Opinion
NO. 14-18-00830-CV
08-04-2020
DONNIE HEINZEN, Appellant v. RANDOLPH WHITFORD, M.D., EYES OVER TEXAS EYE CARE P.A., MEMORIAL HERMANN HEALTH SYSTEM, INDIVIDUALLY AND D/B/A MEMORIAL HERMANN KATY HOSPITAL, MEMORIAL HERMANN KATY HOSPITAL, MIKAEL LUCAS, M.D., MIKAEL L. LUCAS, M.D., P.L.L.C., SYED MADNI, M.D., ET AL, Appellees
On Appeal from the 129th District Court Harris County, Texas
Trial Court Cause No. 2017-33241
MEMORANDUM OPINION
Appellant Donnie Heinzen sued appellees Randolph Whitford, M.D., Eyes over Texas Eye Care, P.A., Memorial Hermann Health System d/b/a Memorial Hermann Katy Hospital, Mikael Lucas, M.D., Mikael L. Lucas, PLLC, Syed Madni, M.D., and Medical Associates of Katy, PLLC ("appellees") for injuries she sustained arising out of her visit to the emergency room at Memorial Hermann Hospital in Katy, Texas and her treatment there. Appellees moved for summary judgment, arguing that Heinzen's health care liability claims are barred by the two-year statute of limitations. TEX. CIV. PRAC. & REM. CODE § 74.251(a) (The Texas Medical Liability Act). The trial court granted final summary judgment that Heinzen take nothing against appellees. We affirm.
I. BACKGROUND
On March 6, 2015, Heinzen went to the emergency room at Memorial Hermann Hospital in Katy (the "Hospital"), reporting a headache with pain around her right and left eyes. Emergency room staff evaluated Heinzen and determined that she needed to be admitted to the Hospital to determine the cause of her complaints. Hospital staff performed a variety of diagnostic tests on Heinzen, and ultimately determined an ophthalmologist examination was necessary to diagnose her condition. The Hospital did not have an ophthalmologist on staff so Heinzen had to wait for a specialist to arrive. Dr. Randolf Whitford, the specialist affiliated with the Hospital, performed an eye exam with equipment available to him at the Hospital on March 8, 2015, and diagnosed Heinzen with an infectious or autoimmune syndrome. It was not until March 10, 2015 that Heinzen was taken to Dr. Charles Wykoff's office, where he performed a complete examination and diagnosed her with acute angle glaucoma. Heinzen was discharged from the Hospital on March 11, 2015. Heinzen alleges that the delay in receiving a proper diagnosis and care for her condition resulted in her permanent eye damage and permanent limited vision.
On March 3, 2017, Heinzen sent notice of her health care liability claim to Dr. Whitford, Dr. Mikael Lucas, and the Hospital, pursuant to section 74.051 of the Texas Medical Liability Act ("TMLA"), along with the statutorily required medical authorization form. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.051 and § 74.052. However, as discussed in more detail later, the authorization form omitted five physicians who appellees claim examined or treated Heinzen in connection with the injuries of which she complains, as well as other physicians who treated Heinzen in the five years preceding the incident. Heinzen filed suit against appellees on May 17, 2017, more than two years after the date she was discharged from the Hospital. The appellees each filed a traditional motion for summary judgment, alleging that Heinzen's lawsuit was barred by the two-year statute of limitations because her pre-suit notice was insufficient to toll the limitations. On August 24, 2018, the trial court granted the appellees' motions for summary judgment and signed a final summary judgment that Heinzen take nothing on her claims against appellees.
Heinzen timely appealed the trial court's judgment.
II. STANDARD OF REVIEW
We review de novo a trial court's order granting a traditional summary judgment. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Mayer v. Willowbrook Plaza Ltd. P'ship, 278 S.W.3d 901, 908 (Tex. App.—Houston [14th Dist.] 2009, no pet.). When reviewing a summary judgment, we examine the record in the light most favorable to the nonmoving party, indulging every reasonable inference and resolving any doubts in the nonmoving party's favor. Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015).
The party moving for traditional summary judgment bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam). When a defendant moves for summary judgment on an affirmative defense, such as the statute of limitations, it must conclusively prove all the essential elements of his defense as a matter of law, leaving no issues of material fact. Sharp v. Kroger Tex. L.P., 500 S.W.3d 117, 119 (Tex. App.—Houston [14th Dist.] 2016, no pet.).
III. ANALYSIS
Heinzen's appeal presents the following four issues: (1) whether the district court correctly granted appellees' motions for summary judgment; (2) whether Heinzen's lawsuit is barred by limitations; (3) whether Heinzen's authorization form substantially complied with the TMLA's requirements sufficient to toll limitations; and (4) whether limitations should be tolled due to Heinzen's memory loss.
Below, the first three issues are addressed together; we then address Heinzen's fourth issue.
A. STATUTE OF LIMITATIONS
Heinzen does not dispute that her health care liability claims are governed by section 74.251 of the TMLA, which provides for a two-year limitations period, commencing from (1) the occurrence of the breach or tort, (2) the last date of the relevant course of treatment, or (3) the last date of the relevant hospitalization. TEX. CIV. PRAC. & REM. CODE § 74.251(a); Mitchell v. Methodist Hosp., 376 S.W.3d 833, 835 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). Heinzen argues that her health care liability claims are not barred by section 74.251 because her treatment for her glaucoma continued to at least June of 2015, and suit was filed on May 17, 2017; thus, suit was filed less than two years from her last treatment.
If the date of the breach or tort is ascertainable, limitations begin to run on that date and inquiry into the second and third categories is unnecessary.
Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001) (construing Tex. Rev. Civ. Stat., art. 4590i, § 10.01, the predecessor to section 74.251); Estate of Klovenski v. Kapoor, No. 14-13-00850-CV, 2015 WL 732651, at *4 (Tex. App.—Houston [14th Dist.] Feb. 19, 2015, no pet.) (mem. op.); Nicholson v. Shinn, No. 01-07-00973-CV, 2009 WL 3152111, at *2 (Tex. App.—Houston [1st Dist.] Oct. 1, 2009, no pet.) (mem. op.).
Here, the dates of appellees' alleged breaches are ascertainable. Heinzen asserts that the breach in the standard of care was appellees' failure to diagnose and treat her for acute angle glaucoma. Heinzen was seen by appellees between March 7 and March 11 of 2015, for the claims made the basis of her suit. Heinzen was discharged from the Hospital on March 11, 2015. The date that appellees' alleged breach occurred is no later than March 11, 2015 because that is the last date on which Heinzen received treatment from any of appellees. See Bala v. Maxwell, 909 S.W.2d 889, 892 (Tex. 1995) (alleged negligence for failure to diagnose and treat plaintiff for her cancer could have occurred only on the days the doctor examined plaintiff); Estate of Klovenski v. Kapoor, No. 14-13-00850-CV, 2015 WL 732651, at *5 (Tex. App.—Houston [14th Dist.] Feb. 19, 2015, no pet.) (mem. op.) (same). Heinzen filed suit on May 17, 2017, more than two years after the breach, which occurred no later than March 11, 2015. So, her claims are barred by section 74.251, unless the running of limitations was tolled by some other provision of the TMLA.
B. LIMITATIONS WAS NOT TOLLED UNDER SECTION 74.051
The written notice of a health care liability claim to each physician or health care provider against whom such claim is being made tolls the applicable statute of limitations up to and including a period of 75 days following the giving of the notice; this tolling applies to all parties and potential parties. TEX. CIV. PRAC. & REM. CODE § 74.051(a), (c). "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). "[F]or the statute of limitations to be tolled in a health care liability claim pursuant to Chapter 74, a plaintiff must provide both the statutorily required notice and the statutorily required authorization form." Carreras v. Marroquin, 339 S.W.3d 68, 74 (Tex. 2011) (emphasis added). The Legislature intended the authorization, requiring disclosure of otherwise privileged information sixty days before filing suit, to provide an opportunity for health care providers to investigate and possibly settle claims with merit at an early stage. Id. at 73.
"The notice and authorization form are intended to afford the defendant the ability to investigate the claim and resolve it prior to protracted litigation." Myles v. St. Luke's Episcopal Hosp., 468 S.W.3d 207, 209 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (citing TEX. CIV. PRAC. & REM. CODE § 74.052; Brannan v. Toland, No. 01-13-00051-CV, 2013 WL 4004472, at *2 (Tex. App.—Houston [1st Dist.] Aug. 6, 2013, pet. denied) (mem. op.)). "The authorization form grants the defendant physician or health care provider authorization to disclose the plaintiff's medical records." Myles, 468 S.W.3d at 209. "The notice and medical authorization form encourages pre-suit investigation, negotiation, and settlement of health care liability claims." Id.
When Heinzen mailed the notice and authorization form to appellees in March 2017, the 2003 version of section 74.052 prescribed the authorization form's requirements. See Act of June 11, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 864, 867-68 (amended 2017, eff. June 9, 2017). Section 74.052 provided that the required medical authorization "shall be in the following form" and gave the text of the form with several blanks to be filled in with information specific to the plaintiff's claim. Id. Section 74.052 required the plaintiff to provide the names and current addresses for two categories of health care providers: those who (1) provided treatment in connection with the injuries alleged to have been sustained in connection with the health care liability claim; and (2) provided treatment to the patient during a period commencing five years prior to the incident made the basis of the health care liability claim. Id.
Section 74.052 was also subsequently amended in 2019 (current version at Tex. Civ. Prac. & Rem. Code § 74.052).
"A medical authorization form that does not contain section 74.052's required information does not toll the statute of limitations when the missing information 'interferes with the statutory design to enhance the opportunity for pre-suit investigation, negotiation, and settlement.'" Walthour v. Advanced Dermatology, No. 14-17-00332-CV, 2018 WL 1725904, at *3 (Tex. App.—Houston [14th Dist.] Apr. 10, 2018, no pet.) (mem. op.) (quoting Mitchell v. Methodist Hosp., 376 S.W.3d 833, 837 (Tex. App.—Houston [1st Dist.] 2012, pet. denied)). "Medical records authorizations that omit material health-care providers do not toll the TMLA's limitation provisions." Areno v. Bryan, No. 01-18-00085-CV, 2018 WL 6684861, at *3 (Tex. App.—Houston [1st Dist.] Dec. 20, 2018, pet. denied) (mem. op.). "The statute of limitations is not tolled if the authorization form fails to list or provides an incomplete list of the health care providers that provided treatment in connection with the injuries alleged to have been sustained in connection with the health care liability claim." Galloway v. Atrium Med. Ctr., L.P., 558 S.W.3d 316, 321 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (emphasis added).
Of relevance here is our decision in Walthour, 2018 WL 1725904, although some of the material facts are different than those in this appeal. There, our court agreed with decisions of the First Court of Appeals that: "[A]n authorization form that provided only a portion of the requested health care information did not toll the statute of limitations. See Davenport v. Adu-Lartey, 526 S.W.3d 544, 554 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (authorization form that "omitted physicians who treated [the plaintiff] in the five-year period preceding the 2012 surgery, numerous persons and entities involved in the 2012 surgery at the heart of this case, and a majority of the providers who treated [the plaintiff] after the 2012 surgery" did not toll limitations period); Johnson v. PHCC-Westwood Rehab. & Health Care Ctr., LLC, 501 S.W.3d 245, 251-52 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (authorization form that excluded five treating physicians and two other health care providers that treated the plaintiff for injuries forming the basis of her claim did not toll limitations period)." Although the authorization form of the appellant, Walthour, included a list of 13 medical providers, Walthour failed to list Advanced Dermatology and Jackson or any other medical provider who treated Walthour after the incident made the basis of this suit. Id. "This information was directly relevant to Advanced Dermatology's and Jackson's pre-suit investigation and their assessment of Walthour's claim. See Davenport, 526 S.W.3d at 554 (authorization form that omitted treating physicians "did no more to aid a pre-suit investigation than if it had not disclosed any physicians"); Johnson, 501 S.W.3d at 251-52 (plaintiff's failure to timely identify certain providers "thwarted [the defendants'] ability to retrieve a material number of ... relevant medical provider's records" and "interfered with the pre-suit evaluation encouraged by the statute")." Id. "Omitting this information hampered Advanced Dermatology's and Jackson's ability to negotiate and settle Walthour's claim. See Davenport, 526 S.W.3d at 554; Johnson, 501 S.W.3d at 251-52." Id. Our court concluded that "Walthour's notice and authorization form therefore failed to toll the limitations period applicable to her claim." Id.
Similarly, Heinzen's March 3, 2017 notice and authorization is materially incomplete. Her notice and authorization form identified five health care providers who examined, evaluated, or treated Heinzen in connection with the injury that is made the basis of her claim (Memorial Hermann Katy Hospital, Mikael Lucas, MD, Randolph P. Whitford, MD, Eyes Over Texas Eye Care, P.A., and the staff members of the preceding entities). Her notice and authorization identified three health care providers who had provided services within the five-year period preceding the incident (Anjali Varde, MD, Mubarak Khawaja, MD and Shelley Ferrell, MD, "and maybe others whose names I cannot remember"). But Heinzen's notice and authorization omitted five physicians who had examined or treated her in connection with her alleged injuries (Dr. Jose Diaz, Dr. Carlos Mazas, Dr. Charles Wycoff, Dr. Grace Lindhorst/University Eye Associates, and Dr. Nicholas Bell/Cizik Eye Clinic). Significantly, the omitted physicians treated Heinzen for the eye injuries and memory loss issues made the basis of her claim, including Dr. Lindhorst (who performed Heinzen's iridectomy surgery), Dr. Wycoff (who treated Heinzen for eye injuries), Dr. Mazas (who treated Heinzen for memory loss issues), and Dr. Diaz (a neurologist who treated, examined, and/or evaluated Heinzen). The authorization also omitted physicians who had treated Heinzen in the five years preceding the incident.
We cannot fault Heinzen for failing to include Dr. Bell and potentially Dr. Mazas because they treated Heinzen after she mailed her notice and authorization to defendants on March 3, 2017. However, Heinzen's authorization should have included Dr. Lindhorst and Dr. Wycoff, who treated Heinzen for eye injuries prior to submission of her required notice and authorization form. Her authorization form also should have included Dr. Diaz, a neurologist at the Hospital, who treated Heinzen on March 8 and 10, 2015, and discussed Heinzen's care with Dr. Mubarak Khawaja on March 11, 2015.
Heinzen asserts that appellees suffered no harm from her authorization form's omission of Dr. Lindhorst because appellees were able to obtain Dr. Lindhorst's records. However, appellees obtained Dr. Lindhorst's records well after suit was filed. The trial court could have reasonably concluded that Heinzen's omission of these physicians and the authorizations appellees needed to obtain these physicians' medical records interfered with appellees' ability to investigate and settle Heinzen's health care liability claims. Heinzen's notice and authorization therefore failed to substantially comply with sections 74.051 and 74.052 of the TMLA. See Walthour, 2018 WL 1725904, at *3-4; Borowski v. Ayers, 524 S.W.3d 292, 299-306 (Tex. App.—Waco 2016, pet. denied).
In support of her argument that her authorization form does substantially comply with the TMLA, Heinzen cites Mock v. Presbyterian Hosp. of Plano, 379 S.W.3d 391, 394 (Tex. App.—Dallas 2012, pet. denied) and Rabatin v. Kidd, 281 S.W.3d 558, 562 (Tex. App.—El Paso 2008, no pet.). These decisions are distinguishable and Rabatin has been limited by the Texas Supreme Court.
The plaintiffs in Mock sent notice of their claim to the defendants and provided the required authorization form, but incorrectly completed one of the authorization form's blanks. Mock, 379 S.W.3d at 394. The plaintiffs correctly completed the blank in four similar fields. Id. at 395 n.2. The Dallas Court of Appeals held that the authorization form was effective to trigger the tolling provision despite the plaintiffs' error. Id. at 395. The deficiencies in Heinzen's authorization form are far more significant than those at issue in Mock. Whereas the Mock plaintiffs incorrectly completed a single blank, Heinzen's authorization form failed to identify physicians who examined or treated her for the injuries forming the basis of her claims, and omitted at least one physician who had treated Heinzen in the five years preceding the incident.
In Rabatin, the El Paso Court of Appeals held that an improperly filled-out authorization form was sufficient because the physician was able to obtain the records and investigate the claim, despite the omissions in the notice. Rabatin, 281 S.W.3d at 562. In Myles, our court did not follow Rabatin because it was decided before the Texas Supreme Court clarified in Carreras, that a plaintiff must provide both the notice and the medical authorization form to toll the statute of limitations. 468 S.W.3d at 211 n.1 (noting Carreras, 339 S.W.3d at 74). The First Court of Appeals also has noted that Rabatin is not consistent with Carreras. See Davenport, 526 S.W.3d at553 n.3. Further, in contrast to Rabatin, because of Heinzen's omissions, appellees were unable to obtain all the information they needed to properly investigate and evaluate Heinzen's claims before she filed suit.
Heinzen has not shown that the trial court erred by implicitly concluding that limitations was not tolled under section 74.051. Accordingly, the trial court properly granted summary judgment for appellees because the two-year limitations period of section 74.251 expired before Heinzen filed her suit. We overrule Heinzen's first three issues.
C. HEINZEN'S MEMORY LOSS DID NOT TOLL LIMITATIONS OR EXCUSE THE OMISSIONS IN HER AUTHORIZATION
In her fourth issue, Heinzen argues that the statute of limitations should be tolled or the omissions in her notice and authorization should be excused because she suffered a loss of memory that prevented her from recalling all of the physicians who treated her for the condition of which she complains, and the physicians that treated her in the preceding five years. In support of her claim that she has memory loss since her hospitalization, Heinzen submitted her own affidavit and the affidavits of seven others.
Heinzen claims her "memory disability" is similar to a claim of "unsound mind." An unsound mind is a disability that tolls statutes of limitations under Chapter 16 of the of the Civil Practices and Remedies Code. See Grace v. Colorito, 4 S.W.3d 765, 769 (Tex. App.—Austin 1999, pet denied) (relying on section 16.001 of the Civil Practices and Remedies Code, which provides: "If a person entitled to bring a personal action is under a legal disability when the cause of action accrues, the time of the disability is not included in a limitations period." TEX. CIV. PRAC. & REM. CODE § 16.001).
Under Chapter 16 of the Code, the limitations period is tolled for persons of unsound mind for two reasons: (1) to protect persons without access to the courts and (2) to protect persons who are unable to participate in, control, or understand the progression and disposition of their lawsuit. Freeman v. Am. Motorists Ins. Co., 53 S.W.3d 710, 713 (Tex. App.—Houston [1st Dist.] 2001, no pet.).
Heinzen's argument fails because the limitations period for "health care liability claims" is governed by section 74.251 of the TMLA, not sections 16.001 and 16.003 of the Civil Practices and Remedies Code. See Dunn v. Clairmont Tyler, LP, 271 S.W.3d 867, 871-72 (Tex. App.—Tyler 2008, no pet.). The applicable section 74.251 of the TMLA provides:
(a) Notwithstanding any other law and subject to Subsection (b), no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed; provided that, minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim.TEX. CIV. PRAC. & REM. CODE. § 74.251 (emphasis added). Unlike Chapter 16 of the Civil Practices and Remedies Code, Chapter 74 and specifically section 74.251 contain no tolling provision for unsound mind or for any disability other than for minors under the age of twelve. Id. Therefore, other than the claims of a minor under the age of twelve, the statute of limitations period for health care liability claims applies to all persons regardless of minority or other legal disability. Broderick v. Universal Health Servs. Inc., No. 05-16-01379-CV, 2018 WL 1835689, at *4 (Tex. App.—Dallas Apr. 18, 2018, no pet.) (mem. op.).
Further, section 74.251 provides it applies "notwithstanding any other law." Therefore, section 74.251 controls over section 16.001 even if section 16.001 did apply. See Molinet v. Kimbrell, 356 S.W.3d 407, 413-14 (Tex. 2011) (section 74.251's "notwithstanding any other law" provision means that section 74.251 controls over the sixty-day claim revival provision of section 33.004(e) of the Civil Practices and Remedies Code for a claimant's time-barred claims against a responsible third party in a health care liability claim). Accordingly, even assuming Heinzen was disabled by memory loss, such disability would not toll the running of limitations under the controlling section 74.251.
We therefore overrule Heinzen's fourth issue.
IV. CONCLUSION
For these reasons, we affirm the trial court's judgment.
/s/ Margaret "Meg" Poissant
Justice Panel consists of Justices Wise, Jewell and Poissant.