Opinion issued August 18, 2016

In The

Court of Appeals

For The

First District of Texas

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NO. 01-15-01106-CV

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CATHERINE JOHNSON, INDIVIDUALLY AND AS 

PERSONAL REPRESENTATIVE AND HEIR OF 

THE ESTATE OF FREDDIE MAE JOHNSON, Appellant

V.

PHCC-WESTWOOD REHABILITATION AND HEALTH 

CARE CENTER, LLC D/B/A WESTWOOD 

REHABILITATION AND 

HEALTH CARE CENTER AND VIREN SHAH, M.D., Appellees

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Case No. 2014-00261

O P I N I O N

In this health care liability suit, the trial court granted a final summary 

judgment based on the statute of limitations, impliedly holding that the 
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authorizations for medical records accompanying Catherine’s notice of a 

health care claim were deficient and thus ineffective to toll limitations. See

TEX. CIV. PRAC. & REM. CODE ANN. § 74.051(a), (c) (West 2015) (providing 

for 75-day tolling period if plaintiff sends compliant notice and medical 

records authorization to health care provider). 

Catherine Johnson, individually and as the personal representative and 

heir of the estate of Freddie Mae Johnson, sued PHCC–Westwood 

Rehabilitation & Health Care Center and Viren Shah, M.D. for medical 

negligence. On appeal, Catherine contends that she complied with the 

authorization and notice required for health care liability claims, and thus, the 

trial court erred in granting summary judgment. Because the medical 

authorizations that Catherine provided do not comply with the statutory 

requirements for medical authorizations, the trial court properly granted 

summary judgment. We therefore affirm.

BACKGROUND

Catherine’s mother, Freddie Mae Johnson, was admitted to Westwood 

in 2008 after she suffered a stroke that left her unable to speak. She was in 

her mid-eighties and had other serious chronic illnesses, including dementia, 

a seizure disorder, hypertension, diabetes, and multiple pressure sores. Dr. 

Shah was Freddie Mae’s attending physician. Freddie Mae developed a large
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decubitus ulcer during her stay at Westwood. Medical records from 

Westwood reflect that on December 7, 2011, Freddie Mae’s care was 

transferred to another physician, Dr. Nguyen, and Dr. Shah was discharged 

from her care.1 The next day, December 8, Freddie Mae was discharged from 

Westwood and transferred to Texas Specialty Hospital. 

On January 25, 2012, Freddie Mae was admitted to Briarwood Nursing 

and Rehabilitation. In addition to the treatment at Briarwood, Freddie Mae 

also received treatment for the decubitus ulcer from Vohra Wound Physicians. 

Freddie Mae died on November 2, 2012. 

Before Freddie Mae’s death, Catherine sent written notices of health 

care liability claims to Westwood and Dr. Shah, on February 24, 2012 and 

March 21, 2012, respectively. The medical records authorization 

accompanying the notices was signed by Freddie Mae’s other daughter, Alice 

Sims, as the grantee of a general power of attorney for Freddie Mae. The 

general power of attorney, which Freddie Mae executed on July 10, 2000,

conferred to Sims the power “including but not limited” to:

 

1 Dr. Shah’s billing records initially showed that Freddie Mae saw him for an 

outpatient visit at his office on January 9, 2012, but Dr. Shah later provided 

a corrected billing record showing a reversal of charge for that visit. No 

medical records show that Dr. Shah provided Freddie Mae with care on that 

date. The record shows that Freddie Mae received care for the decubitus 

ulcer from Dr. Shah until December 7, 2011. 
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the right to sell, deed, buy, lease, mortgage, assign, rent or 

dispose of any present or future real or personal property; the 

right to execute, accept, undertake and perform any [and] all 

contracts in my name; the right to deposit, endorse, or withdraw 

funds to or from any of my bank accounts, depositories or safe 

deposit box; the right to borrow, lend, invest or reinvest funds on 

any terms; the right to initiate, defend, commence or settle legal 

actions on my behalf; the right to vote (in person or by proxy) 

any shares or beneficial interest in any entity, and the right to 

retain any accountant, attorney, or other advisor deemed 

necessary to protect my interest generally or relative to any 

foregoing unlimited power.

The medical records authorization sent to Westwood and Dr. Shah 

identified health care providers who examined, evaluated, or treated Freddie 

Mae in connection with the decubitus ulcer, including the following entity and 

individuals:

Westwood Rehabilitation and Health Care Center

8702 South Coarse Drive

Houston, Texas 77099

Viren Shah, M.D.

1522 Southwest Freeway, Suite 265

Sugar Land, Texas 77478

Deborah _______, R.N.

[Westwood]

Patricia ________, R.N.

[Westwood]

The authorization did not identify any of the health care providers who treated 

Freddie Mae for the decubitus ulcer during the period between December 8, 
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2011 and February 24, 2012—after Freddie Mae was discharged from

Westwood but before Johnson sent the notice of claim. These providers were:

 Dr. Cao (12/13/11);

 Briarwood Nursing and Rehabilitation (1/25/12); 

 Dr. Nguyen (1/25/12); 

 Dr. Yevich (2/2/12);

 Dr. Narang and Vohra Wound Physicians (12/13/11 to 1/20/12); and

 Dr. Pham (2/3/12, 2/17/12).

Johnson first identified the omitted providers in response to defendants’

interrogatories. 

The authorization identified as health care providers as those who

examined, evaluated, or treated Freddie Mae for the period beginning five

years before the incident made the basis of the claim the following entities 

and individuals:

Westwood Rehabilitation and Health Care Center

8702 South Coarse Drive

Houston, Texas 77099

Viren Shah, M.D.

15200 Southwest Freeway, Suite 265

Sugar Land, Texas 77478

Texas Specialty Hospital

Case Manager Regina Johnson

6160 South Loop East

Houston, Texas 77087

Advance Diagnostics

8307 Knight Road

Houston, Texas 77054
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University General Hospital

7501 Fannin Street

Houston, Texas 77054

Park Plaza Hospital 

1313 Hermann Drive

Houston, Texas 77004

The authorization did not identify the entities and individuals 

who examined, evaluated or treated Freddie Mae in that five-year 

period, namely:

 The facility or facilities where Freddie Mae resided before her 

admission to Westwood;

 Dr. Thakkar; and

 Triumph Wound Care.

Johnson filed suit on January 3, 2014, 26 days after the two-year statute 

of limitations based on the date of Freddie Mae’s discharge from Westwood 

and 27 days after the last date that Freddie Mae was under Dr. Shah’s care. 

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.251(a). 

DISCUSSION

I. Standard of Review

We review de novo the trial court’s ruling on a motion for summary 

judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 

S.W.3d 844, 848 (Tex. 2009). In a traditional motion for summary judgment, 

the movant must establish that no genuine issue of material fact exists and the 

movant is thus entitled to judgment as a matter of law. TEX.R.CIV. P. 166a(c). 

When reviewing a summary judgment, we take as true all evidence favorable 
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to the non-movant and resolve any doubts in the non-movant’s favor. Valence 

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life 

& Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).

Traditional summary judgment is proper only if the movant establishes 

that no genuine issue of material fact exists, and that the movant is entitled to 

judgment as a matter of law. TEX. R. CIV. P. 166a(c). The motion must state 

the specific grounds relied upon for summary judgment. Id. A genuine issue 

of material fact exists if the non-movant produces more than a scintilla of 

probative evidence regarding the challenged element. See Ford Motor Co. v. 

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); see also Forbes Inc. v. Granada 

Bioscis., Inc., 124 S.W.3d 167, 172 (Tex. 2003) (“More than a scintilla of 

evidence exists if it would allow reasonable and fair-minded people to differ 

in their conclusions.”). A defendant moving for traditional summary 

judgment must either (1) disprove at least one element of the plaintiff’s cause 

of action or (2) plead and conclusively establish each essential element of an 

affirmative defense to rebut the plaintiff’s cause. Khan v. GBAK Props., Inc., 

371 S.W.3d 347, 352 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (citing 

Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997)).

It is an affirmative defense to assert that a claim is barred by the statute 

of limitations. TEX.R.CIV. P. 94. Accordingly, the party moving for summary 
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judgment based on the statute of limitations carries the burden of establishing 

as a matter of law that the limitations period had expired on the relevant 

claims. Id. (citing Burns v. Thomas, 786 S.W.2d 266, 267 (Tex.1990). This 

includes establishing when the causes of action accrued. Id.

II. Proper Notice and Limitations for Health Care Liability Claims

A health care-liability claim has a two-year limitations period. See TEX.

CIV. PRAC. & REM. CODE ANN. § 74.251(a). Plaintiffs asserting health care

liability claims must provide at least 60 days’ notice to each physician or 

health care provider against whom a claim is made before filing suit. Id. § 

74.051(a). Notice provided under section 74.251(a) tolls the limitations 

period for 75 days. See id.; Rowntree v. Hunsucker, 833 S.W.2d 103, 104 n.2 

(Tex. 1992); Rubalcaba v. Kaestner, 981 S.W.2d 369, 373 (Tex. App.—

Houston [1st Dist.] 1998, pet. denied). A medical-records release form that 

complies with section 74.052 must accompany the notice. TEX. CIV. PRAC. &

REM. CODE ANN. § 74.051(e); Tex. W. Oaks Hosp., LP v. Williams, 371 

S.W.3d 171, 189 (Tex. 2012).

III. Compliance with Section 74.052

Section 74.052 provides that “[t]he medical authorization required by 

this section shall be in the following form,” and it proceeds to give the text of 

the form, with blanks to be filled in with information specific to the plaintiff’s 
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claim. TEX. CIV. PRAC. & REM. CODE ANN. § 74.052(c) (West 2011). Tolling 

occurs only when the plaintiff provides notice and the executed medicalrecords release authorization form. See Tex. W. Oaks Hosp., 371 S.W.3d at

189; Jose Carreras, M.D., P.A. v Marroquin, 339 S.W.3d 68, 73 (Tex. 2011).

The medical authorization form must identify the patient’s treating 

physicians for the past five years. TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.052(c). The form also must identify the plaintiff’s treating physicians 

for the five years before “the incident made the basis of the accompanying 

notice of health care claim.” Id. § 74.052(c). The authorization form must 

grant the defendant physician or health care provider authorization to receive

the plaintiff’s medical records from all of those physicians. Id. § 74.052; 

Mitchell v. Methodist Hosp., 376 S.W.3d 833, 836 (Tex. App.—Houston [1st 

Dist.] 2012, pet. denied). The notice and authorization form encourage presuit investigation, negotiation, and settlement of health care liability claims.

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.052; Mitchell, 376 S.W.3d at 

836 (citing Carreras, 339 S.W.3d at 73). The medical authorization form is 

designed to allow the health care provider to both disclose and obtain 

information. Mitchell, 376 S.W.3d at 838 (citing TEX. CIV. PRAC. & REM.

CODE ANN. § 74.052(c)).
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A. A general power of attorney is not a medical power of 

attorney.

Johnson first contends that she substantially complied with the statutory

medical records authorization form by using the form with Sims’s signature 

under her general power of attorney. Johnson argues that Sims’s signature is 

effective because Freddie Mae’s medical records demonstrate that she meets 

the statutory definition of “incapacitated person” under the Estates Code. See

TEX. EST. CODE ANN. § 22.016(2) (West 2014) (defining “incapacitated 

person” as “an adult who, because of a physical or mental condition, is

substantially unable to provide food, clothing, or shelter for himself or herself;

care for the person’s own physical health; [or] manage the person’s own 

financial affairs . . .”).

Our inquiry into whether the medical records authorization sent to 

Westwood and Dr. Shah provides a valid basis for disclosure begins with 

federal law, which makes it a crime for a person to disclose, without 

authorization, the individually identifiable health information of another 

person. See 42 U.S.C. § 1320d–6(a)(3) (2010) (Health Insurance Portability 

and Accountability Act of 1996, as amended). HIPAA regulations provide 

that a person qualifies as a personal representative for purposes of obtaining 

disclosure of protected health information “[i]f under applicable law a person 
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has authority to act on behalf of an individual who is an adult . . . in making 

decisions related to health care.” 45 C.F.R. § 164.502(g)(2) (2013).

The Texas Health and Safety Code provides the applicable law that 

HIPAA references. A person may obtain the authority to act as an “agent” on 

behalf of another adult in making health care-related decisions solely by 

executing a medical power of attorney.2 See TEX. HEALTH & SAFETY CODE 

ANN. §§ 166.152, 166.162–.164 (West 2015). Pertinent to this case, the 

statute further explains that “[a]n agent may exercise authority only if the 

principal’s attending physician certifies in writing and files the certification in 

the principal’s medical record that, based on the attending physician’s 

reasonable medical judgment, the principal is incompetent.” Id. § 166.152(b). 

The authorization that Johnson provided does not comply with these 

requirements. Neither the general power of attorney nor the authorization 

form identifies Sims as having power to sign on behalf of Freddie Mae with 

respect to obtaining disclosure of her medical records or as her agent for 

making health-care related decisions. The power of attorney, which was 

executed nearly 12 years before the medical records release authorization,

 

2 Texas statute does not refer to a “general power of attorney” like the one 

Johnson provided, but under current law, a statutory durable power of 

attorney form expressly states that it “does not authorize anyone to make 

medical and other health care related decisions for you.” TEX. EST. CODE 

ANN. 752.051 (West 2015).
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does not identify Freddie Mae as an incapacitated person for purposes of 

making her medical decisions. These omissions make the form of 

questionable validity for a health care provider to use as basis for disclosing 

medical records. 

B. The list of health care providers is materially incomplete.

The authorization also deviates from section 74.052’s requirements that 

Johnson (1) identify and authorize disclosure of records from the other health 

care providers who treated Freddie Mae for the decubitus ulcer, and (2) 

identify all of her health care providers for the five years before the incident 

giving rise to the claim. With regard to treatment of her decubitus ulcer, the 

authorization form identifies only Westwood and Shah, but none of Freddie 

Mae’s other providers since December 2011—which, for investigative 

purposes, made it equivalent to no disclosure. The authorization also fails to 

identify past providers who treated Freddie Mae in the past for decubitus 

ulcers, a significant omission. 

Johnson contends that the medical authorization that she provided to 

Westwood and Shah substantially complied with the notice requirement by 

providing the form of medical authorization with the information she had 

available at the time. This contention ignores that she—and not the 

defendants—could obtain that information, as demonstrated by her discovery 
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responses. The trial court reasonably could have concluded that Johnson’s 

failure to timely identify these providers to Westwood and Shah thwarted their

ability to retrieve a material number of Freddie Mae’s relevant medical 

provider’s records, and thus interfered with the pre-suit evaluation encouraged 

by the statute. See Mitchell, 376 S.W.3d at 838 (quoting MacFarlane v. 

Burke, No. 01–10–00409–CV, 2011 WL 2503937, at *3 (Tex. App.—

Houston [1st Dist.] June 23, 2011, no pet.) (mem. op.). 

Rabatin v. Kidd, 281 S.W.3d 558 (Tex. App.—El Paso 2008, no pet.), 

which Johnson relies on to support her contention that the omissions did not 

render her authorization ineffective, is unavailing. See id. at 562. Since the 

El Paso court decided that case, the Texas Supreme Court has made clear that 

the plaintiff must provide both the statutory notice of claim and medical 

authorization to toll the statute of limitations in a health care liability claim. 

See Carreras, 339 S.W.3d at 74; see also Nicholson v. Shinn, No. 01-07-

00973-CV, 2009 WL 3152111, at *5–6 (Tex. App.—Houston [1st Dist.] Oct. 

1, 2009, no pet.) (mem. op.) (holding that notice and authorization were 

ineffective to toll statute because release failed to include information on 

plaintiff’s physicians for previous five years and portion requiring her to 

identify her treating physicians was also incomplete). 
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CONCLUSION

We hold that the authorization form that Johnson provided did not toll 

the statute of limitations under section 74.051. See Carreras, 339 S.W.3d at 

74. Because Johnson failed to give proper notice pursuant to Civil Practice 

and Remedies Code sections 74.051 and 74.052 before the statute of 

limitations expired and filed suit after the limitations period, the trial court 

correctly held that her suit is time-barred. We therefore affirm the judgment 

of the trial court.

Jane Bland

Justice

Panel consists of Justices Higley, Bland, and Massengale.