To allow a defendant physician or health care provider in a health care liability case to obtain medical information from health care providers, the Texas Medical Liability Act (“TMLA”) requires plaintiffs to accompany their mandatory pre-suit notice of their claim with an authorization for the release of the claimant’s medical records to each defendant against whom a claim is made. TEX. CIV. PRAC. & REM. CODE § 74.051. If the plaintiff provides both the notice and medical authorization under section 74.051, the two-year limitations period is tolled for a period of seventy-five days.
The ambulance company argued that the plaintiffs’ medical authorization was defective because it failed to list any providers who treated the decedent in the five years preceding the incident made the basis of the accompanying Notice of Health Care Claim, and it failed to identify the physicians to whom the authorization did not apply. The trial court agreed and granted summary judgment to the defendant ambulance company.
The Texas Appellate Court stated: “Acadian claims that tolling of limitations is unavailable if any of Gary’s healthcare providers for the previous five years were omitted from appellants’ medical authorization. However, Chapter 74 does not include any such mandate. Nowhere does Chapter 74 require a plaintiff to identify “all” healthcare providers, with no omissions whatsoever, for the tolling provision to apply … Acadian claims that tolling of limitations is unavailable if any of Gary’s healthcare providers for the previous five years were omitted from appellants’ medical authorization. However, Chapter 74 does not include any such mandate. Nowhere does Chapter 74 require a plaintiff to identify “all” healthcare providers, with no omissions whatsoever, for the tolling provision to apply.”
“Section 74.052 does not require the authorization to list “all” of the claimant’s health care providers, whether current or for the preceding five years. This Court must take the statute as we find it and presume the legislature included the words it intended to include and omitted words—in this case “all” or “every”—it intended to omit. Indeed, it would be absurd and unreasonable to expect a plaintiff to know or remember—whether the patient was conscious, unconscious, medicated, or otherwise incapacitated (and in this case, deceased)—the identity of every person and entity that provided health care of any kind for the preceding five years, such as, for example, hospital technicians, nurse managers, nurse practitioners, specialty nurses, registered nurses, enrolled nurses, nurses’ aides and assistants, nurse and other medical consultants, interns, residents, medical students and student doctors, fellows, on-call doctors, attending physicians, specialty doctors, dental hygienists, dietitians, occupational and other therapists, pharmacists, physiotherapists, clinical assistants, patient services assistants, and volunteers.”
“We may not rewrite text enacted by the legislature. Therefore, we decline to require appellants’ section 74.052 medical authorization to include “all” of Gary’s physicians and health care providers when the statute includes no such requirement.”
“The summary judgment record supports appellants’ argument that any omission did not hinder Acadian’s attempt to evaluate and resolve appellants’ claims because Acadian made no attempt whatsoever to investigate and evaluate Gary’s health care records. Seemingly, Acadian did not want Gary’s medical records for the purpose of pre-suit investigation, negotiation, and settlement, if it wanted them at all.”
The Texas Appellate Court held: “On this record, we conclude the medical authorization attached to the Maypoles’ pre-suit notice tolled the limitations period under section 74.051(c) … any alleged omissions in appellants’ medical authorization did not seriously or significantly hinder Acadian’s ability to accomplish the purpose of section 74.052 of the TMLA, namely to investigate appellants’ claims and possibly resolve them.”
The Texas Appellate Court further stated, “[W]e conclude the case should have been abated to allow an opportunity to cure any deficiency in the authorization. Abatement in this case would comport with precedent and meet the “[c]onstitutional imperatives [that] favor the determination of cases on their merits rather than on harmless procedural defaults.””
Source Maypole v. Acadian Ambulance Service, Inc., No. 05-18-00539-CV.
If you or a family member suffered serious injury or other harm that may be due to medical malpractice 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 family member in a medical malpractice case, if appropriate.
Visit our website or call us toll-free in the United States at 800-295-3959 to find malpractice lawyers in your state who may assist you.
Turn to us when you don’t know where to turn.