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.

EVIDENCE OF ACTUAL MONETARY LOSS IS REQUIRED WHEN CALCULATING THE EXEMPLARY DAMAGES CAP

The Goodyear Tire & Rubber Co. v. Rogers
Dallas Court of Appeals, No. 05-15-00001-CV (August 31, 2017)
Justices Lang, Brown (Dissent, linked here), and Whitehill (Opinion, linked here)

Debrán L. O’Neil

A divided Dallas Court of Appeals has ruled that a jury’s finding on “pecuniary loss” must be supported by evidence of actual monetary or financial losses in order for that finding to be used as “economic damages” for purposes of calculating the exemplary damages cap in Texas Civil Practice & Remedies Code § 41.008(b)(1).

WAS DISCIPLINARY ACTION A POSSIBILITY? A CLOSE REVIEW IS REQUIRED FOR EXCEPTIONS TO THE MEDICAL PEER REVIEW COMMITTEE PRIVILEGE.

In re Christus Santa Rosa Health System
Supreme Court of Texas, No. 14-1077 (May 27, 2016)
Justice Green (Opinion)

Debrán O’Neil

The Texas Supreme Court granted mandamus relief to Christus Santa Rosa Health System on the applicability of the medical peer-review committee privilege and ordered the trial court to perform an in camera inspection to determine whether an exception to the privilege applied. Section 160.007 of the Texas Occupations Code makes medical peer-review proceedings and records confidential in order to promote candid and open communications regarding a physician’s competency and improve the standard of medical care provided to patients. The Court held the trial court abused its discretion when it ordered Christus to produce the records without first adequately reviewing the documents in camera.

The parties, Christus and Dr. Franklin, did not dispute that the medical peer-review committee privilege applied to the records sought, but disagreed about whether disclosure was required under an exception to that privilege. Section 160.007(d) requires a written copy of the committee’s recommendation, final decision, and basis for the decision be disclosed to the physician if the committee “takes action that could result in censure, suspension, restriction, limitation, revocation, or denial” of the physician’s privileges at the hospital. The Court clarified the exception and held that, for the exception to apply, the peer-review committee must do more than simply convene to review the physician’s actions—they must take some action that could have resulted in discipline. Otherwise, the “take action” language in § 160.007(d) would be rendered meaningless. Disclosure would be required every time the committee conducted a review, regardless of the outcome, which undermines the very purpose of the medical peer-review committee privilege—confidentiality to encourage open discussion of a physician’s competency.

Based on the record before it, the Court could not determine whether Christus’s medical peer-review committee took action that could have resulted in some sort of discipline against Dr. Franklin. So the Court ordered the trial court to conduct an in camera review of the documents and the evidence to determine if the exception applied.

SUPREME COURT CLARIFIES CAUSATION STANDARD IN MESOTHELIOMA CASES

Bostic v. Georgia-Pacific Corp.

Supreme Court of Texas, No. 10-0775 (July 11, 2014)

Justice Willett (Opinion), Justice Guzman (Concurrence), Justice Lehrmann (Dissent)

Debrán O’Neil

In a much-anticipated decision, a divided Supreme Court of Texas clarified the causation standard in asbestos-related mesothelioma cases. The Supreme Court held, among other things, that the Borg-Warner Corp. v. Flores causation standard for asbestosis cases also applies in cases based on mesothelioma.