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Borowski v. Ayers

Court of Appeals of Texas, Tenth District, Waco

December 5, 2013

ADAM M. BOROWSKI, M.D., BRIAN BULL, M.D. AND HILLCREST FAMILY HEALTH CENTER, Appellants
v.
KAREN AYERS, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF DARYL LYNN AYERS, DECEASED, AND ETHAN AYERS, Appellees

From the 414th District Court, McLennan County, Texas. Trial Court No. 2012-3325-5.

For Appellant/Relator: Matthew C. Witt, Tasha Tedrow Roberts, Witt McGregor & Bourland, PLLC, Waco, TX; Russell G. Thornton, Stan A. Thiebaud, Stinnett Thiebaud & Remington, LLP, Georgetown, TX.

For Appellees/Respondents: M. Raymond Hatcher, Sloan Bagley Hatcher & Perry Law Firm, Longview, TX; F. Leighton Durham, Kelly Durham & Pittard, LLP, Dallas, TX.

Before Chief Justice Gray, Justice Davis, and Justice Scoggins.

OPINION

REX D. DAVIS, Justice

Page 345

On September 4, 2012, Appellees Karen Ayers, individually and as representative of the estate of Daryl Lynn Ayers, deceased, and Ethan Ayers filed a healthcare liability suit against Appellants Adam M. Borowski, M.D., Brian Bull, M.D., Hillcrest Family Health Center, and several other defendants. The Ayerses claimed that Daryl died because Dr. Borowski, Dr. Bull, Hillcrest, and the other defendants failed to recognize and treat an aortic dissection between July 24 and July 26, 2010.

Dr. Borowski filed a traditional motion for summary judgment, contending that the Ayerses' claims are barred by the statute of limitations. Dr. Borowski argued as follows: On June 7, 2012, before filing suit, the Ayerses sent a letter entitled " NOTICE OF CLAIM" to Dr. Bull and several of the other defendants along with an " AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION." The authorization stated in relevant part:

B. The health information to be obtained, used, or disclosed extends to and includes the verbal as well as the written and is specifically described as follows:
...
2. The health information in the custody of the following physicians or health care providers who have examined, evaluated, or treated DARYL LYNN AYERS during a period commencing five years prior to the incident made the basis of the accompanying Notice of Health Care Claim.
ALL HEATH [sic] CARE PROVIDERS PROVIDING CARE/TREATMENT TO DARYL LYNN AYERS.

The authorization did not list the name and current address of any physicians who had treated Daryl during the five years before the alleged incident, thus, according to Dr. Borowski, rendering the authorization meaningless and failing to comply with the requirements of Civil Practice and Remedies Code section 74.052. Dr. Borowski contended that, because the authorization failed to comply with the statute, the Ayerses did not provide the proper statutory presuit notice to any of the defendants as required by Civil Practice and Remedies Code section ...


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