Gwendolyn Galloway, Mitchell Irwin, Clayton Irwin, Individually and as Representative of the Estate of Mary Ann Irwin v. Atrium Medical Center, L.P., Shahid Q. Mallick and Syed Zaidi

Affirmed and Opinion filed August 23, 2018.

In The

Fourteenth Court of Appeals

NO. 14-17-00265-CV

GWENDOLYN GALLOWAY, MITCHELL IRWIN, AND CLAYTON IRWIN,
INDIVIDUALLY AND AS REPRESENTATIVES OF THE ESTATE OF
MARY ANN IRWIN, DECEASED, Appellants
V.

ATRIUM MEDICAL CENTER, L.P., SHAHID Q. MALLICK, AND SYED
ZAIDI, Appellees

On Appeal from the 434th Judicial District Court
Fort Bend County, Texas
Trial Court Cause No. 14-DCV-212172

OPINION
Appellants Gwendolyn Galloway, Mitchell Irwin, and Clayton Irwin sued
appellees Atrium Medical Center, L.P., Shahid Q. Mallick, and Syed Zaidi asserting
healthcare liability claims arising from Mary Ann Irwin’s death. The trial court granted
appellees’ summary judgment motions and held that appellants’ claims were barred by
the applicable two-year statute of limitations. For the reasons below, we affirm.
 BACKGROUND

Mary Ann Irwin was a patient at Atrium Medical Center on November 16, 2011,
when she fell and suffered injuries. She died on January 6, 2012.

Appellants are Mary Ann Irwin’s children. They retained counsel to sue
appellees for claims arising from Mary Ann Irwin’s death. Before filing suit, appellants
mailed to each appellee the statutorily required notice and authorization form on
November 14, 2013. All three mailings contained the same notice letter and
authorization form and were attached as exhibits to appellees’ summary judgment
motions.

In relevant part, the mailed authorization form states as follows.

1. The health information in the custody of the following physicians or
health care providers who have examined, evaluated, or treated Mary
Ann Irwin in connection with the injuries alleged to have been
sustained in connection with the claim asserted in the accompanying
Notice of Health Care Claim. (Here list the name and current address
of all treating physicians or health care providers). This authorization
shall extend to any additional physicians or health care providers that
may in the future evaluate, examine, or treat Mary Ann Irwin for
injuries alleged in connection with the claim made the basis of the
attached Notice of Health Care Claim;
2. The health information in the custody of the following physicians or
health care providers who have examined, evaluated, or treated Mary
Ann Irwin 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.)

Appellants sued appellees on January 29, 2014. Each appellee filed an individual
motion for traditional summary judgment asserting that (1) appellants’ claims were
barred by the applicable two-year statute of limitations; and (2) the authorization form
mailed with appellants’ notice letter failed to list two categories of health care providers

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as required by statute and did not toll the limitations period. The trial court denied
appellees’ summary judgment motions.

Appellees filed a “Joint Motion for Reconsideration on Defendants’ Motions for
Summary Judgment” in June 2014, again asserting that appellants’ claims were barred
by the statute of limitations. The trial court denied appellees’ joint motion for
reconsideration in an order signed October 16, 2014.

Appellees filed a “Second Joint Motion for Reconsideration on Defendants’
Motions for Summary Judgment” in December 2016, asserting the same limitations
arguments. Appellees’ second joint motion for reconsideration cited two cases issued
after the trial court denied appellees’ first joint motion for reconsideration; appellees
asserted these cases supported their argument that appellants’ authorization form did
not toll the applicable limitations period. See Borowski v. Ayers, 524 S.W.3d 292, 303-
04 (Tex. App.—Waco 2016, pet. denied); Johnson v. PHCC-Westwood Rehab. &
Health Care Ctr., LLC, 501 S.W.3d 245, 251-52 (Tex. App.—Houston [1st Dist.] 2016,
no pet.).

The trial court granted appellees’ second joint motion for reconsideration in an
order signed March 10, 2017. Appellants timely appealed.

STANDARD OF REVIEW

We review de novo a trial court’s order granting a traditional summary judgment.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Mayer v.
Willowbrook Plaza Ltd. P’ship, 278 S.W.3d 901, 908 (Tex. App.—Houston [14th
Dist.] 2009, no pet.). 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).

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 The party moving for traditional summary judgment bears the burden of
establishing that no genuine issue of material fact exists and that it is entitled to
judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A party seeking summary
judgment on the affirmative defense of limitations must conclusively prove all essential
elements of its defense. Sharp v. Kroger Tex. L.P., 500 S.W.3d 117, 119 (Tex. App.—
Houston [14th Dist.] 2016, no pet.).

ANALYSIS

Appellants assert that the trial court erred in granting appellees’ motions for
summary judgment because (1) the authorization form mailed with appellants’ pre-suit
notice substantially complied with statutory requirements and tolled the applicable
statute of limitations; and (2) the trial court had no basis to retroactively apply the
additional cases cited in appellees’ second joint motion for reconsideration.

We address these contentions in turn.

I. Statute of Limitations

Appellants do not dispute that they filed suit against appellees more than two
years after their causes of action accrued. Appellants assert that the statute of
limitations applicable to their claims is tolled because the authorization form mailed to
appellees “substantially complied” with statutory requirements.

Health care liability claims are governed by a two-year statute of limitations.
Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a) (Vernon 2017). 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).

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 A plaintiff may toll the two-year limitations period for 75 days by mailing to the
defendant written notice of the plaintiff’s health care liability claim and an
authorization form for the release of protected health information. Tex. Civ. Prac. &
Rem. Code Ann. § 74.051(a), (c) (Vernon 2017); 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 pursuant to Chapter 74, 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).

When appellants mailed the notice and authorization form to appellees in
November 2013, the 2003 version of section 74.052 prescribed the authorization form’s
requirements. See Act of June 11, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex.
Gen. Laws 864, 867-68 (amended 2017) (current version at Tex. Civ. Prac. & Rem.
Code Ann. § 74.052).1 Section 74.052 provided that the required medical authorization
“shall be in the following form” and gave the text of the form with several blanks to be
filled in with information specific to the plaintiff’s claim. Id. Section 74.052 required
the plaintiff to provide the names and current addresses for two categories of health
care providers: those who (1) provided treatment in connection with the injuries
alleged to have been sustained in connection with the health care liability claim; and
(2) provided treatment to the allegedly injured patient during a period commencing five
years prior to the incident made the basis of the health care liability claim. 2 Id.

“The notice and authorization form encourage pre-suit investigation,
negotiation, and settlement of health care liability claims.” Johnson, 501 S.W.3d at

1
Throughout the opinion we refer to the statute as “section 74.052.”
2
The current version of section 74.052 imposes the same disclosure requirements with respect
to these two categories of health care providers. See Tex. Civ. Prac. & Rem. Code Ann. § 74.052
(Vernon Supp. 2017).

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250; see also Marroquin, 339 S.W.3d at 73. A medical authorization form that fails to
include the information described in section 74.052 does not toll the statute of
limitations when the missing information “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).

The statute of limitations is not tolled if the authorization form fails to list or
provides an incomplete list of the health care providers that provided treatment in
connection with the injuries alleged to have been sustained in connection with the
health care liability claim. See Johnson, 501 S.W.3d at 251-52; see also Broderick v.
Universal Health Servs., Inc., No. 05-16-01379-CV, 2018 WL 1835689, at *5-6 (Tex.
App.—Dallas Apr. 18, 2018, no pet.) (mem. op.); Walthour v. Advanced Dermatology,
No. 14-17-00332-CV, 2018 WL 1725904, at *3-4 (Tex. App.—Houston [14th Dist.]
Apr. 10, 2018, no pet.) (mem. op.).

Similarly, the statute of limitations is not tolled if the authorization form omits
the list of health care providers that provided treatment during a period commencing
five years prior to the incident made the basis of the health care liability claim. See
Borowski, 524 S.W.3d at 303-04; 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.).

Contrary to section 74.052’s directive, appellants’ authorization form did not list
the health care providers who (1) provided treatment to Mary Ann Irwin in connection
with the injuries alleged to have been sustained in connection with the health care
liability claim; and (2) provided treatment to Mary Ann Irwin during a period
commencing five years prior to the incident made the basis of the health care liability
claim. See Act of June 11, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen.

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Laws 864, 867-68 (amended 2017).

These defects frustrated the purpose behind section 74.052’s disclosure
requirements and hindered appellees’ ability to engage in pre-suit investigation,
negotiation, and settlement with respect to appellants’ claims. See Marroquin, 339
S.W.3d at 73; see also Johnson, 501 S.W.3d at 250. Because of these defects,
appellants’ notice letter and authorization form did not toll the applicable statute of
limitations. See Borowski, 524 S.W.3d at 303-04; Johnson, 501 S.W.3d at 251-52;
Myles, 468 S.W.3d at 210-11.

Appellants assert that “[t]here is no evidence that [appellees] were in any way
deprived of the opportunity to explore [Mary Ann Irwin’s] past medical history . . . for
the purposes of evaluating and potentially settling” appellants’ claims. A similar
argument was rejected in Myles, 468 S.W.3d at 210-11. See also Borowski, 524 S.W.3d
at 305-06 (citing Myles, the court rejected the plaintiffs’ argument that the defendants
“did not present any evidence that the [errors in the] authorization form actually
hindered their ability to obtain medical records or otherwise evaluate [the plaintiffs’]
claim”). Appellants do not cite any cases holding that the summary judgment movant
must show that deviation from section 74.052’s requirements hindered investigative
and settlement efforts. We decline to impose that requirement here.

Appellants also assert that they “substantially complied” with section 74.052’s
requirements and cite Mock v. Presbyterian Hospital of Plano, 379 S.W.3d 391 (Tex.
App.—Dallas 2012, pet. denied), and Butler v. Taylor, 981 S.W.2d 742 (Tex. App.—
Houston [1st Dist.] 1998, no pet.).

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. Mock, 379 S.W.3d at 394. The plaintiffs correctly completed the blank
in four similar fields on the authorization form. Id. at 395 n.2. The court held that,
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 “[a]lthough one blank was filled out incorrectly in what appears to have been an
inadvertent mistake,” the authorization form was effective to toll the statute of
limitations. Id. at 395.

The plaintiff in Butler sent notice of her claim by Express Mail instead of
certified mail as required by statute. Butler, 981 S.W.2d at 742-43. The court
concluded that the plaintiff “substantially complied with the statute” as necessary to
toll the limitations period. Id. at 744.

The deficiencies in appellants’ authorization form are more significant than
those at issue in Mock and Butler. The plaintiffs in Mock and Butler incorrectly filled
out a single blank and selected the wrong mailing service, respectively. Mock, 379
S.W.3d at 394-95; Butler, 981 S.W.2d at 742-43. Here, appellants failed to list two
categories of health care providers relevant to their health care liability claims.
Appellants misplaced their reliance on Mock and Butler.

We conclude that appellants’ authorization form did not toll the statute of
limitations applicable to appellants’ health care liability claims.

II. Retroactive Application of Certain Cases

In their “Second Joint Motion for Reconsideration on Defendants’ Motions for
Summary Judgment,” appellees cited Borowski and Johnson to support their argument
that the defects in appellants’ medical authorization form foreclosed tolling the statute
of limitations. See Borowski, 524 S.W.3d at 303-04; Johnson, 501 S.W.3d at 251-52.
Borowski and Johnson were issued after the trial court denied the appellees’ “First Joint
Motion for Reconsideration on Defendants’ Motions for Summary Judgment.”

Appellants assert that “[t]hese decisions, issued nearly three years after litigation
first commenced and over two years after the trial court had already denied Appellees’
efforts to dismiss [appellants’] claims should never have been applied retroactively.”

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To support this contention, appellants cite Carrollton-Farmers Branch Independent
School District v. Edgewood Independent School District, 826 S.W.2d 489 (Tex. 1992).

Judicial decisions generally apply retroactively. Engelman Irrigation Dist. v.
Shield Bros., Inc., 514 S.W.3d 746, 748 (Tex. 2017); Baker Hughes, Inc. v. Keco R. &
D., Inc., 12 S.W.3d 1, 4 (Tex. 1999). The supreme court in Carrollton-Farmers Branch
Independent School District discussed and applied the Chevron analysis to determine
whether its judicial decision would have only prospective application. Carrollton-
Farmers Branch Indep. Sch. Dist., 826 S.W.2d at 515-521 (applying Chevron Oil Co.
v. Huson, 404 U.S. 97, 105-09 (1971)). The Chevron analysis is a three-step process:

First, the decision to be applied nonretroactively must establish a new
principle of law, either by overruling clear past precedent on which
litigants may have relied, or by deciding an issue of first impression whose
resolution was not clearly foreshadowed.
Second, . . . [the court] must . . . weigh the merits and demerits in each
case by looking to the prior history of the rule in question, its purpose and
effect, and whether retrospective operation will further or retard its
operation.
Finally, [the court must] weig[h] the inequity imposed by retroactive
application, for where a decision of [the court] could produce substantial
inequitable results if applied retroactively, there is ample basis in our cases
for avoiding the injustice or hardship by a holding of nonretroactivity.
Id. at 518 (quoting Chevron Oil Co., 404 U.S. at 106-07).

We assume without deciding that the trial court relied on Borowski and Johnson
in granting appellees’ “Second Joint Motion for Reconsideration on Defendants’
Motions for Summary Judgment.” We conclude that Borowski and Johnson did not
“establish a new principle of law” as necessary to limit the decisions’ application under
Chevron.

When appellants mailed to appellees the notice and authorization form in
November 2013, at least three cases already had determined that failure to comply with
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section 74.052’s medical authorization form requirements foreclosed tolling the statute
of limitations. See Brannan v. Toland, No. 01-13-00051-CV, 2013 WL 4004472, at
*3 (Tex. App.—Houston [1st Dist.] Aug. 6, 2013, pet. denied) (mem. op.); Mitchell,
376 S.W.3d at 837; Nicholson, 2009 WL 3152111, at *5-6; see also Marroquin, 339
S.W.3d at 74 (“[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.”). Borowski and Johnson — which also conclude that
failure to comply with section 74.052’s requirements prevents tolling the limitations
period — did not establish a “new principle of law” as necessary to limit the decisions’
retroactive application. See Carrollton-Farmers Branch Indep. Sch. Dist., 826 S.W.2d
at 515-521; Borowski, 524 S.W.3d at 303-04; Johnson, 501 S.W.3d at 251-52.

We overrule appellants’ argument challenging the retroactive application of
Borowski and Johnson.

CONCLUSION

We affirm the trial court’s March 10, 2017 order granting appellees’ “Second
Joint Motion for Reconsideration on Defendants’ Motions for Summary Judgment.”

/s/ William J. Boyce
Justice

Panel consists of Justices Boyce, Jamison, and Brown.

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