Polsky v. Bassett

LARRY MARK POLSKY, Appellant, v. DR. RICK BASSETT, Appellee.

NUMBER 13-18-00553-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

October 8, 2020

On appeal from the County Court at Law No. 4 of Cameron County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Tijerina

Memorandum Opinion by Justice Hinojosa

Appellant Larry Mark Polsky appeals the trial court's summary judgment dismissing his health care liability suit against appellee Rick W. Bassett, M.D. In one issue, Polsky argues that the trial court erred in granting Bassett's motion for summary judgment on the basis of limitations because the limitations period was tolled for seventy-five days pursuant to § 74.051(c) of the Texas Medical Liability Act (TMLA). See TEX. CIV. PRAC. & REM. CODE ANN. § 74.051(c). We affirm.

I. BACKGROUND

Polsky filed suit against Bassett on May 23, 2018, alleging that Bassett was negligent in performing a total left knee replacement surgery at Valley Baptist Medical Center in Harlingen, Texas (VBMC-Harlingen) on April 8, 2016. According to Polsky's petition, Bassett's negligence caused Polsky to be "pigeon toed." Polsky alleged that he visited a physician's assistant in Bassett's office on October 3, 2016 and reported that "his left foot [was] toeing inwards" and that he was experiencing pain when he tried to "walk it straight." Polsky alleged that a February 27, 2018 CT scan of his knee "demonstrate[d] a mechanical axis misalignment of greater than 5 degrees of varus." Polsky attached to his petition a March 21, 2018 notice of claim letter to Basset. The letter was accompanied by an authorization for the release of medical records.

Bassett filed an answer asserting the affirmative defense of limitations. He later filed a traditional motion for summary judgment on his limitations defense, in which he argued that the applicable two-year limitations period, which accrued on April 8, 2016, expired prior to Polsky's suit being filed. See id. § 74.251. Bassett further argued that the limitations period was not tolled for seventy-five days under the TMLA because Polsky did not provide proper pre-suit notice of his claim. See id. § 74.051. In that regard, Bassett maintained that the medical authorization accompanying Polsky's pre-suit notice did not provide for the release of records from either VBMC-Harlingen, where Polsky's surgery occurred; or VBMC-Brownsville, where the subsequent CT scan was performed. See id. §§ 74.051(a) ("The notice must be accompanied by the authorization form for release ofprotected health information as required under Section 74.052."), 74.052(c) (requiring, in part, that the authorization provide for the release of "[t]he health information and billing records in the custody of 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").

Polsky filed a response to Bassett's motion for summary judgment, arguing that he was not required to include VBMC-Harlingen or VBMC-Brownsville as health care providers because neither entity examined, evaluated, or treated Polsky in connection with the injury alleged in the notice letter. Specifically, Polsky maintained that he has not been seen by any health care provider "in connection with Polsky walking 'pigeon toed' with Polsky's left foot."

The trial court signed an order granting Bassett's motion for summary judgment and dismissing Polsky's suit. Polsky filed a motion for new trial, which was overruled by operation of law. Polsky now appeals.

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, 469S.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 moving for summary judgment on a limitations defense bears the burden of conclusively establishing the elements of that defense. Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830, 833 (Tex. 2018). This includes conclusively establishing when the cause of action accrued. Id. at 834. If a defendant establishes limitations as a matter of law, the burden of production then shifts to the non-movant 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).

"A genuine issue of material fact exists if more than a scintilla of evidence establishing the existence of the challenged element is produced." Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). "[M]ore than a scintilla of evidence exists ifthe evidence 'rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.'" Id. at 601 (quoting Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). But when the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, it is considered no evidence. Id.

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, ortreated [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 "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 also 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

Polsky does not dispute Bassett's contention that the limitations period accrued onApril 8, 2016, the date of the knee replacement surgery. Therefore, absent the application of the seventy-five-day tolling provision, Polsky's suit, which was filed on May 23, 2018, is untimely. Bassett's summary judgment motion was based on the medical authorization's omission of two health care providers—VBMC-Harlingen and VBMC-Brownsville—that examined, evaluated, or treated Polsky in connection with his claimed injuries See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(11), (12) (defining health care providers as including health care institutions such as hospitals). Polsky...