The Texas Supreme Court has agreed to hear two cases involving an important aspect of the 2003 health care liability reforms. The cases present the court with opinions that reached opposite conclusions on similar facts.
Section 74.051, CPRC, requires a claimant to give notice of a health care liability claim to each physician or provider against whom the claim is being made at least 60 days prior to filing suit. The statute requires the notice to be accompanied by a medical authorization releasing protected health information. That form is set out in § 74.052 and requires the claimant to authorize the physician or provider to obtain protected health information and associated billing records of physician and providers who have examined, evaluated, or treated the claimant for the injuries alleged in the claim and extends to physicians and providers that may in the future examine, evaluate, or treat the claimant. The form also requires authorization for health information and billing records in the custody of physicians or providers who have examined, evaluated, or treated the claimant in the five years preceding notice of the claim. Once the claimant files a notice of claim and a compliant medical authorization, the statute of limitations is tolled for 75 days as to all parties and potential parties. § 74.051(c).
The cases are Dorothy Hampton v. Leonard Thome (No. 09-20-00022-CV; No. 23-0435) and Acadian Ambulance Service, Inc. and Acadian Service of Texas, LLC v. Gary Lew Maypole, Sr., Individually and as Personal Representative of the Estate of Gary Lew Maypole II, Deceased, and Tamara Jean Maypole as Next Friend of H.K.M. and D.T.M., Minors (No. 05-18-00539-CV; No. 22-0609). In the first case, the Beaumont Court of Appeals reversed a trial court order denying defendant physician’s motion to dismiss on limitations grounds. The court held that plaintiff had failed to comply with § 74.052 and thus did not toll limitations for an additional 75 days. At issue was the adequacy of the medical authorization, which did not authorize the defendant to access the health information and billing records of 11 of plaintiff’s 13 providers, some of whom had treated her injuries and others had treated her in the previous five years. Further, the release form used by plaintiff’s attorney was not the statutory form, which requires language stating that the release extends to providers who treated plaintiff after the date she signed the release. The court found that the medical authorization did not comply with the statutory requirements and dismissed plaintiff’s claim.
In the second case, the trial court granted the defendants’ motion to dismiss based on limitations. A panel of the Dallas Court of Appeals affirmed, but the court granted en banc hearing and reversed the panel. Here the medical authorization listed only two providers who treated plaintiff’s injuries and no providers for the previous five-year period. The en banc court held that the authorization substantially complied with the statute. It reached this conclusion by parsing § 74.052 and finding no explicit requirement that plaintiff list “all” physicians and providers (even though the form certainly seems to contemplate that). It held further that the authorization did not need to authorize Acadian to access its own records. Finally, and this seems the most problematic holding in the opinion, the court of appeals ruled that Acadian had to demonstrate harm or prejudice from the exclusion of providers from the authorization and failed to do so. Nothing in the statue imposes this standard, probably for the reason that a defendant cannot show harm or prejudice without knowing the identity those providers, which could only be obtained from the medical authorization itself. The court brushed this problem aside, concluding that § 74.052 was not intended to be a “gotcha,” whatever that means in this context.
The cases have been consolidated for oral argument, which has yet to be scheduled. Meanwhile, the Legislature is getting into the act. HB 3063 would amend § 74.051(c) to require tolling of the statute of limitations “[n]otwithstanding the inadequacy of a medical authorization provided under Section 74.052 . . .” We understand that talks on the bill are ongoing between our friends at Texas Alliance for Patient Access and representatives of TTLA. We’ll keep a close eye on both the judicial and legislative tracks.
*Many thanks to our friends at TAPA for alerting us to these cases and providing a summary of the intermediate appellate opinions.