Adam M. Borowski, M.D., Brian D. Bull, M.D., and Hillcrest Family Health Center v. Karen Ayers, Individually and as Representative of the Estate of Daryl Lynn Ayers, and Ethan Ayers
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]
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