Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 407th District Court Bexar County, Texas
Trial Court No. 2017-CI-23765
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Quinn Chief Justice
Salinas (Salinas) appeals from a summary judgment denying him
recovery against Dr. Sarah Weakley (Weakley), Methodist
Healthcare System of San Antonio, LTD., L.L.P., (Methodist),
Tiffanny Marie Isaac, Wanda Le Grange, Chantel Dunk, and
Kathryn Vierzba (the nurses/techs). He sued Weakley,
Methodist, and the nurses/techs for medical malpractice
because they left a sponge inside him upon completing
surgery. Each defendant moved for summary judgment,
contending that the two-year limitations period had expired.
No one disputes that suit was initiated more than two years
after the alleged malpractice occurred but within the tolling
period established by statute. The dispute lies in whether
Salinas complied with the applicable statute and triggered
the tolling period. The trial court concluded that he did not
and granted the summary judgment motions. Salinas appealed.
We affirm. 
of Review and Law
standard of review we follow is that discussed in Exxon
Mobil Corp. v. Rincones, 520 S.W.3d 572, 579 (Tex.
2017), and Cantey Hanger, LLP v. Byrd, 467 S.W.3d
477, 481 (Tex. 2015). We refer the parties to those cases for
a discussion of it.
the chose-in-action underlying Salinas' suit is a health
care liability claim. Such claims have a two-year limitations
period. Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a)
(West 2017). A claimant, however, can toll the expiration of
that period for 75 days by complying with certain notice
requirements. Id. § 74.051 (c).
§ 74.051(c) of the Civil Practice and Remedies Code, the
period is tolled 75 days when notice is "given as
provided" in § 74.051(a). Id. The latter
[a]ny 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
Id. § 74.051(a). Mailing both notice and the
authorization form are prerequisites to tolling, according to
our Supreme Court. Jose Carreras, M.D., P.A. v.
Marroquin, 339 S.W.3d 68, 74 (Tex. 2011).
statute dictates the content of the authorization form.
See Tex. Civ. Prac. & Rem. Code Ann. §
74.052(c) (West Supp. 2018). Though the statute specifying
the content of the authorization form was amended after
Salinas underwent the surgery in question, the amendments
took immediate effect on June 9, 2017. See Act of
June 11, 2003, 78th Leg., R.S., ch. 204, 2003 Tex. Gen. Laws
867, amended by Act of June 9, 2017, 85th Leg.,
R.S., ch. 506, § 1, 2017 Tex. Gen. Laws 1336 (eff. June
9, 2017). Nonetheless, the changes are of little import here.
Each statute required Salinas to undertake the same
particular acts which are determinative here. Those acts
consisted of identifying health care providers encompassed
within the medical authorization form. The physicians and
health care providers which had (and have) to be identified
are 1) those "who have examined, evaluated, or treated
[Salinas] in connection with the injuries alleged to have
been sustained in connection with the claim asserted in the
accompanying Notice of Health Care Claim," id.
§ 74.052(c)(B)(1), 2) those "who have examined,
evaluated, or treated [Salinas] during a period commencing
five years prior to the incident made the basis of the
accompanying Notice of Health Care Claim," id.
§ 74.052(c)(B)(2), and 3) those excluded from the
medical authorization since their information is irrelevant.
Id. § 74.052(c)(C)(1). The statutory form
itself separates these three categories of people and
entities into different paragraphs.
Application of the Standard of Review and Law
summary judgment record at bar contains several affidavits
executed by Salinas' attorney and that attorney's
assistant. The assistant attested to how she mailed the
requisite notice accompanied by the mandatory authorization
form. Copies of the notice and form purportedly mailed were
attached to her affidavit. Within the two paragraphs of the
form pertaining to the records of physicians and health care
providers who examined or treated him in connection with the
injuries underlying the suit, and who examined and treated
him in general over the preceding five years appears the
notation "(Please see attached list)." Only one
list was attached. Labelled "LIST OF PROVIDERS 5 YEARS
PRIOR TO INCIDENT THROUGH PRESENT," it contained the
names, addresses and phone numbers of 1) "Methodist
Hospital[, ] Methodist Specialty and Transplant
Hospital," 2) "General Surgery Associates - Sarah
Weakley, MD," 3) "Christus Physician Group -
Veronica Betancur, MD," and 4) "Christus Santa Rosa
Wound Care & Hyperbaric Center - Ricardo Aguilar,
MD." Whether these four named individuals and entities
were the health care provides who treated him in connection
with the injuries he purportedly sustained as a result of
malpractice or the health care providers who simply examined
him during a period five years prior to the incident went
foregoing absence of delineation is immaterial in
Salinas' view. He suggests that "[t]here was no need
for segregation in this case because the providers identified
on the list were all treaters involved in the surgeries at
issue and were the only providers Mr. Salinas saw in the