Myra Walthour v. Advanced Dermatology and Dr. Adrianna Jackson

Affirmed and Memorandum Opinion filed March 6, 2018.

In The

Fourteenth Court of Appeals

NO. 14-17-00332-CV

MYRA WALTHOUR, Appellant
V.
ADVANCED DERMATOLOGY AND DR. ADRIANNA JACKSON,
Appellees

On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Cause No. 88343-CV

MEMORANDUM OPINION
Myra Walthour sued Advanced Dermatology and Dr. Adrianna Jackson for
injuries she sustained after a chemical peel. The trial court granted summary
judgment in favor of Advanced Dermatology and Jackson, ruling that Walthour’s
claim was barred by the applicable two-year statute of limitations and that her pre-
suit notice and authorization form were ineffective to toll the limitations period. We
affirm.
 BACKGROUND

Walthour asserts a health care liability claim and contends that she received
“second degree burns to her back and shoulders” from a chemical peel administered
by Advanced Dermatology and Jackson.

Before filing suit, Walthour mailed the statutorily required notice and
authorization form to Advanced Dermatology and Jackson on July 5 and 8, 2017.
See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.051(a) (Vernon 2017), 74.052 (Vernon
Supp. 2017). Two notices were mailed on July 5, 2017, one addressed to Advanced
Dermatology and the other addressed to Jackson. An additional notice addressed to
Advanced Dermatology was mailed on July 8, 2017. All three mailings contained
the same notice letter, authorization form, and list of doctors, and were attached as
exhibits to the summary judgment motion.

Walthour’s notice letter states:

As a direct result of the treatment [Walthour] received on July 9, 2014
she suffered severe pain and burns. She returned to your facility on
July 10, 2014 to complain of severe pain and burning. She was told
that no one was available to see her. She required emergency treatment
on July 11, 2014 for second degree burns.

Walthour’s authorization form included a list of 13 medical providers identified as
“Myra Walthour Medical providers in the past 5 years.” The list of medical
providers did not include Advanced Dermatology and Jackson; the emergency
treatment provider referenced in Walthour’s notice letter; or any other medical
provider who treated Walthour after the incident made the basis of her suit.

The envelopes in which Walthour’s notices and authorization forms were
mailed were included as summary judgment exhibits. All three envelopes state that
the mailings were unclaimed and returned to the sender.

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 Walthour sued Advanced Dermatology and Jackson on September 12, 2016.
Walthour’s original petition states:

At all times material hereto, Myra Walthour was a patient under the
care of Defendants, Advanced Dermatology and Dr. Adrianna Jackson,
having sought Defendants’ professional expertise, judgment, skill,
competence, advice and treatment for skin treatment. The care or
treatment consisted of applying chemical peels, and began on or about
February 2014 and continued until July 2014. During the course of said
treatment, Myra Walthour suffered the following injuries: second
degree burns to her back and shoulders, attributable to: the chemical
peel administered by Defendants.
Advanced Dermatology and Jackson filed a joint traditional summary judgment
motion, asserting that Walthour’s health care liability claim was barred by the
applicable two-year statute of limitations. See Tex. R. Civ. P. 166(a); Tex. Civ. Prac.
& Rem. Code Ann. § 74.251(a) (Vernon 2017). The trial court granted the summary
judgment motion in an order signed April 3, 2017. Walthour timely appealed.

LEGAL STANDARD

A summary judgment is reviewed de novo. Exxon Mobil Corp. v. Rincones,
520 S.W.3d 572, 579 (Tex. 2017). When reviewing a summary judgment, we
examine the record in the light most favorable to the nonmoving party, indulging
every reasonable inference and resolving any doubts in the nonmoving party’s favor.
Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015).

The party moving for traditional summary judgment has the burden of
showing that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law. Tex. R. Civ. P. 166a(c); Exxon Mobil Corp., 520
S.W.3d at 579. When a defendant moves for summary judgment on an affirmative
defense, it must conclusively prove all the essential elements of its defense as a

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 matter of law. Sharp v. Kroger Tex. L.P., 500 S.W.3d 117, 119 (Tex. App.—
Houston [14th Dist.] 2016, no pet.).

ANALYSIS

Walthour asserts that (1) the trial court erred by granting summary judgment
on limitations because Walthour’s pre-suit notice and authorization form were
sufficient to toll the statute of limitations applicable to her health care liability claim;
(2) the failure to claim or receive Walthour’s mailings rendered any deficiencies in
the notice letter and authorization form immaterial; and (3) Advanced Dermatology
and Jackson failed to present evidence showing when Walthour’s claim accrued as
necessary to warrant summary judgment on limitations.

We address each of these contentions in turn.

I. Statute of Limitations

Walthour does not dispute that she filed suit against Advanced Dermatology
and Jackson more than two years after her cause of action accrued. Walthour asserts
that the notice and authorization form she sent “substantially complied with the
statutory requirements and is sufficient to toll the statute of limitations.”

Health care liability claims are subject to a two-year statute of limitations.
Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a). The limitations period commences
from (1) the occurrence of the breach or tort; (2) the last date of the relevant course
of treatment; or (3) the last date of the relevant hospitalization. Myles v. St. Luke’s
Episcopal Hosp., 468 S.W.3d 207, 208 (Tex. App.—Houston [14th Dist.] 2015, pet.
denied).

The two-year limitations period is tolled for 75 days if the plaintiff mails to
the defendant written notice of the plaintiff’s health care liability claim accompanied
by an authorization form for the release of protected health information. Tex. Civ.

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Prac. & Rem. Code Ann. § 74.051(a), (c); see also Jose Carreras, M.D., P.A. v.
Marroquin, 339 S.W.3d 68, 74 (Tex. 2011) (“[F]or the statute of limitations to be
tolled in a health care liability claim . . . a plaintiff must provide both the statutorily
required notice and the statutorily required authorization form.”). The notice and
authorization form must be sent at least 60 days before filing suit. Tex. Civ. Prac.
& Rem. Code Ann. § 74.051(a).

Section 74.052 states that “[t]he medical authorization required by this section
shall be in the following form,” and it sets out the precise text of the form with blanks
to be filled in with information specific to the plaintiff’s suit. See id. § 74.052.
Section 74.052 instructs the plaintiff to provide the names and current addresses for
the following categories of health care providers:

1. The physicians or health care providers who examined, evaluated, or
treated the plaintiff in connection with the injuries alleged to have been
sustained in connection with the plaintiff’s health care liability claim.
2. The physicians or health care providers who examined, evaluated, or
treated the plaintiff during a period commencing five years prior to the
incident made the basis of the plaintiff’s health care liability claim.
3. The physicians or health care providers possessing healthcare
information concerning the plaintiff to whom the plaintiff’s
authorization does not apply because such healthcare information is not
relevant to the damages being claimed or to the plaintiff’s physical,
mental, or emotional condition arising out of the health care liability
claim. If the plaintiff does not want to exclude any health care
providers from the authorization form, the statute instructs the plaintiff
to list “none.”

Id. The notice and authorization form are intended to “encourage negotiations and
settlement of disputes prior to suit, thereby reducing litigation costs.” Marroquin,
339 S.W.3d at 73.

A medical authorization form that does not contain section 74.052’s required
information does not toll the statute of limitations when the missing information
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“interferes with the statutory design to enhance the opportunity for pre-suit
investigation, negotiation, and settlement.” Mitchell v. Methodist Hosp., 376 S.W.3d
833, 837 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).

This court has concluded that the plaintiff’s authorization form did not toll the
applicable statute of limitations when the form failed to identify (1) the plaintiff’s
treating physicians for the five years before the incident forming the basis of the
plaintiff’s suit; and (2) the physicians excluded from the authorization. Myles, 468
S.W.3d at 210-11; see also Nicholson v. Shinn, No. 01-07-00973-CV, 2009 WL
3152111, at *5-6 (Tex. App.—Houston [1st Dist.] Oct. 1, 2009, no pet.) (mem. op.)
(plaintiff’s authorization form did not toll statute of limitations when form did not
(1) list plaintiff’s treating physicians for the past five years; and (2) include
completed authorization as necessary to secure the release of plaintiff’s health
information).

Similarly, an authorization form that provided only a portion of the requested
health care information did not toll the statute of limitations. See Davenport v. Adu-
Lartey, 526 S.W.3d 544, 554 (Tex. App.—Houston [1st Dist.] 2017, pet. denied)
(authorization form that “omitted physicians who treated [the plaintiff] in the five-
year period preceding the 2012 surgery, numerous persons and entities involved in
the 2012 surgery at the heart of this case, and a majority of the providers who treated
[the plaintiff] after the 2012 surgery” did not toll limitations period); Johnson v.
PHCC-Westwood Rehab. & Health Care Ctr., LLC, 501 S.W.3d 245, 251-52 (Tex.
App.—Houston [1st Dist.] 2016, no pet.) (authorization form that excluded five
treating physicians and two other health care providers that treated the plaintiff for
injuries forming the basis of her claim did not toll limitations period).

Here, Walthour’s authorization form included a list of 13 medical providers
identified as “Myra Walthour Medical providers in the past 5 years.” Walthour’s

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authorization form did not segregate the medical providers into the three categories
prescribed by section 74.052. See Tex. Civ. Prac. & Rem. Code Ann. § 74.052.
Walthour’s authorization form failed to list Advanced Dermatology and Jackson; the
provider of emergency treatment referenced in Walthour’s notice letter; or any other
medical provider who treated Walthour after the incident made the basis of this suit.

These deficiencies in Walthour’s authorization form materially interfered
with the purposes chapter 74 is intended to accomplish. See Marroquin, 339 S.W.3d
at 73 (chapter 74 notice and authorization form intended to “encourage negotiations
and settlement of disputes prior to suit, thereby reducing litigation costs”).
Walthour’s authorization form omitted information available only to Walthour,
namely, the health care providers that rendered emergency treatment for the injuries
forming the basis of her suit. This information was directly relevant to Advanced
Dermatology’s and Jackson’s pre-suit investigation and their assessment of
Walthour’s claim. See Davenport, 526 S.W.3d at 554 (authorization form that
omitted treating physicians “did no more to aid a pre-suit investigation than if it had
not disclosed any physicians”); Johnson, 501 S.W.3d at 251-52 (plaintiff’s failure to
timely identify certain providers “thwarted [the defendants’] ability to retrieve a
material number of . . . relevant medical provider’s records” and “interfered with the
pre-suit evaluation encouraged by the statute”). Omitting this information hampered
Advanced Dermatology’s and Jackson’s ability to negotiate and settle Walthour’s
claim. See Davenport, 526 S.W.3d at 554; Johnson, 501 S.W.3d at 251-52.

Walthour also impeded Advanced Dermatology’s and Jackson’s pre-suit
investigation ability by failing to (1) segregate her treating physicians into the
categories prescribed by section 74.052; and (2) designate excluded physicians.
Without this information, Advanced Dermatology and Jackson were unable to tailor
their investigation to only those providers relevant to Walthour’s claim, prolonging

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the time and expense necessary to evaluate Walthour’s suit. These failures frustrated
the purposes chapter 74 notice is intended to accomplish. See Marroquin, 339
S.W.3d at 73 (chapter 74 notice is intended to “reduc[e] litigation costs” and
“provide a method for quick, efficient settlement of claims”). Walthour’s notice and
authorization form therefore failed to toll the limitations period applicable to her
claim.

Walthour contends that the 75-day tolling period nonetheless applies to her
suit because her authorization form substantially complied with section 74.052’s
requirements. Walthour relies on Mock v. Presbyterian Hospital of Plano, 379
S.W.3d 391 (Tex. App.—Dallas 2012, pet. denied).

The plaintiffs in Mock sent notice of their claim to the defendants and
provided the required authorization form, but incorrectly completed one of the
authorization form’s blanks. 379 S.W.3d at 394. The plaintiffs correctly completed
the blank in four similar fields. Id. at 395 n.2. The Dallas Court of Appeals held
that the authorization form was effective to trigger the tolling provision despite the
plaintiffs’ error. Id. at 395.

The deficiencies in Walthour’s authorization form are more significant than
those at issue in Mock. Whereas the Mock plaintiffs incorrectly completed a single
blank, Walthour’s authorization form failed to (1) segregate her treating physicians
into the categories prescribed by section 74.052; (2) designate excluded physicians;
and (3) include providers that rendered emergency treatment for the injuries forming
the basis of her suit. Walthour misplaced her reliance on Mock.

We conclude that Walthour’s authorization form failed to advance chapter
74’s legislative purposes and did not toll the limitations period applicable to her
health care liability claim.

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II. Failure to Claim Notice Letters

Walthour asserts that “it is merely academic whether the notice letter
complied with the statute, substantially complied or did not comply because
Appellees’ failure or refusal to claim the mail on different occasions renders such
inquiry as moot.” Walthour does not cite any cases supporting her argument.

The applicable statute and case law interpreting it suggest that the deficiencies
in Walthour’s authorization form are not rendered moot by the failure to receive or
collect her mailings. See Tex. Civ. Prac. & Rem. Code Ann. § 74.051(c); College
Station Med. Ctr., LLC v. Kilaspa, 494 S.W.3d 307, 312 (Tex. App.—Waco 2015,
pet. denied).

Section 74.051(c) provides that “[n]otice given as provided in this chapter
shall toll the applicable statute of limitations” and that tolling commences “following
the giving of the notice.” Tex. Civ. Prac. & Rem. Code Ann. § 74.051(c) (emphasis
added). This statute conditions tolling on the plaintiff’s actions; it does not require
the plaintiff to ensure the defendant’s receipt of the notice to render it effective. See
id.

The interpretation of section 74.051(c) in Kilaspa, 494 S.W.3d 307, also
emphasizes the plaintiff’s actions. The defendant in Kilaspa asserted that the
plaintiff’s chapter 74 notice was ineffective to toll limitations because the defendant
had not received the notice letter. Id. at 309. The court rejected the defendant’s
argument and held that the statute did not require the plaintiff to ensure that “the
defendant actually claims the mail once it has been delivered.” Id. at 312.

Section 74.051(c) and Kilaspa condition tolling on actions taken by the
plaintiff, namely, providing notice in compliance with chapter 74. Walthour does

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 not cite any cases that would support shifting the tolling analysis to Advanced
Dermatology’s and Jackson’s receipt of her notice and authorization form. Because
of its deficiencies, Walthour’s authorization form failed to toll the limitations period
applicable to her claim.

III. Summary Judgment Evidence

Walthour contends that Advanced Dermatology and Jackson “did not meet
the burden of proof required for granting the summary judgment” because there was
no evidence to “establish the date [her] cause of action accrued.” Walthour did not
cite any authority supporting her evidentiary challenge.

The two-year limitations period for a health care liability claim commences
from (1) the occurrence of the breach or tort; (2) the last date of the relevant course
of treatment; or (3) the last date of the relevant hospitalization. Myles, 468 S.W.3d
at 208.

Assertions of fact in the live pleadings of a party are regarded as formal
judicial admissions. Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex.
1983); Beta Supply, Inc. v. G.E.A. Power Cooling Sys., Inc., 748 S.W.2d 541, 542
(Tex. App.—Houston [1st Dist.] 1988, writ denied). “Any fact admitted is
conclusively established in the case without the introduction of the pleadings or
presentation of other evidence.” Musick, 650 S.W.2d at 767.

Here, Walthour’s original petition states that she seeks redress for injuries
occurring during treatment that “began on or about February 2014 and continued
until July 2014.” This admission establishes that Walthour’s claim accrued July 31,
2014, at the latest. See Musick, 650 S.W.2d at 767; Beta Supply, Inc., 748 S.W.2d
at 542.

Because Walthour’s notice and authorization form did not toll the two-year

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statute of limitations applicable to her claim, Walthour had until July 31, 2016, at
the latest to timely file suit against Advanced Dermatology and Jackson. See Tex.
Civ. Prac. & Rem. Code Ann. § 74.251(a); Myles, 468 S.W.3d at 208. Walthour’s
suit, filed September 12, 2016, was outside of the limitations period.

CONCLUSION

We conclude that (1) Walthour’s pre-suit notice and authorization form did
not toll the two-year limitations period applicable to her health care liability claim;
(2) the failure to receive or claim Walthour’s mailings did not render the deficiencies
in her authorization form immaterial; and (3) Advanced Dermatology and Jackson
satisfied their summary judgment burden. We affirm the trial court’s April 3, 2017
final judgment.

/s/ William J. Boyce
Justice

Panel consists of Justices Boyce, Donovan, and Wise.

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