In Texas, health care liability claims must be brought “within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed.” TEX. CIV. PRAC. & REM. CODE ANN. § 74.251(a). A claimant must also provide the defendant with notice of a health care liability claim at least sixty days before suit is filed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.051(a). The notice must be accompanied by an “authorization form for release of protected health information as required” under § 74.052. The authorization form must list, among other things: (1) “the physicians or health care providers who have examined, evaluated, or treated [the claimant] in connection with the injuries alleged to have been sustained in connection with the claim asserted in the accompanying Notice of Health Care Claim[;]” and (2) the “physicians or health care providers who have examined, evaluated, or treated [the claimant] during a period commencing five years prior to the incident made the basis of the accompanying Notice of Health Care Claim.” § 74.052(c).
If a claimant provides the pre-suit notice and health information authorization form, the limitations period is tolled up “to and including a period of 75 days following the giving of the notice, and this tolling shall apply to all parties and potential parties.” § 74.051(c). The stated purpose of the pre-suit notice requirement, including the authorized release of health information, is to encourage negotiations and settlement of disputes prior to suit, thereby reducing litigation costs. By requiring a potential claimant to authorize the disclosure of otherwise privileged information sixty days before suit is filed, the legislature intended to provide an opportunity for health care providers to investigate claims and possibly settle those with merit at an early stage.
In the Texas medical malpractice case that the Court of Appeals Thirteenth District of Texas Corpus Christi – Edinburg (“Texas Appellate Court”) decided on August 26, 2021, the plaintiff filed his health care liability lawsuit outside of the two-year limitations period but within the seventy-five day tolling period afforded by § 74.051(c). Therefore, absent the application of tolling, the plaintiff’s lawsuit was barred by limitations. The plaintiff argued that he substantially complied with the pre-suit notice requirement by timely providing a pre-suit notice letter and a statutory authorization, even though he did not identify all of the required physicians or health care providers.
The Texas Appellate Court stated that a plaintiff does not substantially comply with the authorization requirements if the authorization form fails to list or provides an incomplete list of the health care providers that provided treatment in connection with the injuries alleged to have been sustained in connection with the health care liability claim. The Texas Appellate Court held in the case it was deciding that the plaintiff “failed to list any of the physicians or health care providers that treated Susie in the preceding five years and excluded at least one physician that provided treatment in connection to the health care liability claim. As a result, [the plaintiff] failed to substantially comply with the TMLA’s pre-suit notice requirement and tolling provision … Without the benefit of the seventy-five-day tolling provision, [the plaintiff’s] suit is barred by limitations … We conclude that appellants established their limitations defense as a matter of law.”
Source Bouchard v. Taylor, Number 13-19-00648-CV.
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