Court of Appeals of Texas, Twelfth District, Tyler
IN RE: GARY BOYD, M.D., MATTHEW APPLEGATE, ACNP, AND TYLER GASTROENTEROLOGY ASSOCIATES, P.A., RELATORS
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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. We deny the writ.
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
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
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.
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.
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
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.
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).