Thomas A. Rabatin, Individually and as Personal Representative of the Estate of Maria Rabatin, Tony Chacon and Andres Chacon v. Joseph Kidd, M. D., Haroutioun Shahinian, M. D. and Neil Grieshop, M. D.

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

THOMAS A. RABATIN, §
INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE §
OF MARIA RABATIN, DECEASED,
TONY CHACON AND ANDRES § No. 08-07-00137-CV
CHACON,
§ Appeal from the
Appellants,
§ County Court of Law Number Three
v.
§ of El Paso County, Texas

JOSEPH KIDD, M.D., HAROUTIOUN § (TC# 2006-1296)
SHAHINIAN, M.D., AND NEIL
GRIESHOP, M.D. §

Appellees. §

OPINION

This is an appeal from a summary judgment based on the statute of limitations of the

Texas Medical Liability Act.1 Appellants mailed the notice and medical authorization form as

required to toll the statute of limitations, but the authorization form was defective. We reverse

and remand.

FACTUAL AND PROCEDURAL BACKGROUND

1
This is one of three essentially identical opinions involving all the same issues. See
Thomas A. Rabatin, Individually and as Personal Representative of the Estate of Maria Rabatin,
Deceased, Tony Chacon and Andres Chacon v. Genaro Vazquez, M.D., 08-07-00138-CV
(Tex.App.--El Paso October 23, 2008, no pet.h.) and Thomas A. Rabatin, Individually and as
Personal Representative of the Estate of Maria Rabatin, Deceased, Tony Chacon and Andres
Chacon v. Alfonso Chavez, M.D., 08-07-00139-CV (Tex.App.--El Paso October 23, 2008, no
pet.h.).
 Maria Rabatin was admitted to Sierra Medical Center on January 4, 2004, by Dr. Alfonso

Chavez. She passed away on January 11, 2004, due to a perforated blood vessel during the

insertion of a central line. Appellants sent a notice letter with a medical authorization form to

Dr. Grieshop on October 7, 2005. The authorization form excluded Dr. Chavez’s and all other

doctors’ records that were listed as having treated Mrs. Rabatin within a five-year period before

the treatment that was the basis of the claim and did not give the dates of treatment. Appellants

sent notice letters with medical authorizations forms to all defendants on December 29, 2005.

This form again excluded the doctors’ records who had treated Mrs. Rabatin within 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. The medical authorization form accompanying the

December letter was held to be statutorily noncompliant by the trial court. Defendants argue that

the medical authorization form sent with the October notice letter was likewise statutorily

noncompliant. However, Dr. Shahinian’s attorney was able to use the December medical

authorization form to obtain Mrs. Rabatin’s records from Sierra Medical Center.

Appellants filed suit on March 20, 2006, more than two years’ after Maria Rabatin’s

death. On June 8, 2006, Appellants provided a statutory compliant medical records authorization

form. On July 13, 2006, the trial court granted Defendants’ motions to abate for sixty days from

the receipt of the compliant authorization form. The trial court granted the Defendants’ motions

for summary judgment.

Appellants raise three issues on appeal. Appellants contend that the trial court erred in

granting the motion for summary judgment because the suit was timely filed, the medical

authorization form violates the Health Insurance Portability and Accountability Act of 1996

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(HIPAA), and there is a genuine issue of material fact.

DISCUSSION

In Appellants’ first issue, they argue that summary judgment was improperly granted

because the statute of limitations was tolled. Summary judgment is reviewed de novo to

determine whether a party’s right to prevail is established as a matter of law. Capitan

Enterprises, Inc. v. Jackson, 903 S.W.2d 772, 775 (Tex.App.--El Paso 1994, writ denied). A

defendant moving for summary judgment on the affirmative defense of limitations has the burden

to conclusively establish that defense. Torres v. GSC Enterprises, Inc., 242 S.W.3d 553, 561

(Tex.App.--El Paso 2007, no pet.), citing KPMG Peat Marwick v. Harrison County Housing

Finance Corp., 988 S.W.2d 746, 748 (Tex. 1999). The defendant must conclusively prove when

the cause of action accrued and negate the discovery rule if it applies and has been pled or

otherwise raised. Torres, 242 S.W.3d at 561. If the movant establishes that the statute of

limitations bars the action, the non-movant must then adduce summary judgment proof raising a

fact issue in avoidance of the statutes of limitations. Id.

There is a two-year statute of limitations on health care liability claims, which starts 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.

TEX .CIV .PRAC.&REM .CODE ANN . § 74.251 (Vernon 2005). The medical liability statute’s notice

provision, in pertinent parts, states:

(a) 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

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 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, and this tolling shall apply to all parties and potential parties.

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

Section 74.052 states:

(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 a 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.

(b) If the authorization required by this section is modified or revoked, the
physician or health care provider to whom the authorization has been
given shall have the option to abate all further proceedings until 60 days
following receipt of a replacement authorization that must comply with the
form specified by this section.

TEX .CIV .PRAC.&REM .CODE ANN . § 74.052(a), (b).

Appellants argue that the statute of limitations was tolled by their sending of a notice

letter to Dr. Greishop on October 7, 2005 and to the other doctors on December 29, 2005.

Appellees argue that the attached medical authorization form was defective, and as such,

Appellants could not receive the benefit of tolling the statute of limitations.

Statutory construction demands that we carry out the “collective” legislative intent or

purpose. State v. Sanchez, 135 S.W.3d 698, 699 (Tex.App.--Dallas 2003), aff’d, 138 S.W.3d 324

(Tex.Crim.App. 2004). We look first to the language in the statutory text. Lexington Ins. Co. v.

Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006). We rely on the plain meaning of the text unless such

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a construction leads to absurd results. City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26

(Tex. 2008). When a statute is unambiguous, it is inappropriate to resort to rules of construction

or extrinsic aids to construe the language. Id. at 626. In construing legislative intent, we may

consider, inter alia, the legislative history, former statutory provisions, and the consequences of a

particular construction. Sides v. Guevara, 247 S.W.3d 293, 297 (Tex.App.--El Paso 2007, no

pet.), citing Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001); TEX .GOV ’T CODE

ANN . § 311.023 (Vernon 2005).

The Legislature’s purpose in requiring notice in a medical liability suit is to encourage

pre-suit negotiations, settlement, and reduce litigation costs. Hill v. Russell, 247 S.W.3d 356,

360 (Tex.App.--Austin 2008, no pet.), citing De Checa v. Diagnostic Ctr. Hosp., Inc., 852

S.W.2d 935, 938 (Tex. 1993). We are cognizant of the holding in Hill v. Russell, which stated

only the notice letter is required to toll the statute of limitations, but do not agree with this

reading of the statute. See id. The previous statute required only a notice letter be sent to receive

the benefit of the tolling statute. TEX .REV .CIV .STAT .ANN . art. 4590i, § 4.01(a),(c), repealed by

Act of June 2, 2003, 78th Leg. R.S., Ch. 204, § 10.09, 2003 TEX .GEN .LAWS 847, 884. Article

4590i was replaced effective September 1, 2003, with Section 74.051, and the Legislature added

the medical authorization requirement to the notice section. See TEX .CIV .PRAC.&REM .CODE

ANN . § 74.051(a).

In this case, Appellants sent a notice letter and a authorization form to Dr. Grieshop in

October and to all the defendants in December. However, the authorization forms excluded the

doctors’ records who had treated her within five years of the treatment listed as forming the basis

of the claim including Dr. Chavez, who had admitted her into the hospital, and the December

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form also had blank spaces as to who could access the records. Yet, Dr. Shahinian’s counsel was

able to obtain records from Sierra Medical Center on his behalf using the December

authorization form. The statute clearly requires that the notice must be accompanied by a

medical authorization form in order to toll the limitations period, which did happen here.

TEX .CIV .PRAC.&REM .CODE ANN . § 74.051(a), (c). When notice is sent to any health care

provider within two years of the claim’s accrual, the limitations period for all defendants is tolled

for seventy-five days. See De Checa, 852 S.W.2d at 938; TEX .CIV .PRAC.&REM .CODE ANN .

§ 74.051(c). Tolling the statute of limitations when a notice letter and medical authorization

form, albeit a 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. See Hill, 247 S.W.3d at 360.

We hold the notice letter sent with the medical authorization form on October 7, 2005 to

Dr. Grieshop was sufficient to toll the statute of limitations as to all the defendants through

constructive notice while the December 29, 2005 letter and authorization form provided actual

notice to all the defendants. TEX .CIV .PRAC.&REM .CODE ANN . § 74.051(c); See also De Checa,

852 S.W.2d at 938. Appellants’ Issue One is sustained, and as such, we need not address

Appellants’ remaining two issues.

Having sustained Appellants’ Issue One, we reverse and remand the case to the trial court

for further proceedings.2

2
Appellants prayed for a consolidation of their causes of action against all Appellees into
Cause No. 2006-1296 in County Court at Law Number Three, this request should be made to the
trial court upon remand.

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October 23, 2008
DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, J., and Ables, Judge
Ables, Judge (Sitting by Assignment)

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