Hampton v. Thome

Full title: Dorothy Hampton, Petitioner, v. Leonard Thome, Respondent

Court: Supreme Court of Texas

Date published: Mar 8, 2024

687 S.W.3d 496 (Tex. 2024)

Opinion

No. 22-0435

03-08-2024

Dorothy HAMPTON, Petitioner, v. Leonard THOME, Respondent

Diana L. Faust, Michelle E. Robberson, Dallas, Stacy T. Garcia, James B. Edwards, Stafford, Katherine Oncken, Summer Lee Frederick, for Respondent. Collin Don Cobb, Beaumont, for Petitioner.

Justice Blacklock delivered the opinion of the Court

On Petition for Review from the Court of Appeals for the Ninth District of Texas

Diana L. Faust, Michelle E. Robberson, Dallas, Stacy T. Garcia, James B. Edwards, Stafford, Katherine Oncken, Summer Lee Frederick, for Respondent.

Collin Don Cobb, Beaumont, for Petitioner.

Justice Blacklock delivered the opinion of the Court, in which Chief Justice Hecht, Justice Lehrmann, Justice Devine, Justice Busby, Justice Bland, Justice Huddle, and Justice Young joined.

The Legislature requires "[a]ny person … asserting a health care liability claim" to "give written notice of such claim" to certain defendants "at least 60 days before the filing of a suit." Tex. Civ. Prac. & Rem. Code § 74.051(a). The notice "must be accompanied by a medical authorization in the form specified by" section 74.052. Id. § 74.052(a). This medical authorization form enables the defendant to obtain the plaintiff’s medical records from other health care providers.

The notice required by section 74.051(a) can affect the statute of limitations as follows: "Notice given as provided in this chapter shall toll the applicable statute of limitations to and including a period of 75 days following the giving of the notice." Id. § 74.051(c). This Court held in Jose. Carreras, M.D., P.A. v. Marroquin that when a plaintiff gives the notice without a medical authorization form, the 75-day tolling period is unavailable. 339 S.W.3d 68, 74 (Tex. 2011).

In today’s case, the notice was accompanied by a medical authorization form closely resembling the one required by the Legislature. Relying on the tolling provision, the plaintiff filed suit outside the usual statute of limitations but within the 75-day tolling period offered by section 74.051(c). After discovery, the defendant contended that the plaintiff’s medical authorization form omitted some of the required health care providers and omitted a provision authorizing disclosure of information by the plaintiff’s future health care providers. The defendant argued that these deficiencies in the form meant that the 75-day tolling period never applied, which meant that sixteen months of litigation had all been for nothing because the suit was filed outside the limitations period. The trial court rejected this argument, but the court of appeals reversed, holding that the 75-day tolling period had all along been unavailable due to deficiencies in the medical authorization form file plaintiff served at the beginning of the case. Thome v. Hampton, 683 S.W.3d 22, 29-30 (Tex. App.—Beaumont 2022). [1–3] We hold that an imperfect medical authorization form is nevertheless a medical authorization form, which is sufficient to toll the statute of limitations for 75 days under section 74.051(c), The plaintiff in a health care liability claim has a statutory obligation to proactively notify the defendant of the health care providers required to be disclosed in the authorization form. A mistake or omission in this regard is not without consequence, and courts should certainly never countenance deliberate defiance of a statute’s clear commands. When it comes to calculating the deadline for filing suit, however, Texas law favors bright-line rules that enable parties and courts to know with certainty—as early in the litigation as possible—whether the suit is time-barred. Whatever imperfections or omissions existed in the plaintiff’s medical authorization form in this case, it was genuinely a medical authorization form resembling the one required by the Legislature, and the plaintiff served it with the notice of claim. This was sufficient, as we understand this statutory scheme, to trigger the 75-day tolling period, which means the suit was timely.

[4] Any defects or omissions in the medical authorization form that came to light during the litigation could have been adequately addressed by the statutory remedy of abatement, by additional discovery, or even—where departure from the statutory requirements is deliberate or in bad faith—by sanctions up to and including dismissal, The limitations period, however, is a threshold matter that should, whenever possible, be established with clarity at the outset, We do not understand Chapter 74 to require courts to entertain satellite litigation over whether the statute of limitations was actually never tolled because defects were later discovered in the plaintiff’s medical authorization form.

The judgment of the court of appeals is reversed, and the case is remanded to the court of appeals to consider the defendant’s remaining arguments for reversal of the district court’s judgment.

I.

On March 25, 2014, Dorothy Hampton went to the Medical Center of Southeast Texas with abdominal pain in her left side. She was diagnosed with an abdominal hernia, and she underwent surgery the next day. Two days later, Dr. Leonard Thome decided to release her from the hospital. That night, Hampton fell at home and was found on the floor the next day, confused and disoriented. She was quickly readmitted to the hospital, and when asked about the fall, Hampton claimed she could not remember the past 24 hours, Hampton was released to a nursing facility after several more days in the hospital.

On November 9, 2015, Hampton's lawyer sent a letter to Dr. Thome notifying him of Hampton’s intent to bring a health care liability claim alleging that Hampton was released prematurely from the hospital. The letter claimed that Hampton developed pain in her right shoulder after her fall and began treatment at Beaumont Bone and Joint Institute. Attached to the letter was a medical authorization form permitting Dr. Thome to obtain Hampton’s health information from the listed providers. See Tex. Civ. Prac. & Rem. Code § 74.052(e). The authorization form listed two providers—the Medical Center of Southeast Texas and Beaumont Bone and Joint Institute.

Hampton sued on May 31, 2016, alleging that Dr. Thome’s negligent decision to release Hampton from the hospital caused Hampton’s fall and led to permanent mental and physical injury. Because the events in question occurred in March 2014, the usual two-year time clock had run out by the time Hampton sued. Hampton’s petition, however, contended that her timely notice of the claim tolled the statute of limitations for 75 days under section 74.051(c) of the Civil Practice and Remedies Code.

After over a year of discovery, Dr. Thome moved in August 2017 for summary judgment on limitations grounds. He contended that the limitations period expired on March 28, 2016, and that Hampton’s notice had not tolled the statute of limitations because it was accompanied by a deficient medical authorization form. Dr. Thome alleged that the medical authorization form failed to meet three statutory requirements: (1) it omitted a required provision authorizing Dr. Thome to obtain records from providers who would treat Hampton after the date of the authorization form; (2) it did not list several providers who treated Hampton in connection with her alleged injuries; and (3) it did not list several providers who had treated Hampton in the five years preceding the incident.

The district court denied Dr. Thome’s motion for summary judgment. A jury trial proceeded on May 6, 2019. The jury found that Dr. Thome’s negligence proximately caused Hampton’s injuries and returned a $555,678 verdict. The court rendered a final judgment of $255,678, plus interest and costs, in keeping with the statutory limit on noneconomic damages for health care liability claims. See id. § 74.301. Dr. Thome filed a motion for judgment notwithstanding the verdict, in which he reiterated his argument that the claims were barred by limitations because of deficiencies in the medical authorization form. The court denied the motion, reasoning that Dr. Thome had not shown prejudice caused by the deficiencies in the form.

The court of appeals reversed. It held that the form Hampton provided to Dr. Thome was insufficient to trigger the 75-day tolling period because it fell "well short of authorizing Dr. Thome to obtain the scope of information he was entitled to obtain." 683 S.W.3d at 29. The court of appeals found that the form listed "only two of Hampton’s thirteen health care providers" that treated Hampton for her injuries or had seen her in the five-year period preceding the incident. Id. at 29. It further found that the form failed to include "language that extends [the release authorization] to health care providers that treated Hampton after the date Hampton signed the release" as directed by the statute. Id. The court of appeals held that tolling was unavailable because the defects in Hampton’s form were at least as severe as the defects identified in several other appellate decisions in which tolling was denied. Id. The court of appeals rendered judgment against Hampton because, with the tolling provision unavailable, the two-year statute of limitations barred her suit.

II.

[5] We begin by noting that Hampton’s lawyer could have insulated his client’s claims from any question of timeliness by filing suit within the usual two-year limitations period rather than relying on the statute’s 75-day tolling provision. Neither the record on appeal nor counsel’s statements at oral argument reveal any reason the extra 75 days were needed. By relying on the tolling provision, Hampton’s counsel added to the defendant’s arsenal of arguments in exchange for little apparent benefit to Hampton. Regardless of how this appeal is resolved, the decision to pin Hampton’s entire case on the availability of the 75-day tolling period has generated extensive additional litigation that remains pending seven years after the suit was filed and that could, it appears, have easily been avoided altogether by a slightly earli- er filing. Statutes of limitation are harsh, and the practice of waiting until the last conceivable moment to file a lawsuit is fraught with peril, particularly when the plaintiff relies on a tolling theory about which there is even the slightest doubt.

Be that as it may, the history of this litigation cannot be undone, and we must confront the question of what effect, if any, the deficiencies in Hampton’s medical authorization form have on the application of section 74.051(c)’s 75-day tolling period.

[6] As with any question of statutory interpretation, we begin with the statute’s text. Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 45 (Tex. 2015). "Health care liability claims" are subject to Chapter 74 of the Civil Practice and Remedies Code. Section 74.051(a) imposes a pre-suit notice requirement:

Any person or his authorized agent asserting a health care liability claim shall give written notice of such claim by certified mail, return receipt requested, to each physician or health care provider against whom such claim is being made at least 60 days before the filing of a suit in any court of this state based upon a health care liability claim. The notice must be accompanied by the authorization form for release of protected health information as required under Section 74.052.

Tex. Civ. Prac. & Rem. Code § 74.051(a). The statute of limitations for health care liability claims is two years. Id. § 74.251(a). Perhaps because the 60-day pre-suit notice requirement may have the practical effect of truncating the time available to a plaintiff to investigate and prepare his suit, the Legislature provided a brief tolling period:

Notice given as provided in this chapter shall toll the applicable statute of limitations to and including a period of 75 days following the giving of the notice, and this tolling shall apply to all parties and potential parties.

Id. § 74.051(c).

Section 74.052(a) reiterates section 74.051(a)’s requirement that a medical authorization form must accompany the pre-suit notice: "Notice of a health care claim under Section 74.051 must be accompanied by a medical authorization in the form specified by this section." It then provides an abatement remedy for the defendant when the plaintiff does not provide the required medical authorization:

Failure to provide this authorization along with the notice of health care claim shall abate all further proceedings against the physician or health care provider receiving the notice until 60 days following receipt by the physician or health care provider of the required authorization.

Id. § 74.052(a). Section 74.052 goes on to lay out, in great detail, the precise contents of the medical authorization form that must accompany the pre-suit notice. Id. § 74.052(c).

III.

Several years ago, this Court in Jose Carreras, M.D., P.A. v. Marroquin held that mere service of pre-suit notice without the required authorization form is insufficient to trigger the statute’s 75-day tolling provision. 339 S.W.3d at 74. In that case, the plaintiff’s failed to send any medical authorization form before the statute of limitations expired. Id. at 70. We held that a plaintiff must provide both the notice of claim and the medical authorization form to obtain tolling. Id. at 74. We did not, however, address whether notice accompanied by a medical authorization form that turns out to be incomplete or erroneous is sufficient to trigger tolling. Today’s case asks that question. Decisions of the courts of appeals on the question have varied. Some essentially hold that most errors or omissions in the authorization form render the 75-day tolling period unavailable. See, e.g., Borowski v. Ayers, 524 S.W.3d 292, 304-06 (Tex. App.—Waco 2016, pet. denied); Tanhui v. Rhodes-Madison, No. 12-20-00240-CV, 2021 WL 1916819, at *3 (Tex. App.—Tyler May 12, 2021, no pet.); Salinas v. Methodist Healthcare Sys., No. 07-19-00026-CV, 2019 WL 3807871, at *2-3 (Tex. App.—Amarillo Aug. 13, 2019, no pet.).

Other courts have looked to whether the deficiencies in the authorization form frustrate the defendant’s ability to conduct the pre-suit investigation envisioned by the statute. See, e.g., Davenport v. Adu-Lartey, 526 S.W.3d 544, 554 (Tex. App.—Houston [1st Dist.] 2017, pet. denied); Colia. v. Ewing, No. 02-19-00109-CV, 2020 WL 241978, at *3 (Tex. App.—Fort Worth Jan. 16, 2020, pet. denied). Yet another court has asked whether any errors or omissions in the medical authorization form ultimately prejudiced the defendant. Maypole v. Acadian Ambulance Serv., Inc., 647 S.W.3d 533, 550 (Tex. App.—Dallas 2022, pet. dism’d by agr.).^{1 1} One court of appeals found an authorization form sufficient for tolling purposes even though "the authorization forms excluded the doctors’ records who had treated her within five years of the treatment listed as forming the basis of the claim." Rabatin v. Kidd, 281 S.W.3d 558, 562 (Tex. App.—El Paso 2008, no pet.).

1 We granted the petition for review in Maypole and set the case for oral argument in conjunction with Hampton's case. The parties in Maypole, however, settled their differences before oral argument, and we dismissed the appeal at their request. See Tex R. App P. 42.1(a)(2).

1 "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…." Tex. Civ. Prac. & Rem. Code § 74.251(a).

[7, 8] While none of these decisions is an unreasonable application of Chapter 74 and this Court’s precedent, most of the approaches adopted by the courts of appeals share the same two drawbacks. First, they facilitate protracted litigation and appeals that embroil the litigants and the courts in lengthy and costly debates about the contents of a pre-suit discovery form rather than debates about the merits of the claims.^{2 2} Where possible, courts should seek to discourage non-merits satellite litigation of this nature unless a statute or the Constitution requires it. Second, the approach adopted by some courts of appeals subjects the statute of limitations to retroactive adjustment based on fact-intensive determinations made later in the litigation. But particularly "in the area of limitations, bright-line rules generally represent the better approach." Erikson v. Renda, 590 S.W.3d 557, 566 (Tex. 2019). Ideally, the deadline to sue should always be calculable with certainty at the outset of the case and should never vary retroactively depending on the outcome of later litigation. Perfect certainty at the outset may not always be possible, particularly when applying tolling provisions, but we should prefer clarity in this area whenever it can be had.

2 This case vividly demonstrates the problem: Sixteen months after the medical authorization form was served, after many months of discovery, the defendant first raised the argument that the suit must be dismissed on limitations grounds because the form was incomplete. We do not criticize the defense, which relied on several appellate decisions supporting its tactic. Yet here we are, over six years later, and the parties are still debating the sufficiency of the initial form rather than the merits of Hampton’s claims.

2 The required form is reprinted as an Appendix to this opinion.

Carreras provides a bright-line rule, which can be applied with certainty at the outset of the litigation: If no medical authorization form accompanies the notice, the 75-day tolling provision is not triggered. Yet what happens when there is a medical authorization form, but it turns out to be incomplete or erroneous? The existence of such deficiencies will often not be known until later in the litigation, sometimes much later. If Chapter 74’s text required courts to determine the limitations period by answering questions like whether the authorization form turns out to have omitted required providers or whether any such omissions prejudiced the defendant, then courts would be obligated to do so even if we think that such an approach increases wasteful litigation and blurs lines that are better left bright. By our reading, however, Chapter 74 contains no such requirement. Instead, it offers temporary abatement as a remedy for the plaintiff’s failure to disclose providers as required. And it requires only that a medical authorization form accompany the pre-suit notice, not that a perfect medical authorization form do so.

Begin with the tolling provision itself, section 74.051(c). The rule is simple: "Notice given as provided in this chapter shall toll the applicable statute of limitations [for 75 days]." It is thus the notice, not the medical authorization form, that triggers tolling. The authorization form is not irrelevant to the tolling question, however. Section 74.051(a) provides that the notice must "be accompanied by the authorization form … as required under Section 74.052."

Section 74.052(a) likewise dictates that the notice "must be accompanied by a medical authorization in the form specified by this section." Relying on these provisions, we held in Carreras that a notice without the required authorization form is not "[n]otice given as provided in this chapter" and therefore does not trigger tolling. 339 S.W.3d at 72-73.

[9, 10] The statute does not say how an incomplete or erroneous authorization form affects the tolling question.^{3 3} It does, however, contemplate that an authorization form may need to be "modified" after it has first been served. See Tex. Civ. Prac. & Rem. Code § 74.052(b). Of course, only a form that turns out to have been erroneous or incomplete in some respect would need to be modified. And when modification is necessary, the statute states the consequence—a 60-day abatement, at the request of the defendant:

3 The dissent says the Court is relying on "policy" or "purpose-based" arguments to achieve "a judicial rewriting of the statute." Post at 509 (Boyd, J., dissenting). Obviously not. We have rejected any such approach to statutory interpretation on many occasions, and we do so again today. Our disagreement with the dissent is not over statutory-interpretation methodology. Instead, the disagreement is over which questions this statute answers. The dissent believes, wrongly we think, that the statutory text tells us how an erroneous authorization form affects the tolling question. We conclude that the text does not answer that question, although as we explain below, the text does provide some indication that retroactive revocation of tolling for erroneous authorization forms is not its envisioned result. Trying to squeeze blood from an orange by forcing the text to definitively answer a question it does not answer is just as much "a judicial rewriting of the statute" as anything else. Answering a question the statutory text does not answer naturally may involve consideration of matters outside the text, such as the prudential notion that early and definitive identification of the limitations deadline is preferable, when possible, to protracted non-merits satellite litigation about the content of a discovery form.

3 The statute provides for temporary abatement in two circumstances. First, a claimant’s failure to provide the specified authorization form with the notice "shall abate all further proceedings" until sixty days after the provider defendant receives "the required authorization." Tex. Civ. Prac. & Rem. Code § 74.052(a). And second, if the claimant provides the required authorization but later modifies or revokes it, the provider defendant may choose to abate all proceedings until sixty days after the claimant provides a "replacement authorization" that complies "with the form specified" by Section 74.052(c). Id. § 74.052(b). If, as the Court contends, all that Section 74.052(c) requires is use of "the form specified" without regard to its contents, ante at 504, it would not be possible for a claimant to provide an "authorization required by this section" and then modify it and replace it with "the form specified by this section." The statute's reference to modification of the required form, in other words, must necessarily refer to the required contents, and not merely to the "form."

If the authorization required by this section is modified or revoked, the physician or health care provider to whom the authorization has been given shall have the option to abate all further proceedings until 60 days following receipt of a replacement authorization that must comply with the form specified by this section.

Id. ⁴ The statute states its own remedy for an incomplete or erroneous medical au- thorization form—abatement—and in the absence of a textual indication otherwise, we will not impose the additional remedy of deeming an incomplete or erroneous form to be no form at all for tolling purposes. Beyond the statutory remedy of abatement for additional discovery, sanctions may also be an appropriate response to deliberate evasion of the statutory requirements. But we see nothing in the statute indicating that an incomplete or erroneous medical authorization form should be considered no form at all for tolling purposes.

4 Similarly, the complete failure to provide an authorization form will "abate all further proceedings … until 60 days following receipt by the physician or health care provider of the required authorization." Tex. Civ. Prac. & Rem. Code § 74.052(a).

The distinction between an incomplete or erroneous form, as is the case here, and an altogether absent form, as was the case in Carreras, resembles a distinction on which we previously relied in Ogletree v. Matthews, another Chapter 74 case. 262 S.W.3d 316 (Tex. 2007). Section 74.351 requires a health care liability claimant to serve an expert report by a certain time. If the report is timely but deficient, the court can grant a 30-day extension to cure that deficiency. Tex. Civ. Prac. & Rem. Code § 74.351(c). In Ogletree, the defendant argued that the plaintiff should not get the 30-day extension because the expert report was of the wrong kind altogether; it contained testimony from nurses rather than from a physician. 262 S.W.3d at 318-19. Because no real "report" was served in the first place, the argument went, the court could not grant the 30-day extension. Id. We disagreed, because "a deficient report differs from an absent report." Id. at 320.

[11] Similar reasoning applies here. A partially inaccurate or incomplete medical authorization form is nevertheless a medical authorization form. And the medical authorization form proffered by Hampton, which resembles the statutorily required form, is "in the form specified by" section 74.052, even if its substance contains errors or omissions. Tex. Civ. Prac. & Rem. Code § 74.052(a) (emphasis added). We cannot say that the existence of errors or omissions in a medical authorization form means that no notice at all has been "given as provided in this chapter." Id. § 74.051(c). When no authorization form is offered at all, there has obviously been no attempt to give notice "as provided in this chapter." But when a medical authorization form has been served, and when this has generally been done "in the form specified by" section 74.052, then notice has been "given as provided in this chapter"—even if the substance of the form contains deficiencies.

[12] In the absence of more explicit guidance from the Legislature, we will not infer from this statutory scheme either (1) a rule that only fully accurate authorization forms trigger tolling, or (2) a rule that bars tolling if inaccuracies in the authorization form prejudice the defendant. The best indication provided by the statutory text is to the contrary. When the authorization form requires modification—as incomplete or erroneous forms naturally would—the statutory consequence is abatement to allow additional discovery, not revocation of tolling. See id. § 74.052(b); supra pp. 503-04.

[13] Although we hold that an incomplete or erroneous medical authorization form is still an authorization form for tolling purposes, we also acknowledge the possibility that a document proffered as a medical authorization form may be so grossly deficient on its face that it could never genuinely be called "a medical authorization in the form specified by this section." Id. § 74.052(a); cf. Ogletree, 262 S.W.3d at 323 (Willett, J., concurring) (ex- plaining that an expert report can be so grossly deficient as to be no report at all). No such gross deficiency is alleged here.

[14] Nor do we foreclose the possibility that an erroneous or incomplete authorization form proffered in a bad-faith attempt to mislead the defendant or the court should count as no authorization form at all under the old rule that "fraud vitiates whatever it touches." See Stonecipher’s Est. v. Butts’ Est., 591 S.W.2d 806, 809 (Tex. 1979) (quoting Morris v. House, 32 Tex. 492, 495 (1870)). Such egregious abuses will be rare, we trust, and trial courts are equipped to deal with them—whether by sanctions or by refusing tolling because no genuine authorization form has been served.

[15] For the vast majority of cases, the bright-line rule adopted herein should apply. If the pre-suit notice required by section 74.051 is accompanied by a medical authorization form that resembles the statutorily required form but that turns out to be erroneous or incomplete, the 75-day tolling period provided by section 74.051(c) remains available.

IV.

The judgment of the court of appeals is reversed, and the case is remanded to the court of appeals for further proceedings consistent with this opinion.

Justice Boyd filed a dissenting opinion.

Justice Boyd, dissenting.

Suppose you tell your neighbor, "I will give you a hundred dollars if you cut my grass this week." Your neighbor doesn’t cut your grass this week, but next week he asks you for the hundred dollars. "But you didn’t cut my grass last week," you protest. "Well," says your clever neighbor, "you didn’t say I wouldn’t get the money if I didn’t cut your grass!" True enough, you told him what he’d get if he cut your grass, but you didn’t say he wouldn’t get it if he didn’t.

According to the Court, you owe your neighbor a hundred dollars. The Texas Medical Liability Act tolls its two-year statute of limitation for 75 days if a claimant gives timely notice "accompanied by" a "specified" medical authorization form that identifies all of her health care providers. Tex. Civ. Prac. & Rem. Code §§ 74.051(c), .052(a). But it doesn’t say the claimant doesn’t get the tolling if the claimant fails to give the notice, or if the notice isn’t timely, or if the notice is not accompanied by the authorization form, or if the form fails to identify all of the claimant’s health care providers. According to the Court, it simply "does not answer that question." Ante at 503 n.3. But of course, it does. If a claimant doesn’t do what the statute says a claimant must do to get the tolling, that claimant doesn’t get the tolling.

Dorothy Hampton alleges Dr. Leonard Thome negligently released her from the hospital before he should have. But Hampton sued Thome more than two years after her claim accrued. As a result, the Texas Medical Liability Act’s statute of limitations bars her claim. See Tex. Civ. Prac. & Rem. Code § 74.251(a).^1a Hampton argues, however, that the limitations period was tolled for 75 days after she gave Thome written notice of her claim, and that she filed suit within that 75-day grace period. The Act provides that "[n]otice given as provided in this chapter shall toll the applicable statute of limitations to and including a period of 75 days following the giving of the notice." Id. § 74.051(c) (emphasis added). Notice "as provided" in Chapter 74 "must be accompanied by the authorization form for release of protected health information as required under Section 74.052." Id. (emphasis added). Section 74.052 requires "a medical authorization in the form specified by this section." Id. § 74.052(a) (emphasis added). It then "specifies" the form—not by describing it, but by providing it. In what can only be described as an uncommon statutory mandate, Section 74.052(c) states: "The medical authorization form required by this section shall be in the following form," and then sets forth the "specified" authorization form in its entirety. Id. § 74.052(c) (emphases added).^2a

By completing and providing the statutorily specified form, the claimant authorizes the defendant provider to "obtain and disclose," within specified parameters, specified health-care information for specified purposes. Id. A properly completed form requires any other medical provider who receives the form to produce the information specified in the form to the defendant provider. Id. By including numerous blanks and checkboxes, the form requires the claimant to provide her name and contact information, the name of the defendant provider who is authorized to obtain her records, the information she is authorizing to be disclosed, and the specific purposes for the disclosure. Id.

To specify the information she is and is not authorizing to be disclosed, the form requires the claimant to provide the names and addresses of three types of providers who possess her health-care information: (1) providers who have treated her for the injuries her claim is based on, (2) providers who have treated her during the five years before she received those injuries, and (3) providers she is excluding from the authorization because she contends the information they have regarding her health care "is not relevant" to her claim. Id. For the providers she is excluding from the authorization, the form requires her not only to provide their names, but to either "[l]ist" the "inclusive dates of examination, evaluation, or treatment to be withheld from disclosure," or to "state ‘none.’ " Id.

By giving claimants the opportunity to list providers who possess only irrelevant information, the form permits "claimants to exclude irrelevant and therefore privileged information from the scope of a release" and "to act as gatekeepers of their own privileged health information." In re Collins, 286 S.W.3d 911, 919 (Tex. 2009). But a claimant who wishes to exclude a provider from the authorization cannot simply omit the provider’s name from the form. Id. Instead, she must include the provider’s name and "[l]ist" the specified information. Tex. Civ. Prac. & Rem. Code § 74.052(c).

We have addressed Section 74.052(c) and the form it specifies in several prior cases. We have noted that by actually providing the form itself, the statute "detail[s]" the required authorization. Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 189 (Tex. 2012). It "prescribed" not just the "form" the claimant must use, but also the "precise language" the form must include. Collins, 286 S.W.3d at 913. In other words, it prescribes both "the form and content of the required authorization form." Jose Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 68, 69-70 (Tex. 2011) (emphasis added) (citing Tex. Civ. Prac. & Rem. Code § 74.052(c)). As we explained just last term, Section 74.052(c) does not merely require a claimant to deliver a particular form, it requires a claimant "to provide a medical authorization form identifying" her medical providers. In re Liberty Cnty. Mut. Ins. Co., 679 S.W.3d 170, 175-76 (Tex. 2023) (emphasis added).

We have already agreed that, to receive the benefit of the 75-day tolling period, a claimant "must provide both the statutorily required notice and the statutorily required authorization form." Carreras, 339 S.W.3d at 74. And the statutorily required authorization form requires the claimant to provide specific information, including the names of providers who have her healthcare information and billing records, even if the claimant thinks the information they have is irrelevant to her claims. Yet as the Court acknowledges, Hampton never provided the statutorily required authorization form. Instead, she provided a form in which she identified only two of her medical providers, omitting eleven providers the statutorily specified form required her to identify.

The most the Court can generously suggest is that the form she provided "closely resembl[es] the one required by the Legislature," ante at 498, yet it concedes that her form was "incomplete," "erroneous," and had "deficiencies" because it "omitted some of the required health care providers and omitted a provision authorizing disclosure of information by [Hampton’s] future health care providers." Id. at 498, 501-02. More specifically, it omitted several providers who treated her for the injuries on which she bases her claims against Thome and several providers who had treated her within the five years before those injuries. See id. at 499-500. She did not list those providers in the third category, claiming that the information they had about her is not relevant to her claims. Instead, she simply failed to identify them at all, even though the statutorily specified form required her to list them.

The Court attempts to provide some text-based reasons why Hampton’s form was good enough to trigger the 75-day tolling despite its failure to comply with the statutory requirements. First, the Court says, it’s "the notice, not the medical authorization form, that triggers tolling." Id. at 503. But in fact, it’s the notice "given as provided in this chapter" that triggers tolling and—as the Court concedes—"notice without the required authorization form is not ‘[n]otice given as provided in this chapter.’ " Id. at 503 (emphasis added) (quoting Carreras, 339 S.W.3d at 72-73).

But, the Court asserts, the statute merely requires "a" medical authorization form, not a "perfect" one, and it does not "say how an incomplete or erroneous authorization form affects the tolling question." Id. at 502-03. But of course, it does. It requires the claimant to complete the form expressly set forth in the statute itself, and that form requires the claimant to fill in blanks to identify her medical providers, whether they treated her for her claim-based injuries during the five years before those injuries or for matters having no relevance to her claim at all. And it clearly states that tolling is available only if the claimant timely provides the required notice accompanied by the specified authorization. Under the statute’s plain language, a claimant who fails to timely provide the required notice with the specified authorization form cannot rely on the tolling period.

As we have said, the statutorily specified form enables the defendant provider to have "access to the claimant’s pertinent medical records." Carreras, 339 S.W.3d at 71. In fact, the statute expressly states that all parties are "entitled to obtain complete and unaltered copies of the [claimant’s] medical records" from all other parties upon request, and it allows the claimant to provide the specified medical authorization "in the form required by Section 74.052" as a means of complying with that requirement. Tex. Civ. Prac. & Rem. Code § 74.051(d) (emphases added). In her pleadings, the claimant must confirm that she has "fully complied" with Section 74.052’s requirements. Id. § 74.051(b) (emphasis added). If she hasn’t provided the information the statutorily specified form requires her to provide, she has not fully complied with Section 74.052’s requirements.

Despite the statute’s plain language and despite what we’ve previously said in Texas West Oaks Hospital, Collins, Carreras, and Liberty County Mutual Insurance, the Court meekly suggests today that Section 74.052 merely prescribes use of " ‘the form specified’ by section 74.052," ante at 504, not the form’s "detail[s]," Tex. W. Oaks Hosp., 371 S.W.3d at 189, "precise language," Collins, 286 S.W.3d at 913, and "content" Carreras, 339 S.W.3d at 69-70, "identifying" the claimant’s providers, Liberty Cnty. Mut. Ins., 679 S.W.3d at 175-76. But of course, it does. The Court acknowledges, as it must, "the possibility that a document proffered as a medical authorization form may be so grossly deficient on its face that it could never genuinely be called ‘a medical authorization in the form specified by this section.’ " Ante at 504 (quoting Tex. Civ. Prac. & Rem. Code § 74.052(a)). But if all Section 74.052 requires is delivery of the "form" specified in Section 74.052(c), one that fails to identify any providers is as compliant as one that fails to identify a dozen, or a few, or even one. If, as the Court suggests, a grossly deficient form is not good enough but a slightly (or moderately?) deficient form is, courts will ultimately be required to draw a line somewhere between the two and figure out which side of that line any particular form falls on. Which means, of course, the Court’s "bright-line" rule is far blunder than the Court is willing to admit. Id. at 504-05.

Still purporting to rely on the statute’s text, the Court also suggests that the statute provides for "temporary abatement" as the sole "remedy for the plaintiff’s failure to disclose providers as required." Id. at 503.^3a That assertion concedes, of course, that the statute "require[s]" claimants to "disclose providers," contradicting the Court’s assertion that the statute merely requires delivery of the "form." But more importantly, we have already rejected the Court’s argument about abatement.

The claimants in Carreras made the same argument the Court makes today: that "service of an authorization form is unnecessary to toll the statute of limitations because a separate remedy—abatement—is provided for failure to accompany notice with an authorization form." Carreras, 339 S.W.3d at 73. We expressly rejected that argument in Carreras, ex- plaining that the abatement provisions apply only when a claimant provides notice of her claim before limitations runs, so that tolling is neither necessary nor required:

[A]batement has a use in situations in which the tolling provision is not at issue. If notice is provided without an authorization well within the statute of limitations, and the case could be filed sixty days later and still fall within the limitations period, the defendant’s statutory remedy is to halt proceedings until an authorization form is received. The abatement remedy fulfills that purpose.

Id. at 73-74.

As the Court notes, we addressed in Carreras the issue of whether tolling is available when the claimant fails to serve an authorization form at all, as opposed to an authorization "as required" by Section 74.052(c). But with regard to the statute’s abatement provisions, that distinction is irrelevant. Section 74.052 treats the failure to provide an authorization form the same as the provision of an authorization form that requires modification. See Tex. Civ. Prac. & Rem. Code §§ 74.052(a), (b). Both warrant abatement. In either case, the claimant’s failure to provide a form or her provision of an incomplete form results in abatement only if the claimant provided the notice and filed suit before the two-year limitations period expired, making the tolling provision irrelevant. See Carreras, 339 S.W.3d at 73. If tolling is at issue—because the plaintiff relied on the 75-day tolling and filed after limitations expired but served an incomplete or erroneous medical authorization form—abatement would not be a remedy. See id. at 73-74. Instead, as would occur with a failure to provide any medical authorization at all, tolling would not be available. See id. at 72.

Beyond its text-based arguments, the Court relies on several policy- or purpose-based arguments. But we are dealing with a statute of limitations, not a common-law requirement we may revoke or modify based on policy preferences. None of the Court’s policy concerns justifies a judicial rewriting of the statute or ignoring the requirements of "the form specified" in Section 74.052(c). Maybe "Texas law" (meaning this Court? Texas courts generally? The Legislature?) "favors bright-line rules that enable parties and courts to know with certainty—as early in the litigation as possible—whether the suit is time-barred." Ante at 499. But even if so, that’s irrelevant to the question of whether this statute imposes the kind of "bright-line rule" the Court prefers. The same is true about the Court’s preference that limitations periods should be "a threshold matter that should, whenever possible, be established with clarity at the outset." Id. at 499. Maybe they should be, but whether this one is depends on the statute’s requirements, not on what we think it should (or should not) require.

I suspect that, as a Court, we do in fact prefer to minimize "satellite" and "protracted" litigation and appeals, and we may even think limitations deadlines "should always be calculable with certainty at the outset of the case." Id. at 499, 502-03. Considering the line-drawing the Court’s approach requires to determine whether a particular authorization form is "deficient" enough, however, its approach does little to promote those purposes. Nor does it promote the purposes we’ve previously said the authorization requirement promotes—to "provide[ ] an opportunity for health care providers to investigate claims and possibly settle those with merit at an early stage," and to "reduc[e] the costs of health care liability claims" by enabling provider defendants to obtain relevant medical records from non-party health care providers without having to rely on the "use of subpoenas or other formal mandatory processes," Collins, 286 S,W.3d at 910-18. Section 74.052 cannot promote those purposes if it doesn’t require a claimant to complete "the form specified" by identifying her medical providers in the blanks the specified form provides for that purpose.

As the Court acknowledges, statutes of limitations can indeed be harsh. Ante at 500-01. And as applied to this case, this one would be if we applied the statute as written. By providing the 75-day tolling period, the Legislature offers some leeway for some claimants, but only those who are willing and able to provide the information the statutorily specified authorization form requires. A claimant who is unwilling or unable to provide the information does not lose her claim for that reason. She simply loses the ability to rely on the 75-day tolling period and must bring her claims within the applicable statute of limitations, like most all other claimants must do. As the Court acknowledges, Hampton’s dilemma "could, it appears, have easily been avoided altogether by a slightly earlier filing." Ante at 500-01.

For these reasons, I respectfully dissent.

APPENDIX

AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION

Patient Name: ______

Patient Date of Birth: _____

Patient Address: _________________

Street ______ City, State, ZIP

Patient Telephone: _____

Patient E-mail: ______

NOTICE TO PHYSICIAN OR HEALTH CARE PROVIDER: THIS AUTHORIZATION FORM HAS BEEN AUTHORIZED BY THE TEXAS LEGISLATURE PURSUANT TO SECTION 74.052, CIVIL PRACTICE AND REMEDIES CODE. YOU ARE REQUIRED TO PROVIDE THE MEDICAL AND BILLING RECORDS AS REQUESTED IN THIS AUTHORIZATION.

A. I, ____ (name of patient or authorized representative), hereby authorize _____ (name of physician or other health care provider to whom the notice of health care claim is directed) to obtain and disclose (within the parameters set out below) the protected health information and associated billing records described below for the following specific purposes (check all that apply):

[ ] To facilitate the investigation and evaluation of the health care claim described in the accompanying Notice of Health Care Claim.

[ ] Defense of any litigation arising out of the claim made the basis of the accompanying Notice of Health Care Claim.

[ ] Other - Specify: _____

B. The health information to be obtained, used, or disclosed extends to and includes the verbal as well as written and electronic and is specifically described as follows:

1. The health information and billing records in the custody of the physicians or health care providers who have examined, evaluated, or treated _____ (patient) in connection with the injuries alleged to have been sustained in connection with the claim asserted in the accompanying Notice of Health Care Claim.

Names and current addresses of treating physicians or health care providers:

1.__________

2.__________

3.__________

4.__________

5.__________

6.__________ 7.__________

8.__________

This authorization extends to an additional physician or health care provider that may in the future evaluate, examine, or treat ______(patient) for injuries alleged in connection with the claim made the basis of the attached Notice of Health Care Claim only if the claimant gives notice to the recipient of the attached Notice of Health Care Claim of that additional physician or health care provider;

2. The health information and billing records in the custody of the following physicians or health care providers who have examined, evaluated, or treated _____ (patient) during a period commencing five years prior to the incident made the basis of the accompanying Notice of Health Care Claim.

Names and current addresses of treating physicians or health care providers, if applicable:

1.__________

2.__________

3.__________

4.__________

5.__________

6.__________

7.__________

8.__________

c. Exclusions

1. Providers excluded from authorization.

The following constitutes a list of physicians or health care providers possessing health care information concerning ______ (patient) to whom this authorization does not apply because I contend that such health care information is not relevant to the damages being claimed or to the physical, mental, or emotional condition of ______ (patient) arising out of the claim made the basis of the accompanying Notice of Health Care Claim. List the names of each physician or health care provider to whom this authorization does not extend and the inclusive dates of examination, evaluation, or treatment to be withheld from disclosure, or state "none":

1.__________

2.__________

3.__________

4.__________

5.__________

6.__________

7.__________

8.__________

2. By initialing below, the patient or patient’s personal or legal representative excludes the following information from this authorization:

______ HIV/AIDS test results and/or treatment

______ Drug/alcohol/substance abuse treatment

______ Mental health records (mental health records do not include psychotherapy notes)

______ Genetic information (including genetic test results)

D. The persons or class of persons to whom the patient’s health information and billing records will be disclosed or who will make use of said information are:

1. Any and all physicians or health care providers providing care or treatment to _____ (patient);

2. Any liability insurance entity providing liability insurance coverage or defense to any physician or health care provider to whom Notice of Health Care Claim has been given with regard to the care and treatment of _____ (patient); 3. Any consulting or testifying experts employed by or on behalf of ______ (name of physician or health care provider to whom Notice of Health Care Claim has been given) with regard to the matter set out in the Notice of Health Care Claim accompanying this authorization;

4. Any attorneys (including secretarial, clerical, experts, or paralegal staff) employed by or on behalf of (name of ______ physician or health care provider to whom Notice of Health Care Claim has been given) with regard to the matter set out in the Notice of Health Care Claim accompanying this authorization;

5. Any trier of the law or facts relating to any suit filed seeking damages arising out of the medical care or treatment of ______ (patient).

E. This authorization shall expire upon resolution of the claim asserted or at the conclusion of any litigation instituted in connection with the subject matter of the Notice of Health Care Claim accompanying this authorization, whichever occurs sooner.

F. I understand that, without exception, I have the right to revoke this authorization at any time by giving notice in writing to the person or persons named in Section B above of my intent to revoke this authorization. I understand that prior actions taken in reliance on this authorization by a person that had permission to access my protected health information will not be affected. I further understand the consequence of any such revocation as set out in Section 74.052, Civil Practice and Remedies Code.

G. I understand that the signing of this authorization is not a condition for continued treatment, payment, enrollment, or eligibility for health plan benefits.

H. I understand that information used or disclosed pursuant to this authorization may be subject to redisclosure by the recipient and may no longer be protected by federal HIPAA privacy regulations.

Name of Patient

_______

Signature of Patient/Personal or Legal Representative

_______

Description of Personal or Legal Representative’s Authority

_______

Date

_______