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Salinas v. Methodist Healthcare System of San Antonio, Ltd., L.L.P.

Court of Appeals of Texas, Seventh District, Amarillo

August 13, 2019

ROBERT SALINAS, APPELLANT
v.
METHODIST HEALTHCARE SYSTEM OF SAN ANTONIO, LTD., L.L.P., ET AL., APPELLEES

          On Appeal from the 407th District Court Bexar County, Texas Trial Court No. 2017-CI-23765

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          MEMORANDUM OPINION

          Brian Quinn Chief Justice

         Robert 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. [1]

         Standard of Review and Law

         The 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.

         Next, 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).

         Per § 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 states:

[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 Section 74.052.

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).

         Next, 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

         The 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 unspecified.

         The 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 ...


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