Texas Appellate Court Holds Failure To File Proper Medical Authorization Wipes Out Medical Malpractice Verdict

Court Holds Failure To File Proper Authorization Wipes Out Malpractice Verdict: In its Memorandum Opinion filed on March 17, 2022, the Court of Appeals Ninth District of Texas at Beaumont (“Texas Appellate Court”) held in a Texas medical malpractice case: “We conclude Hampton’s attorney sent Dr. Thome a noncompliant authorization, which due to its defects never triggered the tolling exception available to other health care liability claimants who comply with the statutory requirements available in the Act. Hampton then failed to sue Dr. Thome within two years of the date her cause of action accrued. We hold the record conclusively shows that Hampton’s suit is barred by the two-year statute of limitations and that tolling does not apply.”

Texas Medical Liability Act

§ 74.051(a), (c) of the Texas Medical Liability Act provides that when a person or the person’s agent, who is asserting a health-care liability claim, gives the physician or health care provider written notice of the health-care liability claim 60 days prior to suit with an authorization to release the patient’s records relevant to the suit in the form prescribed by the Legislature, the pre-suit notice tolls “the applicable statute of limitations to and including a period of 75 days following the giving of the notice.”

Chapter 74 states: “The notice must be accompanied by the authorization for release of protected health information as required under Section 74.052.” § 74.052(c) provides “The medical authorization required by this section shall be in the following form . . . .”. Section 74.052 states, in precise terms, the information that health care claimants are to include in the authorization form sent with the required pre-suit notice in cases involving the cases governed by the special procedures spelled out in the Act.

In the case it was deciding, the plaintiff’s Texas medical malpractice lawyer sent Dr. Thome a certified letter in November 2015, notifying him that the plaintiff intended to sue him, claiming he had violated the standards of care applicable to physicians responsible for discharging patients from hospitals in deciding the plaintiff could be discharged and then sending her home. With the letter, the attorney sent Dr. Thome a form authorization, which allowed Dr. Thome to obtain records from two health care providers that the plaintiff’s attorney apparently thought were relevant to the plaintiff’s health care liability claim.

By March 28, 2016 (the two-year anniversary from the plaintiff’s March 28, 2014 release from the hospital), the plaintiff did not file her lawsuit. But just two months later, the plaintiff sued Dr. Thome in a district court.

The Texas Appellate Court stated: “The purpose of pre-suit notices in health care cases “is to encourage negotiations and settlement of disputes prior to suit, thereby reducing litigation costs.” To the extent these disclosures are mandated by section 74.052, the notice allows physicians and other health care providers (to the limited extent the disclosures are mandated by the statute) to explore the health care liability claimant’s past medical history, which includes a release authorizing the health care provider who is the target of a potential suit to conduct an investigation into the claimant’s preexisting medical conditions so that they may evaluate the potential, if any, of the claim. Here, the trial court imposed a prejudice requirement on Dr. Thome, but that is a requirement that we do not find in the Act as to tolling. Simply put, courts may not ignore a statute and make policy decisions about matters when the policy set by the court contradicts the policies hammered out by the Legislature when voting to pass a statute.”

Source Thome v. Hampton, No. 09-20-00022-CV.

If you or a loved one have suffered serious harm as a result of medical negligence in Texas or in another U.S. state, you should promptly find a Texas medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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This entry was posted on Friday, August 5th, 2022 at 5:23 am. Both comments and pings are currently closed.


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