NOTICE OF CLAIM. Co-Author MIKE YANOF Stinnett Thiebaud & Remington, L.L.P.

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1 NOTICE OF CLAIM STAN THIEBAUD Stinnett Thiebaud & Remington, L.L.P Ross Avenue, Suite 4800 Dallas, Texas telephone telecopier Co-Author MIKE YANOF Stinnett Thiebaud & Remington, L.L.P. State Bar of Texas 17 th ANNUAL ADVANCED MEDICAL MALPRACTICE COURSE March 18-19, 2010 San Antonio CHAPTER 1.2

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3 Notice of Claim Chapter 1.2 TABLE OF CONTENTS I. ABATEMENT FOR FAILURE TO COMPLY WITH THE AUTHORIZATION REQUIREMENT FAILS TO EXTEND THE 120-DAY DEADLINE TO PROVIDE A COMPLIANT REPORT II. THERE IS A SPLIT IN TEXAS AUTHORITY ON WHETHER A PLAINTIFF CAN STILL RECEIVE THE BENEFIT OF THE 75-DAY TOLLING OF THE STATUTE OF LIMITATIONS WHEN FAILING TO PROVIDE A COMPLIANT AUTHORIZATION i

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5 Notice of Claim Chapter 1.2 NOTICE OF CLAIM Section requires that notice be provided to each physician or health care provider against whom a health care liability claim is anticipated to be asserted at least 60 days before filing suit. See Tex. Civ. Prac. & Rem. Code (Vernon 2005). That this notice is mandatory, and the failure to do so within the limitations period bars the claim, was the law even before Chapter 74. See, e.g., Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex. 1987) (interpreting notice provision of Chapter 74 s predecessor statute, Texas Revised Civil Statutes article 4590i); Thompson v. Community Health Inv. Corp., 892 S.W.2d 440, (Tex. App. Dallas 1995), rev d on other grounds, 923 S.W.2d 569 (Tex. 1996) (same). The effect of providing this notice is to toll the statute of limitations 75 days. See Tex. Civ. Prac. & Rem. Code (c) (Vernon 2005). This tolling only applies if the notice is timely provided within the limitations period. This was also well established even before Chapter 74 was enacted. See, e.g., Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex. 1996) (interpreting notice provision in Chapter 74 s predecessor statute, Texas Revised Civil Statutes article 4590i); Kimball, 741 S.W.2d at 372 (same). The change from Article 4590i to Chapter 74 is in the authorization that is required to accompany the notice. The notice provision states that the notice must be accompanied by the authorization form as required under Section , indicating that providing a compliant authorization is mandatory. See Tex. Civ. Prac. & Rem. Code (a) (Vernon 2005). But what is the effect of timely sending the notice letter itself, while failing to provide a compliant (or any) authorization form? There are two related issues in this failure: (1) what is the effect of an abatement for failure to provide a compliant authorization on the 120-day deadline to provide a report, and (2) does a plaintiff who fails to provide the completed authorization form under Section (either at all or deficiently) receive the benefit of the 75-day tolling of limitations? I. ABATEMENT FOR FAILURE TO COMPLY WITH THE AUTHORIZATION REQUIREMENT FAILS TO EXTEND THE 120-DAY DEADLINE TO PROVIDE A COMPLIANT REPORT. If a plaintiff fails to provide a compliant authorization, Section provides that the proceedings shall be abated until 60 days following receipt by the physician or health care provider of the required authorization. Chapter 74 s predecessor statute, Article 4590i, also provided for abatement, albeit for failure to provide proper notice. In 1 Hagedorn v. Tisdale, 73 S.W.3d 341 (Tex. App. Amarillo 2002, no pet.), the court held that abatement under Article 4590i for failure to provide proper notice did not extend the deadline to provide an expert report. Id. at Texas courts have similarly held that the failure to provide a compliant authorization, and the resulting 60-day abatement, does not extend the 120- day deadline to provide an expert report under Chapter 74. See Gulf Coast Med. Ctr. v. Temple, 2010 Tex. App. LEXIS 405, * (Tex. App. Corpus Christi, n.p.h.); Emeritus Corp. v. Highsmith, 211 S.W.3d 321, 330 (Tex. App. San Antonio 2006, pet. denied); Estate of Regis v. Harris County Hosp. Dist., 208 S.W.3d 64, 69 (Tex. App. Houston [14 th Dist.] 2006, no pet.). Notwithstanding, at least two courts of appeals have held that an abatement entered pursuant to the Texas Insurance Code in an Article 4590i case served to also abate the time period to provide an expert report during the abatement period. See Campbell v. Kosarek, 44 S.W.3d 647, (Tex. App. Dallas 2001, pet. denied); Tibbetts v. Gagliardi, 2 S.W.3d 659, 664 (Tex. App. Houston [14 th Dist.] 1999, pet. denied). The court in Gulf Coast Medical Center specifically distinguished Campbell as involving an Insurance Code abatement provision rather than an abatement provision under Chapter 74 (or its predecessor, Article 4590i) Tex. App. LEXIS 405, * 15. II. THERE IS A SPLIT IN TEXAS AUTHORITY ON WHETHER A PLAINTIFF CAN STILL RECEIVE THE BENEFIT OF THE 75-DAY TOLLING OF THE STATUTE OF LIMITATIONS WHEN FAILING TO PROVIDE A COMPLIANT AUTHORIZATION. The Houston (First) Court of Appeals has held that the failure to provide a substantially compliant (or any) authorization form with the notice results in failing to properly serve notice under Section (a). See Nicholson v. Shinn, 2009 Tex. App. LEXIS 7720, * 10 (Tex. App. Houston [1 st Dist.], no pet.). Thus, a plaintiff who fails to provide a substantially compliant or any authorization form with the notice fails to obtain the benefit of the 75-day tolling period. Id. In Nicholson, the court granted a defendant s motion for summary judgment on statute of limitations since the plaintiff filed suit more than two years after the incident made the basis of the lawsuit. Id. Had the plaintiff received the benefit of the 75-day tolling period, the suit would have been timely. Id. In contrast, the Corpus Christi and Austin courts of appeals have found that failing to provide an adequate authorization does not preclude a plaintiff from receiving the 75-day tolling of limitations if the notice under Section (a) is otherwise timely

6 Notice of Claim Chapter 1.2 provided. See Carreras v. Marro-Quin, 297 S.W.3d 420, 2009 Tex. App. LEXIS 6645, *7-9 (Tex. App. Corpus Christi, pet. filed); Hill v. Russell, 247 S.W.3d 356, 360 (Tex. App. Austin 2008, no pet.). In Carreras the plaintiff failed to provide any authorization at all within the limitations period. 297 S.W.3d 420, 2009 Tex. App. LEXIS 6645, * 3. In contrast to the Houston (First) Court of Appeals in Nicholson, the Corpus Christi and Austin courts of appeals held that the proper remedy for failing to include an authorization form (or a proper one) is abatement for 60 days pursuant to Section (a), but that a plaintiff would still get the benefit of the 75 day tolling of limitations for having sent a notice letter timely. Id. at * 8-9; Hill, 247 S.W.3d at 360. There is a third line of cases which further complicates the issue. In Rabatin v. Kidd, 281 S.W.3d 567 (Tex. App. El Paso 2008, no pet.), the El Paso of Appeals was faced with the hybrid of the two issues above. Specifically, the plaintiff timely sent a notice letter with an authorization, but the authorization was deficient (rather than absent). Rabatin, 281 S.W.3d at 571. As the court noted in Rabatin, the statute clearly requires that the notice must be accompanied by a medical authorization form in order to toll the limitations period. Id. at 571. The court went on to find that the plaintiff did just that, albeit a deficient authorization. Id. Accordingly, the court granted the plaintiff the benefit of the 75-day tolling period despite having provided a deficient authorization. Id. These conflicting lines of cases may be resolved by the Supreme Court, as a petition for review has been filed in Carreras. Regardless of whether or if so, how, the Supreme Court resolves this issue, a plaintiff can avoid the potential trap of Section by: (1) providing a compliant authorization form with its notice letter (see Tex. Civ. Prac. & Rem. Code (c) (Vernon 2005)), (2) making sure that the notice and authorization are properly served on the physician or health care provider (see Nicholson, 2009 Tex. App. LEXIS 7720, * 10-11), and (3) if possible, file suit within the limitations period so that application of the 75-day tolling period is unnecessary. 2