Bouchard v. Taylor

DANIEL BOUCHARD, D.O. AND BAY AREA HEALTHCARE GROUP, LTD. D/B/A CORPUS CHRISTI MEDICAL CENTER, Appellants, v. JOSEPH TAYLOR, INDIVIDUALLY AND ON BEHALF OF SUSIE TAYLOR, Appellee.

No. 13-19-00648-CV

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 26, 2021

On appeal from the 94th District Court of Nueces County, Texas.

Before Justices Longoria, Hinojosa, and Tijerina

MEMORANDUM OPINION

LETICIA HINOJOSA JUSTICE.

In this permissive appeal, ^1[] appellants Daniel Bouchard, D.O and Bay Area Healthcare Group, Ltd. d/b/a Corpus Christi Medical Center (CCMC) appeal the trial court's denial of their motion for summary judgment, which sought to dismiss the health care liability suit filed by appellee Joseph Taylor, individually and on behalf of Susie Taylor. In two issues, which we treat as one, appellants argue that Taylor's suit is barred by the applicable two-year statute of limitations found in the Texas Medical Liability Act (TMLA). See TEX. CIV. PRAC. &REM. CODE ANN § 74.251(a). We reverse and render.

I. Background

Taylor filed suit against appellants^[2] on February 21, 2019, alleging that appellants were negligent in failing to diagnose Susie as having had a stroke^[3] when she presented to CCMC on December 10, 2016, complaining of a headache, dizziness, pain in the right side of her face, and blurry vision. Taylor alleges that appellants misdiagnosed Susie as having Bell's palsy.^[4] Susie reported back to CCMC on December 24, 2016, at which time a neurologist diagnosed her as having experienced a stroke. The next day, Susie was airlifted to Memorial Herman Hospital in Houston, Texas, where she received further treatment. Taylor alleges that appellants' negligence on both the December 10 and 24 visits caused Susie to suffer long-lasting brain injuries that could have been mitigated or prevented by a timely diagnosis and treatment.

Appellants separately answered, and each pleaded limitations as an affirmative defense. Appellants later jointly moved for summary judgment on their limitations defense. In their motion, appellants argued that the applicable two-year limitations period expired before Taylor filed suit on February 21, 2019. See id. § 74.251. Appellants maintained that the limitations period accrued on December 10, 2016, for Bouchard when he examined Susie and on December 25, 2016, for CCMC when Susie was discharged from that facility to another hospital.

Appellants further argued that Taylor could not benefit from the seventy-five day tolling period in the TMLA because Taylor did not provide proper pre-suit notice of the claim. See id. § 74.051. In that regard, appellants maintained that the medical authorization accompanying Taylor's notice failed to identify any health care providers who treated Susie in the five years preceding the incident forming the basis of the claim. See id. §§ 74.051(a), 74.052(c). Appellants submitted summary judgment evidence showing that Susie had visited her primary care physician, was taking several medications, and had a surgical procedure within the year before her visit to CCMC. Appellants also asserted that Taylor failed to identify all of the providers who saw Susie in connection with her alleged injuries. See id. § 75.052(c). Appellants specifically noted that Taylor failed to list the surgeon who operated on Susie at Memorial Hermann Hospital.

Taylor filed a response to appellants' motion for summary judgment, arguing that the statute of limitations was tolled because he substantially complied with the pre-suit notice requirement. Following a hearing, the trial court signed an order denying appellants' motion for summary judgment. We have granted appellants' petition for a permissive appeal. See id. § 51.014(d); TEX. R. APP. P. 28.3.

II. Standard of Review

We review a trial court's summary judgment de novo. Katy Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015); City of San Antonio v. Greater San Antonio Builders Ass'n, 419 S.W.3d 597, 600 (Tex. App.-San Antonio 2013, pet. denied). We take all the evidence favorable to the nonmovant as true, and we indulge every reasonable inference and resolve any doubts in favor of the nonmovant. BCCA Appeal Grp., Inc. v. City of Houston, 496 S.W.3d 1, 6 (Tex. 2016); Katy Venture, 469 S.W.3d at 163; Greater San Antonio, 419 S.W.3d at 600.

Traditional summary judgment is proper only when the movant establishes there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); BCCA, 496 S.W.3d at 6; Greater San Antonio, 419 S.W.3d at 600-01. Limitations is an affirmative defense and may serve as the basis for the trial court's summary judgment. Roark v. Stallworth Oil &Gas, Inc., 813 S.W.2d 492, 494 (Tex. 1991); Slagle v. Prickett, 345 S.W.3d 693, 697 (Tex. App.-El Paso 2011, no pet.). A "defendant who moves for summary judgment based on limitations must conclusively establish the elements of that defense" and "must also conclusively negate application of the discovery rule and any tolling doctrines pleaded as an exception to limitations." Erikson v. Renda, 590 S.W.3d 557, 563 (Tex. 2019).

If a defendant establishes limitations as a matter of law, the burden of production then shifts to the nonmovant to raise a genuine issue of material fact. Valley Forge Motor Co. v. Sifuentes, 595 S.W.3d 871, 877 (Tex. App.-El Paso 2020, no pet.); see Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). If the non-movant fails to do so, the defendant is entitled to summary judgment. See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008). On the other hand, if the movant fails to satisfy its initial burden, then the burden does not shift, and the nonmovant need not present any evidence to avoid summary judgment. Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014).

III. Discussion

A. Applicable Law

Health care liability claims in Texas are governed by the TMLA. See TEX. CIV. PRAC. &REM. CODE ANN. §§ 74.001-.507; Davenport v. Adu-Lartey, 526 S.W.3d 544, 550 (Tex. App.-Houston [1st Dist.] 2017, pet. denied). The purpose of the statute is to eliminate frivolous healthcare-liability claims, while allowing potentially meritorious claims to proceed. Hebner v. Reddy, 498 S.W.3d 37, 39 (Tex. 2016); Davenport, 526 S.W.3d at 550.

Health care liability claims must be brought "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." TEX. CIV. PRAC. &REM. CODE ANN. § 74.251(a); Davenport, 526 S.W.3d at 551. A claimant must also provide the defendant with notice of a health care liability claim at least sixty days before suit is filed. See TEX. CIV. PRAC. &REM. CODE ANN. § 74.051(a). The notice must be accompanied by an "authorization form for release of protected health information as required" under § 74.052. Id. The authorization form must list, among other things: (1) "the physicians or health care providers who have examined, evaluated, or treated [the claimant] in connection with the injuries alleged to have been sustained in connection with the claim asserted in the accompanying Notice of Health Care Claim[;]" and (2) the "physicians or health care providers who have examined, evaluated, or treated [the claimant] during a period commencing five years prior to the incident made the basis of the accompanying Notice of Health Care Claim." Id. § 74.052(c).

If a claimant provides the pre-suit notice and health information authorization form, the limitations period is tolled up "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. § 74.051(c); see Carreras 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 purpose of the pre-suit notice requirement, including the authorized release of health information, "is to encourage negotiations and settlement of disputes prior to suit, thereby reducing litigation costs." Carreras, 339 S.W.3d at 73; see Mitchell v. Methodist Hosp., 376 S.W.3d 833, 836 (Tex. App.-Houston [1st Dist.] 2012, pet. denied). By requiring a potential claimant to authorize the disclosure of otherwise privileged information sixty days before suit is filed, the legislature intended to provide an opportunity for health care providers to investigate claims and possibly settle those with merit at an early stage. Carreras, 339 S.W.3d at 73; Garcia v. Gomez, 319 S.W.3d 638, 643 (Tex. 2010).

B. Analysis

The parties agree that Taylor's suit was filed outside of the two-year limitations period but within the seventy-five day tolling period afforded by § 74.051(c). Therefore, absent the application of tolling, Taylor's suit is barred by limitations. Taylor argues on appeal that he substantially complied with the pre-suit notice requirement by timely providing a pre-suit notice letter and a statutory authorization, even though he did not identify all of the required physicians or health care providers.

"Substantial compliance" with the TMLA's pre-suit notice and authorization requirements will in some instances trigger the tolling provision. See, e.g., Davenport, 526 S.W.3d at 552-53; Mock v. Presbyterian Hosp. of Plano, 379 S.W.3d 391 (Tex. App.- Dallas 2012, pet. denied). However, a plaintiff does not substantially comply with the authorization requirements "if the authorization form fails to list or provides an incomplete list of the health care...