Texas legislature updated medical malpractice pre-suit notice requirements

 

This article was originally published in the September/October 2017 edition of "The Houston Lawyer" magazine

 
October 19, 2017

In the 2003 wave of tort reform, Texas Civil Practice & Remedies Code Chapter 74 came into being, codifying the laws governing health care liability claims, including medical malpractice cases.

One of the significant changes in Chapter 74 is the pre-suit notice procedure. While in many situations, the potential implications of noncompliance with these procedures are rather benign (i.e., a 60-day abatement of the lawsuit), in certain situations they can result in a summary judgment for the defendants based on the statute of limitations.

The predecessor statute, Article 4590i of the Texas Revised Civil Statutes, required claimants to send a written notice of claim letter to each potential defendant at least 60 days before filing a medical malpractice lawsuit. By properly serving the notice letter by certified mail return-receipt requested on any potential defendant, the statute of limitations is tolled for 75 days for all potential defendants.

Chapter 74 retained the 60-day notice requirement and 75-tolling provision, with a twist.

In order to meet the requirements of Chapter 74, a pre-suit written notice of claim must be accompanied by a statutorily-defined “Authorization Form for Release of Protected Health Information.” The authorization form requires, among other things, disclosure in separate lists of health care providers who saw the claimant for any reason during the five years preceding the alleged negligence, and health care providers who treated the claimant as a result of the alleged negligence.

At first glance, this seems like a straightforward, check-the-box exercise. It is more technical than that, though.

After the Supreme Court of Texas largely closed the door on the ubiquitous challenges to the sufficiency of Chapter 74-required expert reports, the defense bar shifted its focus to challenging the sufficiency of authorizations attached to notice of claim letters.

In the 2017 regular legislative session, an amendment to Chapter 74.052(c) quietly became law, modifying the text of the statutory authorization that must accompany pre-suit notice letters for health care liability claims. Because of the overwhelming majorities by which House Bill No. 2891 passed both houses, it was effective as soon as Gov. Greg Abbott signed the bill on June 7, 2017.

Some of the key changes include addition of required disclosure of the patient’s address, telephone number, email address, and place of birth, and deletion of the patient’s birthdate.

Notably, this statute states that the mandatory pre-suit medical authorization “shall be in the following form.” This is difference from other statutes that allow documents to be “substantially” in a certain form.  Therefore, it is reasonable to expect defense challenges to any medical malpractice lawsuit filed after June 7, 2017, which relies on the 75-day tolling period in order to be timely filed, when the pre-suit notice of claim letter was accompanied by the earlier version of the authorization.

Most lawyers who routinely represent plaintiffs in medical malpractice claims believe that the golden rule is to never rely on the 75-day tolling provision, to avoid this potential minefield. Then again, you should never say never, and ensure that any pre-suit notice of health care liability claim includes the correct version of the required authorization form, filled out perfectly and comprehensively by the plaintiff.

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Robert Painter is an attorney at Painter Law Firm PLLC, in Houston, Texas, where he represents medical malpractice plaintiffs. He is a past editor-in-chief of The Houston Lawyer magazine.

Robert Painter

Robert Painter is a medical malpractice lawyer at Painter Law Firm PLLC.

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