
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-07-00330-CV


Milton Hill, Individually and on behalf of The Heirs of Andrea K. Hill, Appellant

v.

Kimberly Ann Russell, CRNA, Appellee




FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-GN-07-000564, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING


O P I N I O N

	Appellant Milton Hill, individually and on behalf of the heirs of Andrea K. Hill, filed 
a health care liability claim against appellee Kimberly Ann Russell, CRNA.  Russell sought
summary judgment, arguing that Mr. Hill's suit was barred by limitations.  The trial court agreed,
granting summary judgment in Russell's favor.  Mr. Hill appeals, and we reverse and remand.

Factual background
	Andrea K. Hill, Mr. Hill's daughter, died during surgery for removal of a cyst on
September 23, 2004.  Russell, a nurse anesthetist, provided anesthesia services to Ms. Hill during
surgery.  On September 21, 2006, Mr. Hill sent Russell a notice of claim pursuant to section 74.051
of the civil practice and remedies code.  See Tex. Civ. Prac. & Rem. Code Ann. § 74.051
(West 2005).  Mr. Hill neglected to enclose with the notice the form authorizing the release of
Ms. Hill's health information, which is required by section 74.052.  See id. § 74.052 (West 2005). 
Mr. Hill corrected that omission four days later, sending the authorization form to Russell on
September 25, 2006.  On December 6, 2006, Mr. Hill filed suit against Russell, (1) asserting that she
had breached the standard of care in her treatment of Ms. Hill, resulting in Ms. Hill's death. (2) Russell
moved for summary judgment, arguing that Mr. Hill's claims were barred by the two-year statute
of limitations on health care liability claims.  See id. § 74.251 (West 2005).  Mr. Hill responded that
his suit was timely under section 74.051(c), which tolls the running of limitations for seventy-five
days if a claimant provides the defendant with notice of a claim under chapter 74.  See id.
§ 74.051(c).  Russell argued that because Mr. Hill did not provide the authorization form with his
notice and within two years of Ms. Hill's death, Mr. Hill did not provide Russell proper notice that
would toll the running of limitations.  The trial court granted summary judgment in Russell's favor. 
Mr. Hill moved for a new trial, which was overruled as a matter of law.  See Tex. R. Civ. P. 329b(c). 

Discussion
	It is undisputed that Mr. Hill did not file his suit within two years of Ms. Hill's death. 
Therefore, his suit is barred by limitations unless he can rely on a tolling provision that makes his
suit--filed on December 6, 2006, approximately two years and two months after the cause of action
accrued--timely.  The issue before us, then, is whether Mr. Hill's failure to include the authorization
form with his notice of claim, which was provided to Russell within two years of Ms. Hill's death,
means that the notice did not toll the running of limitations until suit was filed.  Russell insists that
proper notice that allows a plaintiff to rely on section 74.051(c) for tolling requires three
elements--the notice itself, the medical authorization form, and service by certified mail.  See
Tex. Civ. Prac. & Rem. Code Ann. § 74.051(a).  Because the notice timely sent by Mr. Hill lacked
the authorization form, she argues, the notice was insufficient to trigger the seventy-five day tolling
of limitations.  Mr. Hill, on the other hand, contends that his failure to include the form did not
invalidate his timely notice and that Russell was at most entitled to a four-day abatement under
section 74.052(a).  See id. § 74.052(a) (failure to include authorization with notice abates
proceedings against defendant "until 60 days following receipt" of authorization form).  Because we
agree with Mr. Hill that the authorization form is a separate document from the required "notice" that
triggers tolling under section 74.05(c), we reverse the trial court's granting of summary judgment
and remand the cause for further proceedings.
	We review the granting of summary judgment de novo and 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 Gen. Partner, 185 S.W.3d at 846 (citations omitted).

	Section 74.051 requires a health care liability claimant to 

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 form 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.


Tex. Civ. Prac. & Rem. Code § 74.051(a), (c).  Section 74.052 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 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).  

	Russell contends that because the authorization form is required by section 74.051(a),
its absence rendered Mr. Hill's notice ineffective to trigger the seventy-five day tolling period. 
Russell's argument, however, requires us to read the statute more strictly than necessary and requires
us to imply language that the legislature chose not to insert into the statute.  When interpreting a
statute, we attempt to discern the legislature's intent and we begin our inquiry with the plain
language of the statute.  Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66
(Tex. 1999).  We assume that the legislature "tries to say what it means" and keep in mind that
"ordinary citizens should be able to rely on the plain language of a statute to mean what it says."  Id.
at 866.  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, not a single section in
isolation.  Id. at 866.
	In enacting sections 74.051 and 74.052, the legislature unambiguously referred to the
required "notice," which triggers tolling, as a separate document from the authorization form.  See
Tex. Civ. Prac. & Rem. Code Ann. §§ 74.051, .052.  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.  Id. § 74.052(a).  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 with the notice.  Id. § 74.051.  It is the provision of
"notice," not the authorization form that triggers tolling under section 74.051(a).
	Had the legislature intended Russell's proposed interpretation, it easily could have
written that intention into the statute, and we will not read such language into the statute,
which would require us to ignore the legislature's use of "notice" in the statute as distinct from the
"authorization form."  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. 
De Checa v. Diagnostic Ctr. Hosp., Inc., 852 S.W.2d 935, 938 (Tex. 1993) (quoting
Schepps v. Presbyterian Hosp., 652 S.W.2d 934, 938 (Tex. 1983)); see also Hines v. Hash,
843 S.W.2d 464, 468 (Tex. 1992) (referring to former health care liability notice provision in
interpreting deceptive trade practices notice provision, and stating that purpose of notice requirement
statutes "is better served by abating an action filed without notice for the duration of the statutory
notice period to allow the parties to negotiate, than by dismissing the action altogether").  Abatement
of a suit brought by a plaintiff who fails to provide pre-suit notice, rather than immediate dismissal,
also furthers negotiation and settlement.  See De Checa, 852 S.W.2d at 938; Schepps, 652 S.W.2d
at 938.  Similarly, allowing tolling when a plaintiff sends notice without the authorization form gives
the health care provider fair warning of an imminent claim and then allows the provider to obtain
an abatement for negotiations and evaluation of the claim.  We will not read an overly strict and
unfounded requirement into section 74.051 when the plain language of the statute provides us with
an unambiguous and reasonable meaning.  See Fitzgerald, 996 S.W.2d at 865-66.  
	We conclude that a plaintiff's failure to include the required but separate
authorization form when he provides notice of his claim to a defendant health care provider within
the two-year limitations period does not bar the tolling of limitations but instead allows the provider
to obtain an abatement until sixty days after she receives the authorization form.  We therefore
reverse the trial court's granting of summary judgment in Russell's favor and remand the cause to
the court for further proceedings.

					__________________________________________
					David Puryear,  Justice
Before Justices Patterson, Puryear and Pemberton
Reversed and Remanded
Filed:   February 14, 2008
1.   Mr. Hill also sued the hospital where the surgery took place.  After the trial court granted
summary judgment in favor of Russell, it severed Mr. Hill's claims against Russell from those
against the hospital.  Claims related to the hospital are not before us in this cause.
2.   In his original petition, Mr. Hill mistakenly referred to the notice requirements of "Article
4590i, Section 4.01(a) of the Medical Liability and Insurance Improvement Act."  However, article
4590i, which included a notice requirement and allowed for the tolling of limitations upon proper
notice, was repealed effective September 1, 2003, and replaced by section 74.051 of the civil practice
and remedies code.  See Tex. Civ. Prac. & Rem. Code Ann. § 74.051 (West 2005).  This minor error
in pleading is not an issue on appeal.
