Catherine Johnson Individually, and as Personal Representative and Heir of the Estate of Freddie Mae Johnson v. PHCC-Westwood Rehabilitation & Health Care Center, LLC D/B/A Westwood Rehabilitation and Healthcare Center and Viren Shah, M.D.
501 S.W.3d 245
Tex. App.2016Background
- Plaintiff Catherine Johnson sued Westwood Rehabilitation and Dr. Viren Shah for medical negligence arising from care of her mother, Freddie Mae Johnson, who developed a decubitus ulcer while at Westwood and later received care elsewhere before dying in 2012.
- Catherine sent pre-suit notices (Feb 24, 2012 to Westwood; Mar 21, 2012 to Dr. Shah) with medical-authorizations signed by Freddie Mae’s daughter, Alice Sims, under a general durable power of attorney executed in 2000.
- The statutory-form medical authorization omitted numerous providers who treated Freddie Mae after her Westwood discharge (Dec 8, 2011–Feb 24, 2012) and failed to list all providers from the five years preceding the incident.
- Catherine filed suit Jan 3, 2014, after the two-year statute of limitations had run from the operative accrual dates; she invoked tolling based on the pre-suit notices and authorizations.
- The trial court granted summary judgment for defendants on statute-of-limitations grounds; the court of appeals affirmed, holding the authorizations did not comply with section 74.052 and therefore did not toll limitations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the medical-authorizations accompanying pre-suit notices complied with Tex. Civ. Prac. & Rem. Code § 74.052 so as to toll the two-year limitations period | Johnson: the statutory form was substantially complied with; Sims could sign under Freddie Mae’s general power of attorney because Freddie Mae was incapacitated | Defendants: the authorizations materially omitted treating providers (post-discharge and five-year lookback) and Sims lacked authority under a medical power of attorney to authorize disclosure | The authorizations were noncompliant (missing providers and lacking proper medical-authority signature); they did not toll limitations and the suit is time-barred |
Key Cases Cited
- Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171 (Tex. 2012) (statutory medical-authorization form required for tolling pre-suit limitations)
- Jose Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 68 (Tex. 2011) (both notice and executed statutory authorization are required to toll the limitations period)
- Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844 (Tex. 2009) (standard of review for summary judgment)