Opinion
01-21-00132-CV
09-01-2022
SHERION NOLDEN, Appellant v. CRESCENT HEALTH AND REHABILITATION CENTER, Appellee
On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Case No. 20-DCV-276315
Panel consists of Justices Hightower, Countiss, and Guerra.
MEMORANDUM OPINION
JULIE COUNTISS, JUSTICE
Appellant, Sherion Nolden, challenges the trial court's order granting the motion to dismiss the health care liability claims against appellee, Crescent Health and Rehabilitation Center ("Crescent"), in Nolden's suit against Crescent for "[m]edical [n]egligence," "[m]edical [b]attery," and "[b]reach of [c]ontract to [c]ure." In three issues, Nolden contends that the trial court erred in granting Crescent's motion to dismiss.
See Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) (defining "[h]ealth care liability claim" (internal quotations omitted)).
We modify the trial court's order and affirm as modified.
Background
In her original petition, filed on September 1, 2020, Nolden alleged that she "was admitted to [Crescent] for continued wound care and treatment after suffering a poisonous spider bite." While at Crescent, she was completely dependent "on the [Crescent] staff . . . for all required medical treatments" as well as "her basic needs." But Crescent did not follow her "treatment plan," and she was discharged from Crescent "without her consent" and "in violation of the Federal Patient Bill of Rights." Shortly before her discharge, "a [m]ale resident at [Crescent]" attacked Nolden with a knife. Crescent staff "had notice of" and witnessed the attack. But Crescent "failed to . . . provide adequate protection" for Nolden. And, according to Nolden, Crescent "expose[d] her to another incident of assault and battery" by the same "[m]ale resident" in "the [p]hysical [t]herapy room while she was taking treatment." After that second incident, Crescent, "protecting the male [resident] attacker," "immediately discharge[d] [Nolden] without her consent" and "withh[eld] treatment of [Nolden's spider-bite] wounds," [p]hysical [t]herapy," and "other medical rehabilitation services."
Nolden further alleged that her condition deteriorated after Crescent discharged her. Her "spider bite wounds" became infected. Nolden was "forced to endure excruciating pain and needless suffering with no medical treat[ment]" until she was able to obtain at-home physical therapy, wound care and psychiatric treatment. By that time, her infected spider-bite wounds "required, among other things, several extensive and painful debridement[s]."
Nolden brought claims against Crescent for "[m]edical [n]egligence," "[m]edical [b]attery," and "[b]reach of [c]ontract to [c]ure." She asserted that Crescent was negligent in: (1) "failing to institute the appropriate interventions to prevent" her spider-bite wounds from becoming worse; (2) "failing to appropriately treat [her spider-bite] wounds according to the [p]hysician [t]reatment [p]lan"; and (3) "failing to provide a sufficiently trained and supervised staff" and to "have policies" in place to protect her from the male resident's attacks. Further, Nolden asserted that Crescent was liable, based on a theory of respondeat superior, for the actions of "the nurses and other healthcare providers at [Crescent]."
In her original petition, Nolden stated that she had provided Crescent with "written notice of [her] claims as required by Texas Civil Practice [and] Remedies Code [section] []74.051." Nolden sought damages for mental anguish, physical pain and suffering, physical impairment, emotional distress, and "reasonable and necessary medical, hospital, and nursing expenses." Nolden also, alleging that Crescent's conduct "constitute[d] malice and gross [n]egligence," sought exemplary damages.
See id. § 74.051 ("Notice").
In response to Nolden's original petition, Crescent filed a combined answer, special exceptions, and motion to dismiss. Crescent generally denied the allegations in Nolden's petition and asserted certain affirmative defenses, including that Nolden's claims were barred by the applicable statute of limitations. And Crescent specially excepted to, among other things, Nolden's failure to attach or incorporate into her original petition a showing that she satisfied the "condition precedent" of providing to Crescent a "statutorily mandated notice of claim."
See id. § 74.251(a) (providing health care liability claim must be "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").
See id. § 74.051(a), (b) (providing "[a]ny person or h[er] 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 claims [are] being made at least [sixty] days before the filing of a suit in any court of this [S]tate based upon a health care liability claim" and "[i]n such pleadings as are subsequently filed in any court, each party shall state that [she] has fully complied with the provisions of this section . . . and shall provide such evidence thereof"); see also id. § 74.052(a), (c).
In its motion to dismiss, Crescent argued that Nolden's claims against it had no basis in law or fact because they were barred by the applicable statute of limitations. According to Crescent, Nolden, in her original petition, alleged that she had sustained injuries during her stay as a patient at Crescent from February 6, 2018 through March 2, 2018. Yet Nolden did not file suit against Crescent until September 1, 2020. Texas Civil Practice and Remedies Code section 74.251(a) requires that a health care liability claim be brought "within two years from the occurrence of the breach or tort or from the date of the medical or health care treatment that is the subject of the claim." (Internal quotations omitted.) A health care liability claim is any cause of action against a health care provider "for treatment, lack of treatment, or other claimed departure from accepted standard of medical care, or healthcare, or safety or professional or administrative services directly related to healthcare, which proximately results in injury or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract."(Internal quotations omitted.) Because Nolden's claims constituted health care liability claims, they were subject to the two-year statute of limitations found in Texas Civil Practice and Remedies Code section 74.251(a).
See id. § 74.251(a).
See id. § 74.001(a)(13) (defining "[h]ealth care liability claim" (internal quotations omitted)).
Crescent further argued that because the "last possible day [Crescent] could have treated [Nolden]" was March 2, 2018-the date of Nolden's discharge from Crescent-the "last date" that Nolden could have timely filed her health care liability claims against Crescent was on March 2, 2020, six months before Nolden filed suit in this case. Thus, Nolden's claims against Crescent were barred by the statute of limitations. Anticipating that Nolden would "rely upon the exception to the two[-]year statute of limitations" contained in Texas Civil Practice & Remedies Code section 74.051(c) "to allege that the statute of limitations should have been tolled by [seventy-five] days," Crescent also asserted that Nolden had "failed to provide" the proper "notice of [her] claim[s] or [medical] authorization" and thus "was not entitled to the tolling exception" provided by section 74.051(c).
See id. §§ 74.051(a), (c) (providing when "written notice of" health care liability claim is properly given, along with "the authorization form for release of protected health information," "[n]otice . . . shall toll the applicable statute of limitations to and including a period of [seventy-five] days following the giving of the notice"), 74.052(a), (c); see also Carreras v. Marroquin, 339 S.W.3d 68, 74 (Tex. 2011) ("[F]or the statute of limitations to be tolled in a health care liability claim pursuant to [Texas Civil Practice and Remedies Code] [c]hapter 74, a plaintiff must provide both the statutorily required notice and the statutorily required [medical] authorization form.").
Crescent attached to its combined answer, special exception, and motion to dismiss a "[f]ace [s]heet," which was a business record generated by Crescent. The "[f]ace [s]heet" showed that Nolden was admitted to Crescent on February 6, 2018 and discharged on March 2, 2018. The "[f]ace [s]heet" also contained general information about Nolden's health and medical history. It identified her primary care physician, her health insurance coverage, and her medical diagnosis at the time she was a patient at Crescent.
Nolden did not file a written response to Crescent's motion to dismiss.Instead, the day before the hearing on the motion to dismiss, Nolden filed an amended petition. In her amended petition, Nolden stated that "[p]ursuant to Tex[as] Civ[il] Prac[tice] [and] Rem[edies] Code [s]ection 74.051 and 74.052, [Nolden had] served pre-suit notice before the filing of th[e] petition," which tolled the statute of limitations "for a period of seventy-five . . . days following the service of the described pre-suit notice." And, in addition to a medical negligence claim, Nolden brought claims against Crescent for negligent hiring and retention, premises liability, breach of contract, conspiracy to commit assault, and fraudulent misrepresentation. As evidence of notice, Nolden attached to her amended petition certain letters from her attorney, dated September 25, 2019, which were purportedly sent to Crescent's address.
See Tex. R. Civ. P. 91a.4 (requiring any response to rule 91a motion to dismiss to be filed "no later than 7 days before the date of the hearing").
But see id. 91a.5(b) (permitting respondent to amend cause of action "at least 3 days before the date of the hearing").
At the hearing on its motion to dismiss, Crescent argued that the trial court should grant its motion to dismiss because the statute of limitations barred Nolden's claims against Crescent. Crescent asserted that the limitations period had run on Nolden's health care liability claims on March 2, 2020, two years from the date that she was discharged from Crescent, but Nolden did not file her original petition until September 1, 2020. Crescent also objected to the untimely filing of Nolden's amended petition.
Crescent asserted that all the claims alleged by Nolden, whether in her original petition or in her amended petition, constituted health care liability claims. Crescent observed that Nolden had "attached" to the amended petition "what appear[ed] to be notices" to certain agents of Crescent dated September 25, 2019. But Crescent denied having received those notices and argued that even if the notices had been received, they were defective and did not toll the statute of limitations because "they [did] not include the required medical authorization." And Crescent maintained that "[e]ven with the [seventy-five]-day tolling period, [Nolden] still filed [her original petition] four months" too late, so "there [was] no argument . . . that [her suit] was filed timely."
See Tex. Civ. Prac. & Rem. Code Ann. § 74.052(a), (c); see also id. § 74.051(a) "written notice" of health care liability claim "must be accompanied by the authorization form for release of protected health information"); Carreras, 339 S.W.3d at 74 ("[F]or the statute of limitations to be tolled in a health care liability claim pursuant to [Texas Civil Practice and Remedies Code [c]hapter 74, a plaintiff must provide both the statutorily required notice and the statutorily required authorization form.").
Nolden responded that the seventy-five-day tolling provision provided by Texas Civil Practice and Remedies Code section 74.051(c) applied to her claims, and the Texas Supreme Court's Emergency Orders Regarding the COVID-19 State of Disaster, the first of which was issued on March 13, 2020, further extended the limitations period applicable to her claims, making her suit timely.
See Supreme Court of Texas, First Emergency Order Regarding the COVID-19 State of Disaster, 596 S.W.3d 265, 265 (Tex. 2020) (issued on March 13, 2020 and providing: "All courts in Texas may extend the statute of limitations in any civil case for a stated period ending no later than 30 days after the [Texas] Governor's state of disaster has been lifted"). The Governor's state of disaster declaration was still in effect when Nolden filed her original petition on September 1, 2020. See generally Supreme Court of Texas, Twenty-Fifth Emergency Order Regarding the COVID-19 State of Disaster, 609 S.W.3d 133, 133 (Tex. 2020) (issued on September 17, 2020); Supreme Court of Texas, Twenty-Fourth Emergency Order Regarding the COVID-19 State of Disaster, 609 S.W.3d 132, 132-33 (Tex. 2020) (issued on August 21, 2020 and stating: "[Texas] Governor Abbott has declared a state of disaster in all 254 counties in the State of Texas in response to the imminent threat of the COVID-19 pandemic"); see also Ex parte Boyd, No. 03-20-00395-CR, 2022 WL 1144707, at *1 n.2 (Tex. App.-Austin Apr. 18, 2022, no pet.) (mem. op.) (noting, as of April 18, 2022, "the [Texas] Governor's state of disaster declaration ha[d] not been lifted").
Following the parties' arguments, the trial court asked Nolden's trial counsel if she agreed that the required medical authorization "was not submitted" with the notices sent to Crescent. Nolden's trial counsel responded, "Your Honor, it does appear that the authorization was not submitted. We gave the notice of the lawsuit to [Crescent] and [its] agents; but the actual two-page authorization sheet, it appears was not included."
The trial court granted Crescent's motion and dismissed Nolden's claims against Crescent with prejudice.
Standard of Review
Texas Rule of Civil Procedure 91a allows a party to move for early dismissal of a cause of action against it. See Tex. R. Civ. P. 91a; Ball v. City of Pearland, No. 01-20-00039-CV, 2021 WL 4202179, at *2 (Tex. App.-Houston [1st Dist.] Sept. 16, 2021, no pet.) (mem. op.). A trial court may dismiss a cause of action under rule 91a only if "it has no basis in law or fact." Tex.R.Civ.P. 91a.1; Ball, 2021 WL 4202179, at *2. "A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought." Tex.R.Civ.P. 91a.1; see also Ball, 2021 WL 4202179, at *2. We review a trial court's decision on a rule 91a motion to dismiss de novo. See Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 654 (Tex. 2020); Malik v. GEICO Advantage Ins. Co., No. 01-19-00489-CV, 2021 WL 1414275, at *4 (Tex. App.-Houston [1st Dist.] Apr. 15, 2021, pet. denied) (mem. op.).
Texas Rule of Civil Procedure 91a "permits motions to dismiss based on affirmative defenses." Bethel, 595 S.W.3d at 656; see also In re Springs Condos., L.L.C., No. 03-21-00493-CV, 2021 WL 5814292, at *3 (Tex. App.-Austin Dec. 8, 2021, orig. proceeding) (mem. op.) (trial court could grant rule 91a motion to dismiss claims based on "limitations grounds"). In ruling on a rule 91a motion to dismiss, the trial court "may not consider evidence" and "must decide the motion based solely on the pleading of the cause of action, together with any pleading exhibits" permitted by the Texas Rules of Civil Procedure. Tex.R.Civ.P. 91a.6; see also Bethel, 595 S.W.3d at 654. But "[i]n deciding a [r]ule 91a motion, a court may consider the defendant's pleadings if doing so is necessary to make the legal determination of whether an affirmative defense is properly before the court." Bethel, 595 S.W.3d at 656. A trial court may grant a rule 91a motion to dismiss based on an affirmative defense if it meets the rule's standard. Id. If an affirmative defense cannot "be conclusively established by the facts in [the] plaintiff's petition" and requires consideration of evidence, "such [a] defense[] [is] not a proper basis for a [rule 91a] motion to dismiss." Id.; see also In re Springs Condos., 2021 WL 5814292, at *3.
Health Care Liability Claims
In her first and second issues, Nolden argues that the trial court erred in granting Crescent's motion to dismiss because certain "contract and tort claims" alleged in her amended petition were not health care liability claims and were not barred by the statute of limitations found in Texas Civil Practice and Remedies Code section 74.251(a).
The Texas Medical Liability Act ("TMLA") defines a "[h]ealth care liability claim" as
a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract.Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) (internal quotations omitted). To determine if Nolden alleged health care liability claims against Crescent, we look to her live pleading before the trial court. See Randol Mill Pharmacy v. Miller, 465 S.W.3d 612, 616 & n.4 (Tex. 2015); Fails v. Basse, No. 07-08-00445-CV, 2010 WL 877537, at *2 (Tex. App.-Amarillo Mar. 11, 2010, pet. denied) (mem. op.) (reviewing plaintiff's live pleading to determine if claims constituted health care liability claims). We note that a plaintiff cannot use artful pleading to avoid the application of the TMLA and chapter 74 when the essence of her suit is a health care liability claim. Med. Hosp. of Buna Tex., Inc. v. Wheatley, 287 S.W.3d 286, 291-92 (Tex. App.-Beaumont 2009, pet. denied).
A plaintiff's timely filed amended pleading supersedes all previous pleadings and becomes the controlling petition in the case regarding the theories of recovery. Elliot v. Methodist Hosp., 54 S.W.3d 789, 793-94 (Tex. App.-Houston [1st Dist.] 2001, pet. denied). Here, Nolden looks to her amended petition to assert that she did not allege health care liability claims against Crescent. But to be timely, Nolden was required to amend her petition "at least 3 days before the date of the hearing" on Crescent's motion to dismiss. Tex.R.Civ.P. 91a.5(b); Dailey v. Thorpe, 445 S.W.3d 785, 788-89 (Tex. App.-Houston [1st Dist.] 2014, no pet.) (noting plaintiff may choose to "timely amend" her pleadings under rule 91a); see also Goswami v. Metro. Sav. & Loan Ass'n, 751 S.W.2d 487, 490 (Tex. 1988) (leave of court required to file pleading within seven days of summary-judgment hearing or thereafter); Brumfield v. Williamson, 634 S.W.3d 170, 211 (Tex. App.-Houston [1st Dist.] 2021, pet. denied). Nolden, however, did not amend her petition until the day before the trial court's hearing. Crescent objected to Nolden's amended petition as untimely, and Nolden did not ask the trial court for leave to file her amended petition. Nothing in the trial court's order granting Crescent's motion to dismiss supports a conclusion that the trial court considered Nolden's amended petition in ruling on Crescent's motion. See Tex. R. Civ. P. 91a.5(c) (trial court "must not consider . . . [an] amendment not filed as permitted"); Estate of Savana, 529 S.W.3d 587, 593 (Tex. App.-Houston [14th Dist.] 2017, no pet.) ("Rule 91a requires the trial court to rule on a motion to dismiss without considering any untimely . . . amendment." (emphasis omitted)); In Guardianship of Peterson, 01-15-00567-CV, 2016 WL 4487511, at *6 (Tex. App.-Houston [1st Dist.] Aug. 25, 2016, no pet.) ("In ruling on a [r]ule 91a motion, a trial court is specifically prohibited from considering an amendment that was not filed at least three days before the date of the hearing on the motion."). Because Nolden did not timely file her amended petition, the trial court was not permitted to consider it in ruling on the motion to dismiss. Thus, we must look to Nolden's original petition to determine if her claims against Crescent constituted health care liability claims.
Even if Crescent's motion to dismiss is construed as a motion for summary judgment, see infra, Nolden was required to amend her petition at least seven days before the trial court's hearing on Crescent's motion. See Tex. R. Civ. P. 63; Rose Trading, LLC v. Wei, No. 05-21-00232-CV, 2021 WL 5754810, at *2 (Tex. App.- Dallas Dec. 3, 2021, pet. filed) (mem. op.). If Nolden wanted to amend her petition within seven days of the hearing, she was required to obtain leave of court. See Tex. R. Civ. P. 63; Rose Trading, 2021 WL 5754810, at *2. An amended petition filed late and without leave is not before the court where nothing in the trial court's order granting Crescent's motion supports a conclusion that the trial court considered Nolden's amended petition in ruling on Crescent's motion. See McIntyre v. Wilson, 50 S.W.3d 674, 684 (Tex. App.-Dallas 2001, pet. denied).
In her original petition, Nolden alleged that Crescent was a rehabilitation and treatment facility that she was admitted to for "wound care and treatment" following a "poisonous spider bite." According to Nolden, her "case ar[ose] out of the negligence of" Crescent "[s]uffered by" Nolden in connection with the wound care and treatment she received as a patient at Crescent as well as Crescent's "fail[ure] to satisfactorily . . . protect[]" Nolden while she was a patient at Crescent. Nolden brought claims against Crescent for "[m]edical [n]egligence," "[m]edical [b]attery," and "[b]reach of [c]ontract to [c]ure," asserting that Crescent was negligent in (1) "failing to institute the appropriate interventions to prevent" Nolden's spider-bite wounds from becoming worse; (2) "failing to appropriately treat [Nolden's spider-bite] wounds according to the [p]hysician [t]reatment [p]lan"; and (3) "failing to provide a sufficiently trained and supervised staff" and to "have policies" in place to protect [Nolden] from the male resident's attacks. See Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) (defining "[h]ealth care liability claim" (internal quotations omitted)); see also Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 848 (Tex. 2005) (in determining whether claim constitutes health care liability claim, court must "examine the underlying nature of the claim and [is] not bound by the form of the pleading"); City of Houston v. Hussein, No. 01-18-00683-CV, 2020 WL 6788079, at *12 (Tex. App.-Houston [1st Dist.] Nov. 19, 2020, pet. denied) (mem. op.) (stating "[the] three basic elements" to consider in "determining whether a plaintiff's claim constitutes a health care liability claim" and noting "[t]he TMLA creates a rebuttable presumption that a plaintiff's claim is a health care liability claim if it is brought against a physician or health care provider and is based on facts implicating the defendant's conduct during the course of a patient's care, treatment, or confinement" (internal quotations omitted)). Nolden did not assert in the trial court and does not assert on appeal that any of the claims she alleged in her original petition do not constitute health care liability claims.
Apparently recognizing that she had pleaded health care liability claims, Nolden alleged in her original petition that she had "provided [Crescent] written notice of [her] claims" as required by the TMLA. See Tex. Civ. Prac. & Rem. Code Ann. § 74.051(a), (b).
Because Nolden has conceded that the claims alleged in her original petition constitute health care liability claims, we conclude that the TMLA applies to her claims, including the statute-of-limitations provision found in Texas Civil Practice and Remedies Code section 74.251(a). See Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a) (providing health care liability claim must be "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"). Thus, we hold that the trial court did not err in granting Crescent's motion to dismiss because of the nature of Nolden's claims. Cf. Kim v. Hoyt, 399 S.W.3d 714, 717 (Tex. App.-Dallas 2013, pet. denied) (where plaintiff conceded his claims constituted health care liability claims, only question remaining was whether he had complied with provisions of TMLA) We overrule Nolden's first and second issues.
Dismissal
In her third issue, Nolden argues that the trial court erred in granting Crescent's motion to dismiss because her claims were not barred by the applicable statute of limitations.
We first consider whether the allegations in the parties' live pleadings, taken as true, together with inferences reasonably drawn from them, support the trial court's conclusion that Nolden's claims were barred by the applicable statute of limitations. Tex.R.Civ.P. 91a.1, 91a.6; see also Bethel, 595 S.W.3d at 654.
A health care liability claim is governed by a two-year statute of limitations. See Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a); Kovaly v. Kuruvanka, 497 S.W.3d 539, 544 (Tex. App.-Houston [1st Dist.] 2016, pet. denied). Specifically, Texas Civil Practice and Remedies Code section 74.251(a) provides that a health care liability claim must be brought "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 Ann. § 74.251(a); see also Davenport v. Adu-Lartey, 526 S.W.3d 544, 551 (Tex. App.-Houston [1st Dist.] 2017, pet. denied).
Nolden argues that because she served Crescent with notice, as required by Texas Civil Practice and Remedies Code section 74.051(a), the statute of limitations was tolled for a seventy-five-day period and the statute of limitations was also extended by the Texas Supreme Court's Emergency Orders Regarding the COVID-19 State of Disaster; thus, making her suit timely. See Tex. Civ. Prac. & Rem. Code Ann. § 74.051(a), (c).
Although a health care liability claim is subject to a two-year statute of limitations, a plaintiff may obtain a seventy-five-day tolling period by complying with certain statutory notice requirements. Maypole v. Acadian Ambulance Serv., Inc., 647 S.W.3d 533, 539 (Tex. App.-Dallas June 10, 2022, pet. filed). To allow a defendant physician or health care provider in a health care liability suit to obtain medical information from a claimant's health care providers, the TMLA requires a plaintiff to accompany her mandatory pre-suit notice of her claim with an authorization for the release of the claimant's medical records to each defendant against whom a claim is made. Tex. Civ. Prac. & Rem. Code Ann. §§ 74.051(a), 74.052(a), (c); Maypole, 647 S.W.3d at 539; see also Bouchard v. Taylor, No. 13-19-00648-CV, 2021 WL 3777166, at *2 (Tex. App.-Corpus Christi-Edinburg Aug. 26, 2021, no pet.) (mem. op.) (plaintiff must provide defendant with notice of health care liability claim at least sixty days before suit is filed and medical authorization must accompany notice). If a plaintiff provides the notice and medical authorization, the two-year limitations period is tolled for a period of seventy-five days "following the giving of the notice." Id. § 74.051(c); Carreras v. Marroquin, 339 S.W.3d 68, 74 (Tex. 2011) ("[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."); Bouchard, 2021 WL 3777166, at *3. If a plaintiff fails to furnish a medical authorization, tolling is not permitted. Carreras, 339 S.W.3d at 72, 74 ("If the authorization does not accompany the notice, then the benefit of the notice- tolling-may not be utilized."); Salinas v. Methodist Healthcare Sys., No. 07-19-00026-CV, 2019 WL 3807871, at *1 (Tex. App.-Amarillo Aug. 13, 2019, no pet.) ("Mailing both notice and the [medical] authorization form are prerequisites to tolling . . . ."); Davenport, 526 S.W.3d at 552 ("[A] claimant's complete failure to provide a[] [medical] authorization form as prescribed by [s]ection 74.052 precludes the tolling of limitations . . . .").
The substance of the medical authorization is addressed in Texas Civil Practice and Remedies Code section 74.052, titled "Authorization Form for Release of Protected Health Information." Tex. Civ. Prac. & Rem. Code Ann. § 74.052. Section 74.052(c) states that "the medical authorization required by [section 74.052] shall be in the following form" and then provides a medical authorization form for the plaintiff to complete. See id. § 74.052(c). The authorization form must list, among other things: (1) "the physicians or health care providers who have examined, evaluated, or treated [the claimant] in connection with the injuries alleged to have been sustained in connection with the claim asserted in the accompanying [n]otice of [h]ealth [c]are [c]laim" and (2) the "physicians or health care providers who have examined, evaluated, or treated [the claimant] during a period commencing five years prior to the incident made the basis of the accompanying [n]otice of [h]ealth [c]are [c]laim." Id. § 74.052(c); see also Heinzen v. Whitford, No. 14-18-00830-CV, 2020 WL 4461366, at *4 (Tex. App.-Houston [14th Dist.] Aug. 4, 2020, no pet.) (mem. op.) (medical authorization that does not contain section 74.052's required information does not toll statute of limitations).
Here, the parties' live pleadings establish that the two-year statute of limitations barred Nolden's health care liability claims. In its motion to dismiss, Crescent asserted that the last date that Nolden was under Crescent's care was March 2, 2018-the date Nolden was discharged from Crescent. And because Nolden filed her original petition on September 1, 2020, more than two years had passed since the occurrence of the breach or tort, the last date of the relevant course of treatment, or the last date of the relevant hospitalization, and Nolden's claims were barred by the statute of limitations. See Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a); Mitchell v. Methodist Hosp., 376 S.W.3d 833, 835 (Tex. App.- Houston [1st Dist.] 2012, pet. denied).
Nolden does not dispute that she was discharged from Crescent on March 2, 2018.
Crescent attached to its combined answer, special exceptions, and motion to dismiss a "[f]ace [s]heet" from its records showing that Nolden was admitted to Crescent on February 6, 2018 and discharged from Crescent on March 2, 2018. Because the "[f]ace [s]heet" contained the last date of Nolden's treatment at Crescent, it provided the basis for Crescent's assertion that the statute of limitations barred Nolden's claims, and thus, could be considered as part of its answer. See Tex. R. Civ. P. 59 ("[W]ritten instruments, constituting, in whole or in part, the claim sued on, or the matter set up in defense, may be made a part of the pleadings by copies thereof, or the originals, being attached or filed and referred to as such, or by copying the same in the body of the pleading in aid and explanation of the allegations in the petition or answer made in reference to said instruments and shall be deemed a part thereof for all purposes."); Tex.R.Civ.P. 91a.6 (explaining "court may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted by [Texas Rule of Civil Procedure] 59."); see also HMT Tank Serv. LLC v. Am. Tank & Vessel, Inc., 565 S.W.3d 799, 808 (Tex. App.-Houston [14th Dist.] 2018, no pet.) (courts "look[] solely to the pleadings and any attachments to determine whether the dismissal standard is satisfied"). But we also note that the "[f]ace [s]heet" is listed in Crescent's filing as an item of "supporting evidence" for Crescent's motion to dismiss.
Further, in its motion to dismiss, Crescent asserted that Nolden "failed to provide" Crescent with a compliant notice and medical authorization as required by Texas Civil Practice and Remedies Code sections 74.051(a) and 74.052, and because of this, Crescent argued that Nolden could not utilize the tolling provision found in Texas Civil Practice and Remedies Code section 74.051(a) to toll the statute of limitations in Nolden's case. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.051(a), (c), 74.052(a), (c).
In her original petition, Nolden alleged that she had "provided [Crescent] written notice of [her] claims as required by . . . Texas Civil Practice [and] Remedies Code [section] []74.051." But she did not allege that she provided Crescent with the required medical authorization, and she did not attach to her original petition either the required notice or the medical authorization. See Tex. Civ. Prac. & Rem. Code Ann. § 74.051(b) (in pleadings filed in court, plaintiff "shall state that [she] has complied with the provisions of this section and [Texas Civil Practice and Remedies Code] [s]ection 74.052 and shall provide such evidence thereof as the judge of the court may require to determine if the provisions . . . have been met" (emphasis added)). Instead, the day before the hearing on Crescent's motion to dismiss, Nolden filed her untimely amended petition and attached certain letters from her attorney, dated September 25, 2019, which were purportedly sent to Crescent's address as her notice.
At the hearing, the parties and the trial court addressed the sufficiency of those letters as the required pre-suit notice in determining whether dismissal of Nolden's claims was appropriate. Crescent asserted that the letters attached to Nolden's amended petition did not include the required medical authorization and thus Nolden had not shown that she was entitled to tolling of the statute of limitations under Texas Civil Practice and Remedies Code section 74.051(c). When the trial court asked Nolden's trial counsel if Crescent's assertion was correct, she replied, "Your Honor, it does appear that the [medical] authorization was not submitted. We gave the notice of the lawsuit to [Crescent] and [its] agents; but the actual two-page authorization sheet, it appears was not included." Cf. Cantu v. Mission Reg'l Med. Ctr., No. 13-12-00568-CV, 2014 WL 1879292, at *1, *3-5 (Tex. App.-Corpus Christi-Edinburg May 8, 2014, no pet.) (mem. op.) (trial court properly granted summary judgment on limitations grounds because plaintiff admitted medical authorization did not comply with Texas Civil Practice and Remedies Code section 74.052 and tolling provision did not apply). Without the required medical authorization, Nolden's purported notice to Crescent was ineffective to toll the statute of limitations. See Carreras, 339 S.W.3d at 72, 74 ("If the authorization does not accompany the notice, then the benefit of the notice-tolling-may not be utilized."); Salinas, 2019 WL 3807871, at *1 ("Mailing both notice and the [medical] authorization form are prerequisites to tolling . . . ."); Davenport, 526 S.W.3d at 552 ("[A] claimant's complete failure to provide a[] [medical] authorization form as prescribed by [s]ection 74.052 precludes the tolling of limitations . . . .").
In examining the foregoing, we note that in ruling on Crescent's motion to dismiss, the trial court considered, as evidence that Nolden did not comply with the notice and medical authorization requirements of Texas Civil Practice and Remedies Code sections 74.051(a) and 74.052: the "[f]ace [s]heet" attached to Crescent's combined answer, special exceptions, and motion to dismiss; the letters attached to Nolden's untimely amended petition; and the admission by Nolden's trial counsel in open court that the medical authorization was not included with the letters purportedly sent by Nolden to Crescent's address. But in ruling on a rule 91a motion to dismiss, a trial court is prohibited from considering an amended petition that was not filed at least three days before the date of the hearing on the motion. Tex.R.Civ.P. 91a.5(c) (trial court "must not consider . . . [an] amendment not filed as permitted"); Estate of Savana, 529 S.W.3d at 593; In Guardianship of Peterson, 2016 WL 4487511, at *6.
A statement by counsel on behalf of a client may constitute a judicial admission. See Currid v. Coit Cleaning & Restoration Servs., No. 01-17-00630-CV, 2018 WL 1801798, at *5 n.7 (Tex. App.-Houston [1st Dist.] Apr. 17, 2018, no pet.) (mem. op.); Lee v. Lee, 43 S.W.3d 636, 641 (Tex. App.-Fort Worth 2001, no pet.); In re M.M.O., 981 S.W.2d 72, 84 (Tex. App.-San Antonio 1998, no pet.). A statement is a judicial admission if it (1) is made during the course of a judicial proceeding; (2) is contrary to an essential fact or defense asserted by the person making the admission; (3) is deliberate, clear, and unequivocal; (4) would be consistent with public policy if it were given conclusive effect; and (5) is not destructive of the opposing party's theory of recovery. Currid, 2018 WL 1801798, at *5 n.7.
Because the trial court considered evidence and an admission not contained in the parties' live pleadings, we cannot say that the trial court's ruling was properly decided under Texas Rule of Civil Procedure 91a. See Tex. R. Civ. P. 91a.6 (explaining "court may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted by [Texas Rule of Civil Procedure] 59."); see also Bethel, 595 S.W.3d at 654, 656. That conclusion, though, does not end our inquiry into whether Nolden's health care liability claims against Crescent were properly dismissed. It is well settled that the nature of a motion is determined by its substance, rather than its title or caption. See In re Brookshire Grocery Co., 250 S.W.3d 66, 72 (Tex. 2008); Cuba v. Williams, No. 01-18-00122-CV, 2019 WL 1716061, at *2 (Tex. App.-Houston [1st Dist.] Apr. 18, 2019, no pet.) (mem. op.); see also Tex. R. Civ. P. 71; Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999) (stating general proposition that substance, not the title, of motion should determine the relief granted). And we acknowledge that motions may be misnamed. See Tex.-Ohio Gas, Inc. v. Mecom, 28 S.W.3d 129, 142 (Tex. 2000).
Crescent filed its motion to dismiss on October 5, 2021 and the trial court heard the motion on February 9, 2021, more than twenty-one days after Crescent's motion was filed. See Tex. R. Civ. P. 166a(c) (requiring summary-judgment motion to be filed and served at least twenty-one days before time specified for hearing). Accordingly, we consider whether the trial court could have properly concluded that Crescent was entitled to judgment as a matter of law on Nolden's claims because they were barred by the statute of limitations. See Robles v. Mount Franklin Food, L.L.C., 591 S.W.3d 158, 163-64 (Tex. App.-El Paso 2019, pet. denied) ("[W]e have an obligation to look to the substance of a motion and may construe a motion to dismiss as a summary judgment."); Happy Jack Ranch, Inc. v. HH & L Dev., Inc., No. 03-12-00558-CV, 2015 WL 6832631, at *2 (Tex. App.-Austin Nov. 6, 2015, pet. denied) (mem. op.) (although plaintiffs complained defendant used motion to dismiss to assert affirmative defense of limitations, holding limitations issue properly before trial court "in a summary-judgment posture"); see also Cuba, 2019 WL 1716061, at *2-3 (treating motion to show cause why case should not be dismissed as summary-judgment motion).
As with a trial court's ruling on a motion to dismiss under Texas Rule of Civil Procedure 91a, we review a trial court's ruling on a summary-judgment motion de novo. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our review, we take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant's favor. Valence Operating, 164 S.W.3d at 661; Knott, 128 S.W.3d at 215.
To prevail on a matter-of-law summary-judgment motion, a movant must establish that no genuine issue of material fact exists and the trial court should grant judgment as a matter of law. See Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). When a defendant moves for a matter-of-law summary judgment on an affirmative defense, it must plead and conclusively establish each essential element of its affirmative defense, thereby defeating the plaintiff's cause of action. See Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). Once the movant meets its burden, the burden shifts to the non-movant to raise a genuine issue of material fact precluding summary judgment. See Siegler, 899 S.W.2d at 197; Transcon. Ins. Co. v. Briggs Equip. Tr., 321 S.W.3d 685, 691 (Tex. App.-Houston [14th Dist.] 2010, no pet.). 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).
As discussed above, the undisputed evidence before the trial court conclusively established that Nolden's last day of care and treatment at Crescent was March 2, 2018-the date she was discharged from Crescent-and her original petition was not filed until September 1, 2020. Nolden thus did not file her original petition within the two-year statute of limitations period found in Texas Civil Practice and Remedies Code section 74.251(a). Further, Nolden, through her trial counsel, admitted that the required medical authorization was not sent to Crescent, meaning that the tolling provision provided by Texas Civil Practice and Remedies Code section 74.051(c) could not be applied to toll limitations in this case. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.051(a), (c), 74.052(a), (c); Carreras, 339 S.W.3d at 74; Salinas, 2019 WL 3807871, at *1; Davenport, 526 S.W.3d at 552. Accordingly, without the application of the tolling provision, the statute of limitations for Nolden's health care liability claims expired on March 2, 2020.
Finally, we note that Nolden also asserted at the hearing on Crescent's motion that the Texas Supreme Court's Emergency Orders Regarding the COVID-19 State of Disaster, the first of which was issued on March 13, 2020, also extended the limitations period applicable to her claims. But the statute of limitations for Nolden's claims expired on March 2, 2020, and the Texas Supreme Court did not issue is First Emergency Order Regarding the COVID-19 State of Disaster until March 13, 2020. See Supreme Court of Texas, First Emergency Order Regarding the COVID-19 State of Disaster, 596 S.W.3d 265, 265 (Tex. 2020) (issued on March 13, 2020 and providing: "All courts in Texas may extend the statute of limitations in any civil case for a stated period ending no later than 30 days after the [Texas] Governor's state of disaster has been lifted"). Thus, Nolden cannot use the Texas Supreme Court's emergency orders to extend the statute of limitations for her claims.
We conclude that Crescent satisfied its burden to show that it was entitled to the dismissal of Nolden's claims as a matter of law. See Erikson v. Renda, 590 S.W.3d 557, 563 (Tex. 2019) ("[A] defendant who moves for summary judgment based on limitations must conclusively establish the elements of that defense" and "must also conclusively negate application of the discovery rule and any tolling doctrines pleaded as an exception to limitations."); Ryes v. Ross, No. 01-18-00693-CV, 2019 WL 3917583, at *3 (Tex. App.-Houston [1st Dist.] Aug. 20, 2019, no pet.) (mem. op.). Thus, construing Crescent's motion as a motion for summary judgment, we hold that the trial court did not err in granting Crescent's motion and dismissing Nolden's claims with prejudice based on the affirmative defense of statute of limitations.
We overrule Nolden's third issue.
Modification of Order
We have the authority to modify the trial court's order when the necessary information is available to do so. See Tex. R. App. P. 43.2(b) (providing appellate court may modify trial court's judgment and affirm as modified); In re J.Q.L., No. 01-18-01094-CV, 2019 WL 2292991, at *10 (Tex. App.-Houston [1st Dist.] May 30, 2019, no pet.) (mem. op.); see also Monk v. Pomberg, 263 S.W.3d 199, 208 (Tex. App.-Houston [1st Dist.] 2007, no pet.) ("A court of appeals is empowered to modify the judgment in accord with the findings of the trial court, when there is a conflict between the finding and the judgment of the trial court."). Here, we modify the trial court's order to omit the following language:
After considering the Defendants' Rule 91A Motion to Dismiss, all relevant pleadings, and the arguments of counsel at the hearing held on Tuesday, February 9, 2021, the Court finds that the Defendant's Rule91a Motion to Dismiss should be GRANTED.
IT IS THEREFORE ORDERED that Defendants' Rule 91a Motion to Dismiss shall be GRANTED and Plaintiff's cause of action is hereby DISMISSED with prejudice.
The omitted language shall be replaced with the following language:
After considering Crescent Health and Rehabilitation Center's summary-judgment motion, all relevant pleadings, evidence, and arguments of counsel at the hearing held on Tuesday, February 9, 2021, the Court finds that Crescent Health and Rehabilitation Center's summary-judgment motion should be GRANTED.
IT IS THEREFORE ORDERED that Crescent Health and Rehabilitation Center's summary-judgment motion shall be GRANTED and Plaintiff's cause of action is hereby DISMISSED with prejudice.
Conclusion
We modify the trial court's order and affirm as modified.