Adam M. Borowski, M.D., Brian D. Bull, M.D., and Hillcrest Family Health Center v. Karen Ayers, Individually and as Representative of the Estate of Daryl Lynn Ayers, and Ethan Ayers
2016 Tex. App. LEXIS 11105
Tex. App.2016Background
- In July 2010 Daryl Ayers received care; Ayerses sued in Sept. 2012 alleging failure to diagnose/treat an aortic dissection, naming Drs. Borowski and Bull and Hillcrest among others.
- Plaintiffs sent a pre-suit "Notice of Claim" with an authorization form that tracked the statutory form but did not list any names or addresses of providers who treated Daryl during the five years before the incident; instead it stated "ALL HEATH CARE PROVIDERS PROVIDING CARE/TREATMENT TO DARYL LYNN AYERS."
- Defendants moved for traditional summary judgment arguing the pre-suit notice was defective (authorization failed to comply with Tex. Civ. Prac. & Rem. Code §§ 74.051–.052) and thus plaintiffs were not entitled to the 75‑day tolling; suit was filed after the two‑year limitations period.
- The trial court denied the motions, concluding the authorization substantially complied with § 74.052 and tolled limitations; interlocutory appeals were permitted.
- The court of appeals reviewed de novo whether the plaintiffs’ authorization substantially complied with the statutory form and whether tolling under § 74.051(c) applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an authorization that tracks § 74.052 but omits listing names/addresses of providers for the prior five years substantially complies with § 74.052 and triggers tolling under § 74.051(c) | The authorization substantially complied because it tracked the statutory language, permitted disclosure to defendants, and therefore fulfilled the statute’s purpose of enabling pre‑suit investigation (Mock/Rabatin support) | Omitting the five‑year providers’ names/addresses renders the authorization effectively meaningless and prevents defendants from locating records and evaluating the claim, so tolling should not apply (Nicholson/Mitchell/Brannan/Myles support) | Held for defendants: the authorization did not substantially comply; omission of five‑year provider identities seriously hinders presuit investigation and does not toll the limitations period |
Key Cases Cited
- Carreras v. Marroquin, 339 S.W.3d 68 (Tex. 2011) (authorization must accompany notice; tolling depends on compliance and abatement cannot rescue untimely suits)
- Mock v. Presbyterian Hosp. of Plano, 379 S.W.3d 391 (Tex. App.—Dallas 2012) (minor, inadvertent errors in statutory form that do not impede investigation may still constitute substantial compliance)
- Mitchell v. Methodist Hosp., 376 S.W.3d 833 (Tex. App.—Houston [1st Dist.] 2012) (HIPAA release omitted required elements; failure to identify five‑year providers defeats substantial compliance)
- Myles v. St. Luke’s Episcopal Hosp., 468 S.W.3d 207 (Tex. App.—Houston [14th Dist.] 2015) (omitting five‑year provider identities interferes with statutory design and precludes tolling)
- Rabatin v. Kidd, 281 S.W.3d 558 (Tex. App.—El Paso 2008) (pre‑Carreras decision finding improperly completed authorization may toll when it gives fair warning and enables investigation)