An en banc Dallas Court of Appeals has reversed a summary judgment in favor of the provider in a Chapter 74 health care liability claim.
Gary Lee Maypole, Sr., Individually and as Personal Representative of the Estate of Gary Lew Maypole, Jr., Deceased, and Tamara Jane Maypole, as Next Fried of H.K.M. and D.T.M., Minors v. Acadian Ambulance Service, Inc. and Acadian Ambulance Service of Texas, LLC (No. 05-18-00539-CV) arose from the death of a patient being transported between hospitals by critical-care-transport personnel of Acadian Ambulance Services. Plaintiffs allege that the deceased suffered cardiac arrest while in route and, although he was resuscitated, subsequently died from anoxic brain injury. Plaintiffs’ expert opined that the personnel “failed to perform endotracheal suctioning of [the deceased’s] endotracheal tube in a competent manner by leaving a suction catheter fully inserted inside the endotracheal tube.” The team’s failure to recognize and correct the error in a timely manner caused the deceased’s cardiac arrest and subsequent death.
Plaintiffs filed a wrongful death and survival action. They provided pre-suit notice of the claim to Acadian, accompanied by a medical authorization releasing the deceased records, as required by Chapter 74. Filing of pre-suit notice tolls the statute of limitations for 75 days, during which time Plaintiffs filed suit. After the extended limitations period expired, Acadian moved for traditional summary judgment on the basis that the medical authorization was deficient and therefore failed to toll limitations, barring Plaintiffs’ lawsuit. The trial court granted summary judgment for Acadian on the limitations issue.
On appeal, Plaintiffs argued that the medical authorization substantially complied with §74.052, CPRC, because it released the deceased’s records from the two hospitals involved. In response, Acadian contends that the authorization did not list any providers who treated the deceased for his heart disease for the five preceding years as specified in the statutory medical authorization form contained in §74.052(c). Acadian further argues that the authorization’s failure to name Acadian itself rendered it deficient (although Acadian used those records to support its summary judgment motion). The court of appeals rejected Acadian’s arguments on the basis that Plaintiffs’ substantially complied with §74.052(c) when they provided authorization of the release of the deceased’s records from the hospital that had treated the deceased, which identified the deceased’s primary care physician, cardiologist, and pain management physician; the deceased’s medications as of the date of his death; the deceased’s past medical and surgical history; and a list of the deceased’s health conditions on the date of his last admission to the hospital. The court also found that Acadian possessed more than 900 pages of the deceased’s medical records, which it used selectively to support its summary judgment motion and failed to establish that it did not have access to the relevant information or that any alleged deficiencies interfered with its ability to investigate Plaintiffs’ claims.
The court of appeals’ analysis turns on whether the medical authorization provided Acadian with information sufficient to investigate the claim and assess the potential for early settlement, as the law intends. Here the court found that Acadian did not attempt to obtain the records for the purposes of pre-suit investigation, negotiation, and settlement. It simply waited until limitations expired (although there is a question as to whether limitations for the minor children had expired as well) before taking the position that failure to strictly comply with the statute created a presumption of harm that negated the tolling provision. Even if the court had not found substantial compliance, moreover, it held that Acadian’s remedy was abatement, not dismissal, under §74.052(a). The court thus declined to read a “draconian result into the statute” where the Legislature had not explicitly mandated it. “Abatement, in this case,” the court concluded, “would comport with precedent and meet the constitutional imperatives that favor the determination of cases on their merits rather than on harmless procedural defaults.”
This is an interesting case that may be so unique in its facts that it won’t generate a whole lot of new jurisprudence. But it does raise an issue about “substantial compliance” with the medical authorization requirement. The form of the authorization, as noted above, is codified in the statute. The Legislature thus clearly intended for the plaintiff to fill in all the blanks in some form or fashion. On the other hand, there is nothing in §74.052, as the court of appeals pointed out, that addresses what happens if the plaintiff serves an incomplete or allegedly deficient form. Moreover, the tolling provision in §74.051(c) only refers to the pre-suit notice, not the authorization form, whereas §74.051(a) provides that abatement is the remedy if the plaintiff fails to serve the pre-suit notice. How all of this fits together is not entirely clear. But given the facts, which pretty plainly show that Acadian was not harmed by any alleged deficiency in the form to begin with, this case is probably not the best one for sorting it out.
*George E. Christian, TCJL’s research intern, researched and contributed to writing this article.
