Page 9
authorization “in the form specified by this section.” Id. § 74.052(a). Section 74.052

further specifies that the authorization “shall” be in the “following form.” Id. § 74.052(c).

And the “following form” includes:

       B. The health information to be obtained, used, or disclosed extends to and
       includes the verbal as well as the written and is specifically described as
       follows:

           ....

           2. The health information in the custody of the following physicians or
           health care providers who have examined, evaluated, or treated ______
           (patient) during a period commencing five years prior to the incident
           made the basis of the accompanying Notice of Health Care Claim. (Here
           list the name and current address of such physicians or health care providers, if
           applicable.)

Id. (emphasis added).

       When used in a statute, the term “must” creates or recognizes a condition

precedent and the term “shall” imposes a duty, unless the context in which the term

appears necessarily requires a different construction or unless a different construction is

expressly provided by statute. TEX. GOV’T CODE ANN. § 311.016(2), (3) (West 2013). Both

the terms “must” and “shall” are therefore generally recognized as mandatory, creating

a duty or obligation. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001). For

instance, in Carreras, the supreme court was presented with the issue of “whether notice

provided without an authorization form is considered to be given ‘as provided’ in

Chapter 74 and effective to toll the statute of limitations, or whether notice given without

an authorization form is insufficient to toll limitations.” Carreras, 339 S.W.3d at 71. The
Borowski v. Ayers                                                                              Page 10
Carreras court pointed out that both sections 74.051(a) and 74.052(a) specify that notice

“must be accompanied by” an authorization form. Id. at 72. The court stated that “must

accompany” is a directive that creates a mandatory condition precedent. Id. The court

therefore held, “If the authorization does not accompany the notice, then the benefit of

the notice—tolling—may not be utilized.” Id. The supreme court, however, has held

language that appears to impose a mandatory duty to be only directory when that

interpretation is most consistent with the Legislature’s intent. Id. at 493-94 (citing as

examples Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618,

628-29 (Tex. 1996); Lewis v. Jacksonville Bldg. & Loan Ass’n, 540 S.W.2d 307, 310 (Tex. 1976);

and Thomas v. Groebl, 147 Tex. 70, 212 S.W.2d 625, 630-31 (1948)).

       The Ayerses contend that such an interpretation is appropriate here. They argue

that extending Carreras and interpreting sections 74.051 and 74.052 such that notice is not

“given as provided” in chapter 74 if there is any mistake in the authorization form,

regardless of its negligibility, would lead to absurd results and would be inconsistent

with the Legislature’s intent. The Ayerses assert that they were therefore entitled to the

tolling period because they substantially complied with sections 74.051 and 74.052.

       “Substantial compliance” means that one has performed the “essential

requirements” of a statute. Harris County Appraisal Dist. v. Krupp Realty Ltd. P’ship, 787

S.W.2d 513, 515 (Tex. App.—Houston [1st Dist.] 1990, no writ). If deviations from the

performance required by statute do not seriously hinder the Legislature’s purpose in


Borowski v. Ayers                                                                      Page 11
imposing the requirement, then there has been substantial compliance. Id. The Ayerses

argue that their authorization did not seriously hinder the Legislature’s purpose in

imposing the notice requirement because it (1) tracked the language of section 74.052

verbatim, (2) permitted disclosure of Daryl’s medical records to Appellants, and (3)

permitted Appellants to obtain records from all of Daryl’s other health care providers.

        The Ayerses rely on Mock v. Presbyterian Hosp. of Plano, 379 S.W.3d 391 (Tex.

App.—Dallas 2012, pet. denied), and Rabatin v. Kidd, 281 S.W.3d 558 (Tex. App.—El Paso

2008, no pet.),6 to support their argument. In Mock, the plaintiffs gave the defendants

notice of their health care liability claim and the authorization form prescribed by section

74.052; however, the plaintiffs completed one of the blanks in the authorization form

incorrectly. Mock, 379 S.W.3d at 392, 394. The authorization form prescribed by section

74.052 begins:

        A. 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. . . .

TEX. CIV. PRAC. & REM. CODE ANN. § 74.052(c); Mock, 379 S.W.3d at 394. Instead of putting

the defendants’ names in the second blank, the plaintiffs put the name of their own

attorney. Mock, 379 S.W.3d at 394.



6This is one of three essentially identical opinions involving all the same issues. See Rabatin v. Chavez, 281
S.W.3d 567 (Tex. App.—El Paso 2008, no pet.); Rabatin v. Vazquez, 281 S.W.3d 563 (Tex. App.—El Paso 2008,
no pet.).
Borowski v. Ayers                                                                                    Page 12
       The Mock plaintiffs, however, properly completed blanks requiring the same

information in two other paragraphs in the authorization form. Id. at 395 n.2. The

plaintiffs also filed summary-judgment evidence indicating that the defendants received

some medical records and an additional release upon request after the plaintiffs sent their

pre-suit notice and authorization form. Id. at 392 n.1. The evidence indicated that the

defendants received the patient’s medical records and the additional release within the

seventy-five-day tolling period and before the plaintiffs filed suit.        Id.   Also, the

defendants did not offer any evidence that they ever requested medical records that the

plaintiffs refused to furnish or that the error in the plaintiffs’ authorization form

hampered their ability to investigate the claims in any respect. Id.

       The plaintiffs in Mock argued that their claims were not time-barred because they

successfully triggered the seventy-five-day tolling period. Id. at 394. The Dallas Court of

Appeals agreed. Id. at 395. The court first distinguished Nicholson and Mitchell, discussed

below, stating that the authorization form in this case tracked the statutory form

completely and that the plaintiffs filled in all the blanks, albeit one of the blanks

incorrectly. Id. The court then stated:

       We conclude appellants’ medical authorization form correctly tracked the
       statutorily prescribed text. 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.

Id. at 395. The court further explained:
Borowski v. Ayers                                                                        Page 13
       When a claimant provides the correct form with one blank filled out
       incorrectly, the claimant has demonstrated his intention to comply with the
       statute, and the error can be fixed quite easily. Any injury to the potential
       defendants from the delay is removed by the legislature’s provision of an
       abatement of proceedings lasting until 60 days after a proper authorization
       is received. The abatement provides the opportunity for investigation and
       settlement that is potentially lacking when a claimant furnishes a medical
       authorization form with one blank incorrectly completed.

Id. at 395 n.3 (citations omitted).

       In Rabatin v. Kidd, the plaintiffs sent a notice letter with an authorization form to

one of the defendants, but the authorization form excluded the records of the doctors

who had treated the patient within the five-year period before the treatment that was the

basis of the claim and did not give the dates of treatment. 281 S.W.3d at 560. The plaintiffs

subsequently sent notice letters with authorization forms to all of the defendants, but the

authorization forms again excluded the records of the doctors who had treated the patient

within the five years of the treatment that was the basis of the claim, did not give the

dates of treatment, and did not provide who could access the records. Id. Counsel for

one of the defendants was nevertheless able to use the subsequently sent authorization

form to obtain the patient’s records from the hospital where she had been admitted. Id.

       The Rabatin plaintiffs argued that the foregoing was sufficient to toll the statute of

limitations. Id. at 561. The El Paso Court of Appeals agreed. Id. at 562. The court stated

in this pre-Carreras case that section 74.051 requires that the notice be accompanied by an

authorization form to toll the limitations period. Id. (citing TEX. CIV. PRAC. & REM. CODE

ANN. § 74.051(a), (c)). The court noted that that did happen here. Id. The court then
Borowski v. Ayers                                                                      Page 14
stated, “Tolling the statute of limitations when a notice letter and medical authorization

form, albeit a[n] improperly filled out form, gives fair warning of a claim and an

opportunity to abate the proceedings for negotiations and evaluation of the claim, which

carries out the Legislature’s intent in enacting the statute.” Id. The court thus held that

the initial notice letter sent with the authorization form to one of the defendants was

sufficient to toll the statute of limitations as to all of the defendants through constructive

notice while the subsequent notice letters sent with authorization forms provided actual

notice to all of the defendants. Id.

       On the other hand, Appellants contend that, because the Ayerses failed to list any

of the names and addresses of Daryl’s treating physicians or health care providers during

the five years before the incident made the basis of this suit, the authorization was

essentially “meaningless.” Appellants assert that, without a claimant providing the

identity of a patient’s treating physicians or health care providers for the five years before

the incident made the basis of the notice of health care claim, the defendant does not

know from whom or from where to obtain the protected health information. Appellants

claim that, absent the information, the defendant is therefore deprived of the opportunity

to explore the patient’s past medical history for purposes of evaluating (and potentially

settling) the claim and that the authorization form does not therefore substantially

comply with sections 74.051 and 74.052.

       Appellants rely on several cases from two other sister courts to support their


Borowski v. Ayers                                                                      Page 15
argument. In Nicholson v. Shinn, No. 01-07-00973-CV, 2009 WL 3152111 (Tex. App.—

Houston [1st Dist.] Oct. 1, 2009, no pet.) (mem. op.), the plaintiff sent the defendant a

notice letter, but it was not accompanied by an authorization form. Id. at *4. The plaintiff

subsequently sent the defendant a “medical authorization release form” but neglected to

include information on the patient’s physicians for the previous five years. Id. at *4-5.

The plaintiff then served the defendant’s insurance carrier with the authorization form

prescribed by section 74.052, but the form was “similarly lacking.” Id. “There, [the

plaintiff] also neglected to complete the section identifying her treating physicians or the

section authorizing the physician or other health care provider to obtain and disclose her

health care information.” Id. at *5.

       The Nicholson plaintiff argued that she substantially complied with the statute and

that that was sufficient to toll the statute of limitations, but the First Court of Appeals

disagreed. Id. at *5-6. The court first concluded in this pre-Carreras case that the initial

notice letter was “clearly defective because it violate[d] a mandatory provision,” i.e.,

section 74.051’s requirement that notice “must” be accompanied by the section 74.052

authorization form. Id. at *5. The court then concluded that the plaintiff also failed to

substantially comply with sections 74.051 and 74.052 with her two authorization forms

because she overlooked that the required authorization must include a form authorizing

the physician or other health care provider “to obtain and disclose … the protected health

information” and a form for the patient to identify her treating physicians for the past


Borowski v. Ayers                                                                    Page 16
five years. Id. at *5-6. The court stated that the plaintiff’s two authorization forms

       did not comport with the Legislature’s stated intent of encouraging pre-suit
       negotiations and avoiding unnecessary litigation. Specifically, [the
       plaintiff’s] failure to list her treating physicians for the past five years
       essentially rendered [the plaintiff’s] authorizations meaningless because
       such an omission discouraged defendants from undertaking an
       investigation to evaluate [the plaintiff’s] claims.

Id. at *6. The court further noted that the plaintiff’s serving of the second authorization

form on only the defendant’s insurance provider did not satisfy the plain language of

subsection 74.052(a)’s notice requirement. Id.

       In Mitchell v. Methodist Hosp., 376 S.W.3d 833 (Tex. App.—Houston [1st Dist.] 2012,

pet. denied), the plaintiffs provided the defendants with notice of their health care

liability claims, but, instead of providing the authorization form prescribed by section

74.052, the notice was accompanied by an authorization form compliant with the federal

Health Insurance Portability and Accountability Act (HIPAA). Id. at 834. The HIPAA

form deviated from the subsection 74.052(c) form in at least two ways: (1) it did not

specifically identify the defendants as entities authorized to obtain protected health

information and (2) it did not identify the patient’s treating physicians for the five years

before “the incident made the basis of the accompanying Notice of Health Care Claim.”

Id. at 837 (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 74.052(c)).

       The Mitchell plaintiffs argued that substantial compliance with the notice

requirement was sufficient to toll limitations and that the HIPAA form substantially

complied with section 74.052 because it granted all of the patient’s health care providers
Borowski v. Ayers                                                                     Page 17
“carte blanche” to disclose his protected health information. Id. The plaintiffs also

asserted that their substantial-compliance argument was buttressed by the defendants’

use of the form to produce their own medical records without objection for more than

three years. Id. Citing Nicholson, however, the First Court of Appeals concluded that it

had already rejected the plaintiffs’ argument. Id. The court stated, “Like the Nicholson

claimant, the [plaintiffs] neglected to comply with both the treating-physicians-disclosure

requirement and the authorization-to-obtain-records requirement; therefore, their

medical authorization form does not comport with the Legislature’s stated intent of

encouraging presuit investigation, negotiation, and settlement.” Id. at 838.

       The First Court of Appeals was unpersuaded by the fact that the defendants were

able to provide the plaintiffs with copies of the protected health information in their own

files. Id. The court explained that, for tolling to apply, the authorization form must

provide authorization to retrieve the patient’s medical records from other medical

providers so that the defendants can evaluate the strength of the plaintiffs’ claim with the

legislative goal of encouraging settlement. Id. The court also rejected an argument by

the plaintiffs that, even if their authorization form was defective, the defendants waived

any statutory right that they could have asserted by failing to object to the form and to

request abatement of the lawsuit. Id. at 838-39. More specifically, the plaintiffs contended

that abatement—not the dismissal of their health care liability claim on summary

judgment—was the defendants’ only remedy. Id. at 838. The court explained that the


Borowski v. Ayers                                                                    Page 18
supreme court in Carreras rejected this interpretation of subsection 74.052(a)’s abatement

provision as unreasonable in situations in which the tolling provision is at issue. Id.

(citing Carreras, 339 S.W.3d at 73). The Carreras court stated:

       [T]he 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.

Carreras, 339 S.W.3d at 73-74. The Mitchell court therefore concluded that the abatement

provision had no application because the plaintiffs’ suit could not have been abated and

still filed within the limitations period. Mitchell, 376 S.W.3d at 839.

       In Brannan v. Toland, No. 01-13-00051-CV, 2013 WL 4004472 (Tex. App.—Houston

[1st Dist.] Aug. 6, 2013, pet. denied) (mem. op.), the plaintiffs sent the defendants a notice

of health care liability claim, but, rather than providing the authorization form prescribed

by section 74.052, the plaintiffs attached a signed, but otherwise blank, HIPAA medical

records release authorization form. Id. at *1. In the notice letter, the plaintiffs stated that

they had attached the form to authorize the defendant physician to release the patient’s

medical records to the plaintiffs’ attorney. Id. The plaintiffs argued that they provided

sufficient notice of their claim in substantial compliance with sections 74.051 and 74.052.

Id. The First Court of Appeals, however, noted the similarity with Mitchell. Id. at *3. The

court thus concluded that, as in Mitchell, because the form did not list any treating

physicians for the five years preceding the claim and did not authorize the defendants to


Borowski v. Ayers                                                                        Page 19
obtain medical records from those providers, as required by section 74.052, the plaintiffs

failed to give proper notice under sections 74.051 and 74.052, and the statute of limitations

was not tolled under section 74.051. Id. at *2-3.

       Finally, in Myles v. St. Luke’s Episcopal Hosp., 468 S.W.3d 207 (Tex. App.—Houston

[14th Dist.] 2015, pet. denied), the plaintiff sent the defendant a notice of health care

liability claim along with the authorization form prescribed by section 74.052. Id. at 208.

The beginning of the plaintiff’s authorization form tracked the statutorily prescribed text,

but it then deviated from subsection 74.052(c) in at least two ways: (1) it did not 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 (2) it did not identify the physicians

to whom the authorization did not apply. Id. at 210 (quoting TEX. CIV. PRAC. & REM. CODE

ANN. § 74.052(c)). The plaintiff argued that the seventy-five-day tolling provision should

nonetheless apply because his form substantially complied with section 74.052. Id. The

plaintiff contended that the omission was immaterial because he was admitted to the

defendant hospital so “there was no doubt as to who the health care providers were.” Id.

Relying on Nicholson and Mitchell, however, the Fourteenth Court of Appeals concluded

that the plaintiff’s authorization form failed to substantially comply with sections 74.051

and 74.052. Id. The court stated, “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


Borowski v. Ayers                                                                     Page 20
toll the statute of limitations.” Id. at 211.

       After considering the foregoing arguments and authorities, and the record before

us, we conclude that the Ayerses’ authorization form did not substantially comply with

sections 74.051 and 74.052. We are persuaded by Nicholson, Mitchell, Brannan, and Myles

that failing to list any of the names and addresses of a patient’s treating physicians or

health care providers during the five years before the incident made the basis of the notice

of health care claim seriously hinders the statutory design to enhance pre-suit

investigation, negotiation, and settlement. See also Johnson v. PHCC-Westwood Rehab. &

Health Care Ctr., LLC, No. 01-15-01106-CV, 2016 WL 4406231, at *4-5 (Tex. App.—Houston

[1st Dist.] Aug. 18, 2016, no. pet. h.).

       The Ayerses attempt to distinguish Nicholson, Mitchell, Brannan, and Myles. The

Ayerses assert that, unlike the plaintiffs in Nicholson and Myles, they did not leave any of

the fields in their authorization form completely blank and Appellants were not

“discouraged” by the error in the authorization form because, as in Rabatin, they could

actually use the authorization form to obtain the health information that they needed.

Additionally, the Ayerses assert that, unlike the plaintiffs in Mitchell and Brannan who

used a HIPAA-compliant general medical records release form, they provided an

authorization form that tracked the exact language of subsection 74.052 and allowed

Appellants    access    to   “ALL     HEATH     [sic]   CARE   PROVIDERS      PROVIDING

CARE/TREATMENT TO DARYL LYNN AYERS.”


Borowski v. Ayers                                                                    Page 21
       But although the Ayerses’ authorization form and the authorization forms in

Nicholson, Mitchell, Brannan, and Myles are not identically noncompliant with the

authorization form prescribed by subsection 74.052(c), the plaintiffs in Nicholson, Mitchell,

Brannan, and Myles, and the Ayerses in this case, all failed to list in the authorization

forms the name and current address of any health care provider who examined,

evaluated, or treated the patient during the five years before the incident that was the

basis of the notice of health care claim. Furthermore, even if an authorization form is

technically capable of being used to obtain a patient’s protected health information,

failing to identify from whom or from where to obtain the protected health information

seriously interferes with the statutory design to enhance pre-suit investigation,

negotiation, and settlement.

       The supreme court stated in Carreras that the purpose of section 74.051’s notice

provision “is to encourage negotiations and settlement of disputes prior to suit, thereby

reducing litigation costs.” Carreras, 339 S.W.3d at 73 (citing Garcia v. Gomez, 319 S.W.3d

638, 643 (Tex. 2010)). The supreme court further explained: “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.’”      Id. (quoting In re Collins, 286 S.W.3d 911, 916-17 (Tex. 2009)).    The

“otherwise privileged information” that a potential claimant is required to authorize the


Borowski v. Ayers                                                                     Page 22
disclosure of includes the protected health information in the custody of physicians or

health care providers who have examined, evaluated, or treated the patient during the

five years before the incident that is the basis of the notice of health care claim. See TEX.

CIV. PRAC. & REM. CODE ANN. § 74.052(c).           The purpose of authorizing potential

defendants to obtain this specific protected health information is to provide the potential

defendants the opportunity to explore the patient’s past medical history, including

preexisting conditions, for purposes of evaluating and potentially settling the claim. See

Mitchell, 376 S.W.3d at 838.

       By omitting from the authorization form the list of the patient’s treating physicians

for the previous five years, the authorization form fails to identify where the protected

health information might be located. This seriously hinders potential defendants from

exploring the patient’s past medical history for the statute’s purposes. See Myles, 468

S.W.3d at 210-11; Mitchell, 376 S.W.3d at 838; Nicholson, 2009 WL 3152111, at *6. And the

purpose of the notice requirement and the pre-suit negotiation period triggered by the

notice requirement are not fulfilled if potential defendants are deprived of the

opportunity to explore the patient’s past medical history for the statute’s purposes.

Mitchell, 376 S.W.3d at 838; see Carreras, 339 S.W.3d at 73.

       Also, the Ayerses’ reliance on Rabatin is misplaced.          The Rabatin court, in

concluding that the authorization form was sufficient to toll the statute of limitations,

reasoned that the notice letter and improperly filled-out authorization form gave fair


Borowski v. Ayers                                                                     Page 23
warning of a claim and an opportunity to abate the proceedings for negotiations and

evaluation of the claim, thereby carrying out the Legislature’s intent. Rabatin, 281 S.W.3d

at 562. Rabatin, however, was decided before Carreras. The supreme court in Carreras

explained:

       [T]he 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.

Carreras, 339 S.W.3d at 73-74. Therefore, as explained in Mitchell, the abatement provision

has no application in this case because the Ayerses’ suit could not have been abated and

still filed within the limitations period. See Mitchell, 376 S.W.3d at 839.

       In addition to attempting to distinguish Nicholson, Mitchell, Brannan, and Myles,

the Ayerses also complain that their authorization form substantially complied with

sections 74.051 and 74.052 because, as in Mock, Appellants did not present any evidence

that the authorization form actually hindered their ability to obtain medical records or

otherwise evaluate the Ayerses’ claim before suit was filed. The Ayerses assert that the

evidence instead shows that the authorization form was actually able to be used to obtain

at least some of the records necessary to evaluate the claim. The Ayerses point to a letter

from Dr. Bull and Hillcrest’s legal counsel, which states, “You have provided us with a

Medical Authorization which we can use to obtain medical records to evaluate on the

claim. We are in the process of obtaining medical records from providers outside of our


Borowski v. Ayers                                                                        Page 24
system.” The Ayerses also point to Dr. Plante’s responses to the Ayerses’ request for

disclosure in which he states, “Defendant has records obtained with authorization. All

parties have notice of these records.” Additionally, the Ayerses note in their brief that

Dr. Bull had been Daryl’s primary care physician since 2000 and “therefore would have

likely had access to the bulk of [Daryl’s] medical records for the previous five years, as

well as any records referring [Daryl] to other specialists.”

       The Myles court, however, rejected a similar argument. See Myles, 468 S.W.3d at

210-11.   Furthermore, “substantial compliance” does not permit a party to ignore

statutory requirements. Methodist Hosps. of Dallas v. Mid-Century Ins. Co. of Tex., 259

S.W.3d 358, 360 (Tex. App.—Dallas 2008, no pet.). The courts possess no legislative

powers; therefore, the courts cannot excuse plaintiffs’ noncompliance with statutory

requirements merely because defendants, despite plaintiffs’ noncompliance, are able to

accomplish some of the Legislature’s purpose in imposing the statutory requirements.

Although we may hold statutory language that appears to impose a mandatory duty to

be only directory when that interpretation is most consistent with the Legislature’s intent,

a party must still have performed the essential requirements of the statute for the party

to have substantially complied with it. See, e.g., Conn, Sherrod & Co. v. Tri-Elec. Supply Co.,

535 S.W.2d 31, 34-35 (Tex. Civ. App.—Tyler 1976, writ ref’d n.r.e.) (holding that liberal

interpretation and substantial compliance did not allow courts to alter meaning of

statutory language and that timely filing of affidavit without correct jurat was not


Borowski v. Ayers                                                                      Page 25
substantial compliance as required to perfect materialman’s lien). And, as discussed

above, we conclude that an essential requirement of sections 74.051 and 74.052 is listing

in the authorization form the name and current address of any health care provider who

examined, evaluated, or treated the patient during the five years before the incident that

was the basis of the notice.

       The Ayerses’ reliance on Mock is also misplaced. In Mock, the plaintiffs filled out

one blank incorrectly—an “inadvertent mistake”—in an authorization form that

otherwise complied with the form prescribed by section 74.052. Mock, 379 S.W.3d at 394-

95. The plaintiffs properly completed blanks requiring the same information in two other

paragraphs in the authorization form. Id. at 395 n.2. Here, however, where the statutorily

prescribed authorization form states to “list the name and current address” of the

physicians or health care providers who had examined, evaluated, or treated Daryl

during the five years before the incident made the basis of the notice, the Ayerses stated

“ALL HEATH [sic] CARE PROVIDERS PROVIDING CARE/TREATMENT TO DARYL

LYNN AYERS.” The Ayerses completely failed to identify any of Daryl’s physicians or

health care providers for the previous five years.

       The Ayerses assert in a footnote that Appellants did not conclusively prove that

the Ayerses were required to identify any health care providers because they did not

present any evidence that Daryl had any health care providers in the five years preceding

his death. The Ayerses point out that the authorization form prescribed by subsection


Borowski v. Ayers                                                                  Page 26
74.052(c) states to “list the name and current address of such physicians or health care

providers, if applicable.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.052(c) (emphasis added).

But the Ayerses’ authorization form itself is evidence that Daryl had health care providers

during the five years before the incident. Where the Ayerses were directed in the

authorization form to “list the name and current address of such physicians or health care

providers,” the Ayerses stated “ALL HEATH [sic] CARE PROVIDERS PROVIDING

CARE/TREATMENT TO DARYL LYNN AYERS.” This indicates that there were health

care providers who provided care and treatment to Daryl.

       In light of the foregoing, we conclude that the Ayerses’ authorization form did not

substantially comply with sections 74.051 and 74.052 and was therefore insufficient to toll

the statute of limitations. The trial court thus erred in denying Appellants’ motions for

summary judgment on that specified ground. We sustain Appellants’ sole issue.

       The Ayerses contend that Dr. Bull’s and Hillcrest’s motion for summary judgment

should nevertheless have been denied because a fact issue exists as to whether Dr. Bull

and Hillcrest should be estopped from asserting the statute of limitations. We need not

address this issue. The trial court did not deny their summary judgment motion on this

ground, and subsection 51.014(d) does not authorize an interlocutory appeal when the

trial court does not substantively rule on the controlling legal issue being appealed.

Borowski, 432 S.W.3d at 347; see TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d).

       We reverse the trial court’s order denying Appellants’ motions for summary


Borowski v. Ayers                                                                   Page 27
judgment and remand the cause to the trial court for further proceedings consistent with

this opinion.




                                               REX D. DAVIS
                                               Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and remanded
Opinion delivered and filed October 12, 2016
[CV06]




Borowski v. Ayers                                                                Page 28
