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In re Boyd

Court of Appeals of Texas, Twelfth District, Tyler

August 21, 2019

IN RE: GARY BOYD, M.D., MATTHEW APPLEGATE, ACNP, AND TYLER GASTROENTEROLOGY ASSOCIATES, P.A., RELATORS

          ORIGINAL PROCEEDING

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          BRIAN HOYLE JUSTICE

         Relators, Gary Boyd, M.D., Matthew Applegate, A.C.N.P., and Tyler Gastroenterology Associates, P.A., filed this original proceeding to challenge Respondent's failure to grant their motion to abate.[1] We deny the writ.

         Background

         On August 21, 2018, Real Party in Interest, Thomas Sorrells, as next friend of Baby E.S., a minor, and on Behalf of the Estate of Lou'Racheal Corie Stinson, sued Relators, alleging negligence and gross negligence. According to the petition, Stinson, Sorrells's sister, was a patient of Boyd's, Applegate worked with Boyd and examined Stinson, and Tyler Gastroenterology employed Applegate and Boyd. The petition alleged that Stinson died of complications from pancreatitis and likely duodenal perforation. Sorrells alleged that Boyd's treatment led to Stinson's death, Boyd has a history of malpractice, and Tyler Gastroenterology is jointly and severally liable for Boyd's actions. Stinson was twenty-one years old at the time of her death and was survived by her daughter, Baby E.S. Sorrells sought damages, including those under the Wrongful Death and Survival Acts.

         The record contains a March 2018 notice of claim letter from Sorrells to Relators pursuant to Section 74.051 of the civil practice and remedies code. The attached authorization form lists Boyd, Tyler Gastroenterology, ETX Successor Tyler f/k/a East Texas Medical Center (ETMC), and Ardent Health Services d/b/a UT Health Tyler, successor-in-interest to ETMC as Stinson's health care providers for the previous five years. In a subsequent response to a request for interrogatories, Sorrells stated that he did not know Stinson's health care providers from the previous ten years, other than those at issue in the lawsuit and her OB/GYN.

         In May 2019, Sorrells filed a motion to compel discovery responses and, on May 16, the court coordinator sent a notice setting a hearing for June 21 to address "all pending motions pertaining to discovery." On June 11, Relators filed a motion for mandatory statutory abatement. They argued that Sorrells failed to provide a complete list of Stinson's health care providers for the five years preceding her death in accordance with the civil practice and remedies code. According to Relators, the civil practice and remedies code requires a notice of claim letter and properly executed authorization form for the release of protected health information and the failure to provide a properly executed authorization form mandated a sixty-day abatement of the case. Relators requested that the motion be set for a June 14 hearing, but the record does not reflect that Respondent set the motion for a hearing.

         At the June 21 hearing, Sorrells's counsel argued that the motion to abate had not been set for June 21. Respondent initially indicated that the motion to abate should be heard before the motion to compel, but subsequently agreed with Sorrells, stating, "I think that's correct. When the order went out, it was pending motions at that time…. Let's go ahead and hear the motion to compel set for today." Relators' counsel asserted abatement in response to the motion to compel and urged that the issue was properly before the court. The record does not indicate that Respondent ruled on the motion to abate either at the June 21 hearing or thereafter.

         On June 24, Relators filed their petition for writ of mandamus with this Court and we granted their request for a stay of the trial court proceedings pending further order of this Court. On July 2, Sorrells provided a new authorization form, which again listed Boyd, Tyler Gastroenterology, ETX Successor Tyler f/k/a ETMC, and Ardent Health Services d/b/a UT Health Tyler as Stinson's health care providers for the previous five years. However, the form added Dr. Yasser F. Zeid, Zeid's Women's Health Center, CHRISTUS Good Shepherd Medical Center, and CHRISTUS Trinity Mother Frances Urgent Care as physicians or health care providers possessing health care information concerning Stinson to whom the authorization does not apply because such health care information is not relevant to the damages being claimed or to the physical, mental, or emotional condition of Stinson arising out of the claim made the basis of the accompanying Notice of Health Care Claim.

         Prerequisites to Mandamus

         Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). A writ of mandamus will issue only when the relator has no adequate remedy by appeal and the trial court committed a clear abuse of discretion. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). The relator has the burden of establishing both prerequisites. In re Fitzgerald, 429 S.W.3d 886, 891 (Tex. App.-Tyler 2014, orig. proceeding.).

         Mandamus is warranted when a trial court's order thwarts the important public policies embodied in Section 74.052(c) of the civil practice and remedies code, which addresses the medical authorization form requirement. See In re Collins, 286 S.W.3d 911, 920 (Tex. 2009) (orig. proceeding) (if Legislature intended to provide health care liability defendants with informal, expedited means of evaluating merits of a health care claimant's claims, then trial court's protective order, which barred defendants from having ex parte communications with plaintiff's non-party medical providers, undermines that purpose); see also In re Dentistry of Brownsville, P.C., No. 13-13-00250-CV, 2013 WL 2470760, at *1 (Tex. App.-Corpus Christi June 4, 2013, orig. proceeding) (mem. op.) (reviewing by mandamus trial court's denial of motion to abate for failure to comply with Sections 74.051 and 74.052); Tex. Civ. Prac. & Rem. Code Ann. § 74.052 (West Supp. 2018).

         Abuse ...


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