The Health Care Liability Claim Pre-suit Notice and Authorization Trap
Published in the July/August 2018 edition of "The Houston Lawyer" magazine
This article was originally published in the July/August edition of The Houston Lawyer magazine.
Texas Civil & Practice Remedies Code, Chapter 74, governs health care liability claims. Many attorneys consider health care liability claims to be synonymous with medical malpractice cases, but the statutory definition is more expansive, and navigating when and how it applies can cause some pitfalls.
Chapter 74 almost always applies
A health care liability claim includes any cause of action against a “health care provider or physician for treatment, lack of treatment, or other claim to departure from accepted standards of medical care, or healthcare, or safety or professional or administrative services directly related to healthcare, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.”
Quite a few attorneys call me with the question of whether their client’s claim against a health care provider falls under the requirements of Chapter 74. With one exception, I tell them to follow the procedural requirements, rather than risk an appellate challenge, with one exception. My one exception – involving cows and car wrecks – is also a case illustration of how far some health care defendants have gone to try to stretch the applicability of Chapter 74.
It all started with a car wreck in the Dallas area. Cattle strayed onto a road. A pickup truck traveling on the road hit at least one of the cattle and rolled over eight times. The passenger in the pickup truck was injured in the accident and sued the owner of the cattle and property from which the cattle had escaped. The suit was based on negligence and negligence per se.
The property owner, a physician, filed a motion to dismiss under Chapter 74 and sought attorney’s fees. The plaintiff had not served an expert report as required by the Chapter. The defendant claimed he should benefit from Chapter 74 simply because he was a physician. The trial court denied the motion to dismiss and the physician appealed. The Dallas Court of Appeals dismissed the appeal and awarded the trial court plaintiff sanctions because the physician pursued a frivolous appeal.
If you are considering a case with facts as outlandish as cows and a car wreck, then it probably is not a health care liability claim. In most other circumstances, however, I think it is better to be safe than sorry.
Chapter 74 has a tolling mirage
The first challenge of Chapter 74 toll road relates to the notice of claim and limitations.
Health care liability claims have a two-year statute of limitations. If a health care liability plaintiff files suit within the two-year limitations period, then the perils of the notice of claims process can be easily avoided. This, by far, is the best practice.
Problems arise, though, from the inviting language of Section 74.051(c) that tempts plaintiffs and their lawyers with a tolling provision: “Notice given as provided in this chapter shall toll the applicable statute of limitations to and including a period of 75 days following the giving of notice, and this tolling shall apply to all parties and potential parties.” Beware, though, because the Chapter 74 tolling provision is not straightforward.
Notice letter plus not-just-any authorization
The statutory 75-day tolling provision is triggered as “to all parties and potential parties” when a health care liability claimant gives written notice of the claim by certified mail, return receipt requested, to each physician or health care provider who is a potential defendant.
Until 2016, defendants routinely challenged tolling applicability when a health care liability plaintiff served proper pre-suit notice on one, but not all, defendants. Fortunately, it is now settled that that proper pre-suit notice to one health care liability defendant tolls the statute of limitations as to all defendants.
This leads to the next battleground, which is what it takes to provide proper notice. The most recent courthouse skirmishes have focused on the authorization form for release of protected health information contained in Section 74.052, which “must” accompany the written pre-suit notice.
In statutory construction, the word “must” creates or recognizes a condition precedent and creates a duty or obligation. Therefore, if the statutory authorization does not accompany the notice, then tolling of the statute limitations may not be utilized.
House Bill 2891 re-worked the statutory authorization form, which became effective on June 9, 2017. The statute requires that a notice letter “must be accompanied by a medical authorization in the form specified by this section.”
Note the lack of customary wiggle room in the language of Section 74.052. Other laws, such as the one authorizing unsworn declarations, allows the use of language that is “in substantially the following form.”
For Chapter 74 authorizations, it is not enough to be substantially compliant with the statutory form. The Waco court of appeals described it like this, “‘substantial compliance’ does not permit a party to ignore statutory requirements.”
Unfortunately, the new Chapter 74 form has some practical problems. It contains a blank for the patient’s place of birth, which no healthcare provider ever needs. Yet, it omits blanks for the patient’s Social Security number and date of birth, both of which are usually required for a release of records.
Regardless of these issues, the only safe harbor is to serve an authorization form that tracks the statutory language verbatim.
Now that we have settled what the Chapter 74 records release or authorization of protected health information should look like, we can move on to what it must contain.
The statute requires the health care liability plaintiff to provide two separate listings of names and addresses of physicians and healthcare providers on the authorization form.
The first list is for those physicians and healthcare providers who examined, evaluated, or treated the patient in connection with the alleged injuries that are the subject of the claim. The second list is for those who examined, evaluated, or treated the patient during the five years prior to the incident made the basis of the notice.
A statutory authorization form that provides only a portion of the required health care information does not toll the statute of limitations. The First Court of Appeals found a Chapter 74 authorization insufficient when it omitted prior treaters and numerous persons and entities involved in the surgery at issue and subsequent care. The same court ruled in a separate opinion that the plaintiff’s service of a “medical authorization with the information she had available at the time” was insufficient because it did not identify all prior and subsequent treaters.
A health care liability plaintiff whose statutory authorization omits any of the required information from the two required lists of physicians and healthcare providers faces the substantial risk that the trial and appellate courts will find that the notice and authorization form are together insufficient to toll the limitations period.
Based on the growing line of appellate opinions addressing the insufficiency of Chapter 74 authorizations, prudent plaintiffs’ attorneys will counsel their medical malpractice clients both orally and in writing that the statutory authorization is not a pro forma form.
What level of authorization detail is enough?
The legislature created the health care liability claim pre-notice and authorization requirements with the stated intent of encouraging pre-suit negotiations and avoiding unnecessary litigation. Numerous appellate courts have provided this rationale: “[t]he notice requirement’s purpose of obtaining information is not fulfilled if [the defendant] is deprived of the opportunity to explore [the plaintiff’s] past medical history, including these preexisting conditions, for purposes of evaluating (and potentially settling) his claim.”
I have anecdotally heard of some health care liability defendants taking the position that the statutory authorization must separately list every physician who saw the patient during relevant hospitalizations, even if they never saw the patient outside the hospital. This is an extreme position that makes little sense under existing law.
A more reasonable approach, which also satisfies the underlying public policy goals of the statute, is to list separately every physician or health care provider who saw the patient outside a hospital setting, in addition to each hospital where the patient was treated during either relevant time period. This type of disclosure on the authorization form affords potential defendants the opportunity to obtain and review all relevant medical records during the pre-suit notice period.
The bottom line on Chapter 74
If you want to represent a plaintiff in a health care liability or medical malpractice matter, work up the case quickly and do everything reasonably possible to file a lawsuit within the two-year statute of limitations.
When faced with unavoidable facts that require reliance on the Chapter 74 tolling provision, start by using the exact medical records release authorization contained in Section 74.052. Counsel your client in writing on the importance of complete disclosure and your reliance on them for physician and healthcare provider information. Finally, make sure to send your notice letter and authorization form to all potential defendants by certified mail, return receipt requested before the two-year limitations period expires.
Robert Painter is an attorney at Painter Law Firm PLLC, where he represents plaintiffs in medical malpractice lawsuits. He is a former editor-in-chief of The Houston Lawyer.
 Archer v. Tunnell, No. 05-15-00459-CV (Tex. App.—Dallas Feb. 9, 2016, no pet.) (not designated for publication).
 See id. at § 74.251(a).
 See id. at § 74.251(c).
 Id. at § 74.051(a).
 See Kovaly v. Kuruvanka, 497 S.W.3d 539,550 (Tex. App.—Houston [1st Dist.], pet. denied).
 Tex. Govt. Code § 311.016(3).
 Carreras v. Marroquin, 339 S.W.3d 68, 71 (Tex. 2011).
 Tex. Civ. Prac. & Rem. Code § 132.001.
 Borowski v. Ayers, 524 S.W.3d 292, 305 (Tex. App.—Waco, pet. denied).
 Davenport v. Adu-Lartey, 526 S.W.3d 544, 554 (Tex. App.—Houston [1st Dist.] 2017, pet. denied).
 Johnson v. PHCC-Westwood Rehabilitation & Health Ctr., LLC, 501 S.W.3d 245, 251 (Tex. App.—Houston 1st Dist.] 2016, no pet.).
 Mitchell v. Methodist Hospital, 376 S.W.3d 833, 838 (Tex. App.—Houston [1st Dist.], 2012, pet. denied).
Robert Painter is a medical malpractice lawyer at Painter Law Firm PLLC.
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