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Potts v. Walgreen Co.

United States District Court, N.D. Texas, Dallas Division

February 26, 2018

GORDON POTTS, Plaintiff,
v.
WALGREEN CO., Defendant.

          MEMORANDUM OPINION AND ORDER

          DAVID L. HORAN, UNITED STATES MAGISTRATE JUDGE

         Defendant 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 1.

         United 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.

         Potts filed a response, see Dkt. No. 40, and Walgreen filed a reply, see Dkt. No. 48.

         For the reasons explained below, the Court GRANTS Defendant Walgreen Co.'s Motion for Sixty-Day Abatement [Dkt. No. 34].

         Background

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 authorization.
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 incorrect medication.
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 this incident.
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 that,

[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 filed.
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. § 74.052.
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.

         Potts 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.

         Walgreen 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 statutory period.
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.

         And 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.

         Walgreen 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.

         Legal Standards

         Texas 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 ...

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