Perfection Not Required—An Incomplete Medical Authorization May Still Toll Limitations for Healthcare Liability Claims

Gary Lew Maypole, Sr. v. Acadian Ambulance Service, Inc.

Dallas Court of Appeals, No. 05-18-00539-CV (June 10, 2022)

En Banc Opinion by Justice Molberg (linked here)

Concurrence by Justice Schenck (linked here)

Debrán O’Neil

After a motion for reconsideration en banc, the Dallas Court of Appeals issued a new opinion that allows the statute of limitations for healthcare liability claims to be tolled when the plaintiff serves a medical authorization form that substantially—even if not fully—complies with statutory requirements. Under the Texas Medical Liability Act, Chapter 74 of the Texas Civil Practice and Remedies Code, the statute of limitations is tolled for 75 days if the plaintiff provides defendants with a pre-suit notice of claim accompanied by an authorization for the release of the injured person’s healthcare information. The statute sets forth the form of the required authorization. As the Fifth Court of Appeals explained, the legislature’s purpose in enacting these pre-suit notice requirements is to reduce the frequency and severity of healthcare liability claims, but in a manner that does not unduly restrict a claimant’s rights. With this purpose in mind, the Court concluded that Plaintiff’s failure to list certain healthcare providers on the medical authorization form did not preclude the tolling of limitations under section 74.051(a) of the TMLA.

Gary Maypole, II suffered an anoxic brain injury while being transported by ambulance between hospitals. He later died. Gary’s father and minor children filed suit alleging medical malpractice against the critical-care transport companies. Plaintiff served Defendants with the required pre-suit notice letter and a medical records authorization, but Plaintiff did not list the names of the physicians and healthcare providers who treated Gary in the five years prior to the incident at issue. Plaintiff also did not list “none” in the section for physicians or healthcare providers excluded from the authorization. Defendants argued the medical authorization was fatally flawed, the seventy-five-day tolling period did not apply, and summary judgment should be granted because Plaintiff filed suit more than two years after the alleged malpractice. The en banc Court of Appeals disagreed for many reasons.

The Court first concluded that the statute does not require all healthcare providers to be identified for the tolling provision to apply. The Court relied heavily on the fact that Defendants made no attempt to obtain Maypole’s records from the providers listed on the authorization and were not harmed by the lack of information. It rejected several of Defendants’ technical arguments and “the notion that a ‘virtually perfect’ authorization” is required for tolling, holding that the statute was not intended “to be a game of legal ‘gotcha’” to deny access to the judicial system. The record here distinguished this case from others in which the plaintiffs did not provide authorizations with their notices. Here, the Plaintiff listed the two relevant hospitals as providers, and Defendants already had medical records in their possession that listed Maypole’s treating physician, list of prior health issues, and list of medications. The Court concluded the authorization was sufficient to toll limitations, and therefore, reversed the summary judgment and remanded to the trial court for further proceedings. The Court also noted that abatement, not dismissal, is the appropriate remedy when a defendant demonstrates that an incomplete authorization hinders its ability to investigate, evaluate, and negotiate prior to the parties joining issue in a lawsuit.

Justice Schenck concurred, but would have held the statute is procedural and when notice (whether defective or not) is given, the limitations period is tolled for 75 days and fixed. Any defects in the authorization can be cured by various forms of legal relief, short of dismissal of the plaintiff’s claims on limitations grounds, based on the court’s discretionary assessment of the form’s deficiency.