United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
L. HORAN, UNITED STATES MAGISTRATE JUDGE
Walgreen Co. filed a Motion for Sixty-Day Abatement.
See Dkt. No. 34 (the “Motion to Abate”).
Walgreen explains that “[t]he pre-suit notice of claim
that Plaintiff Gordon Potts (‘Plaintiff' or
‘Potts') provided to Defendant Walgreen Co.
contained an authorization, which did not comply with Texas
Civil Practice Code Section (‘CPRC') 74.052, and
which did not allow Walgreen Co. to investigate
Plaintiff's claims” and that “[n]ow that
Plaintiff has provided a complete authorization and list of
medical providers in response to Walgreen Co.'s written
discovery, Walgreen Co. respectfully requests a sixty-day
abatement of the case to obtain Plaintiff's medical
records prior to resuming discovery.” Id. at
States District Judge Jane J. Boyle has referred the Motion
to Abate to the undersigned United States magistrate judge
for hearing, if necessary, and determination under 28 U.S.C.
§ 636(b). See Dkt. No. 42.
filed a response, see Dkt. No. 40, and Walgreen
filed a reply, see Dkt. No. 48.
reasons explained below, the Court GRANTS Defendant Walgreen
Co.'s Motion for Sixty-Day Abatement [Dkt. No. 34].
As Walgreen explains the background to its Motion to Abate,
[p]ursuant to the Texas Medical Liability Act, notice of a
health care claim under CPRC 74.051 must be accompanied by a
medical authorization in the form specified by CPRC 74.052.
See Tex. Civ. Prac. & Rem Code Ann.§
74.052(a) (West 2018).
A Plaintiff's failure to provide the required
authorization (along with the notice of health care claim)
shall abate all further proceedings against the health care
provider receiving the notice until sixty (60) days following
receipt by the health care provider of the required
authorization. See id.
CPRC Section 74.051(a) “requires that notice must be
accompanied by [an] authorization form for release of
protected health information as required under Section 74.052
permitting the health care provider access to the
claimant's pertinent medical records.” See Jose
Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 68, 71
(Tex. 2011)(internal quotations omitted).
The pre-suit medical authorization that Plaintiff provided to
Walgreen Co. was defective as to the form of the
More importantly, Plaintiff's pre-suit authorization
listed only two providers, obviously an incomplete list when
compared to Plaintiff's interrogatory responses where
thirteen providers were identified. Moreover, Plaintiff's
pre-suit authorization expressly excluded a dermatologist
provider by claiming that the records from the dermatologist
were not relevant to the investigation of this matter.
Exclusion of a dermatologist provider is especially
problematic for Walgreen Co. in the defense and investigation
of Plaintiff's claims because Plaintiff specifically is
claiming dermatological injuries as a result of taking the
Paragraphs eleven and fourteen of Plaintiff's first
amended petition allege that Plaintiff developed a skin rash
and welts as a result of this incident. Paragraph fourteen
claims that Plaintiff has permanent scarring as a result of
Despite these claims, by failing to provide a complete list
of health care providers, and by excluding a dermatologist
provider, Plaintiff thwarted the express purpose of CPRC
Section 74.052 - to allow Walgreen Co. to obtain
Plaintiff's records and investigate the claim prior to
the lawsuit being filed.
Now that Walgreen Co. finally has a complete list of
Plaintiff's medical providers and a proper unrestricted
medical authorization, Walgreen Co. requests a sixty-day
abatement of this case and all discovery, as provided by of
CPRC Section 74.052, so that it may obtain Plaintiff's
records as it was not able to do pre-suit.
Dkt. No. 34 at 1-2. Walgreen requests “a sixty-day
abatement of this case and all discovery, so that it may
obtain Plaintiff's records prior to continuing with
discovery in this matter.” Id. at 3.
Potts opposes the requested abatement, contending that,
[p]rior to the institution of this lawsuit, on June 12, 2017,
it is undisputed that Plaintiff provided Defendant Walgreen
Co. (“Walgreens”) pre-suit notice of its claim
and a medical authorization pursuant to the requirements of
Tex. Civ. Prac. & Rem Code §§ 74.051 and
74.052. See Ex. A, Potts' Notice Letter dated
June 12, 2017. Then on January 5, 2018, Plaintiff again
provided a HIPAA authorization (Ex. B) and an authorization
for the release of medical records (Ex. C) with his Responses
to Walgreens' Discovery Request. See Ex. B and
Ex. C. Defendant failed to seek any records from Potts'
medical providers after receiving an authorization in June
2017, listing Potts providers for the last five (5) years.
Dkt. No. 40 at 2 (footnote omitted). Potts further explains
[i]n Plaintiff's June 2017 authorization, he identified
his primary care doctor, which has attended almost all of his
medical needs in the five years preceding the accident. He
also identified a dermatologist, a dentist, and Defendant
since a pharmacy is considered a health care provider under
the Texas Medical Liability Act.
With the exception of one health care provider, who Potts
mistakenly omitted from the list of excluded providers on its
June 2017 authorization, all other health care providers
identified in response to Walgreens' Interrogatory were
either Potts' health care providers prior to the five
year cut off, or were identified in the authorization as
health care providers. Ex. A. The sole omitted health care
provider examined Potts for an unrelated blood pressure
condition three years prior to the dispensing error. As Potts
has not alleged heightened blood pressure as a result of the
dispensing error, this provider would have been listed as an
excluded provider, and thus, no documents would have been
produced pursuant to the language of the authorization.
Potts only made a minor and insignificant mistake in the
authorization; thus, he has shown that he substantially
complied with the statute. ....
Plaintiff listed two medical providers as excluded providers
under the authorization, a dermatologist and a dentist. Ex.
A. Defendant takes issue with Plaintiff's exclusion of
only the dermatologist and claims that by excluding the
dermatologist, Plaintiff has thwarted the express purposes of
Tex. Civ. Prac. & Rem Code 74.052. Def. Motion to Abate
at *2. Again, Defendant cites no supportive exhibits for this
argument and fails to point out that it did not investigate
the claim of Potts in any manner prior this lawsuit being
However, to be compliant with the applicable statute, Tex.
Civ. Prac. & Rem Code 74.052 requires that “a
medical authorization need only be in the form specified by
this section.” Only when an authorization in the form
specified fails to accompany the notice of health care claim
shall there be any abatement of the proceedings. Id.
Here, Potts provided the required authorization and the
authorization form allowed the defendant to obtain medical
records from other providers (primary care physician) to
assist in evaluating Plaintiff's claim. Plaintiff
excluded a dermatologist that evaluated him for an unrelated
skin condition almost two years prior to the dispensing
error. Consequently, pursuant to the language of the
authorization form found in § 74.052, Plaintiff is
entitled to “contend that such health care information
is not relevant to the damages being claimed or to the
physical, mental, or emotional condition of
[Plaintiff].” Id. § 74.052(c). Clearly,
this statutory language is intended to provide a claimant
with a method to prevent a party from needlessly digging into
all of his private medical history.
Id. at 3-4, 6-7.
contends that his “Notice and Authorization (Ex. A)
were not deficient and complied with Tex. Civ. Prac. &
Rem Code §§ 74.051 and 74.052” and
“requests this Court deny Defendant's Motion for
Sixty-Day Abatement.” Id. at 8.
replies that “Plaintiff's pre-suit authorization
listed only two providers, obviously an incomplete list when
compared to Plaintiff's interrogatory responses (provided
in camera to protect Plaintiff's privacy) where
thirteen providers were identified” and that
“Plaintiff's pre-suit authorization expressly
excluded a dermatologist provider by claiming that the
records from the dermatologist were not relevant to the
investigation of this matter.” Dkt. No. 48 at 1.
Walgreen further replies that
[t]he statutory scheme set forth by the Texas Legislature in
the Texas Medical Liability Act provides that Walgreen Co. is
entitled to obtain Plaintiff's records before suit was
filed, and before discovery is commenced by Plaintiff.
Plaintiff's actions in withholding relevant providers in
his pre-suit authorization deprived Walgreen of the
opportunity to investigate Plaintiff's claims. Simply
put, Plaintiff's actions deprived Walgreen Co. of the
Walgreen Co. has been forced to respond to Plaintiff's
discovery, produce hundreds of pages of documents, defend a
frivolous motion to compel filed by Plaintiff, extend its
expert deadline, seek an abatement, all the while not having
had the statutory period to investigate Plaintiff's
claims as the Texas Legislature had intended.
Walgreen respectfully suggests that it is entitled to the
statutory period of sixty days to obtain Plaintiff's
records and obtain without having to respond to
Plaintiff's motions or take other actions in this case.
Id. at 1-2.
Walgreen notes that “Plaintiff admits he omitted two
providers form his pre-suit authorization - a doctor who
treated him for high blood pressure and a
dermatologist” - and therefore “admits he did not
comply with the statute, and now that Plaintiff has complied
with the Texas Medical Liability Act, Walgreen Co. is
entitled to a sixty-day abatement, ” where,
“[a]lthough Plaintiff  in this case did not fail to
list all of his providers, he failed to list some of his
providers, and thereby hindered the legislative
intent.” Id. at 3, 5.
reports that it “subpoenaed the Plaintiff's records
within two weeks of getting Plaintiff's discovery
responses, and requested that its records service put a
‘rush' on obtaining the records” and that
Walgreen's “attorneys and Paralegals have followed
up with the records service on several occasions, and have
learned that the delay is due to the providers not yet
providing the records” but that, “due to a delay
in receiving the records from Plaintiff's providers,
Walgreen does not yet have any of the records it subpoenaed
to investigate Plaintiff's claims and preexisting medical
history” and, “[a]t this time, ... does not know
how long it will take to receive Plaintiff's records, or
specifically what experts it will need.” Id.
at 1, 3.
Civil Practice and Remedies Code § 74.051 provides:
(a) Any person or his authorized agent asserting a health
care liability claim shall give written notice of such claim
by certified mail, return receipt requested, to each
physician or health care provider against whom such claim is
being made at least 60 days before the filing of a suit in
any court of this state based upon a health care liability
claim. The notice must be accompanied by the authorization
form for release of protected health information as required
under Section 74.052.
(b) In such pleadings as are subsequently filed in any court,
each party shall state that it has fully complied with the
provisions of this section and Section 74.052 and shall
provide such evidence thereof as the judge of the court may
require to ...