* District Judge of the Western District of Louisiana, sitting

by designation.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 91-2405

_____________________

LAURA PATRICIA CANAVATI DE CHECA, ET AL.,

Plaintiffs-Appellants,

versus

DIAGNOSTIC CENTER HOSPITAL, INC., ET AL.,

Defendants,

ROBERT DAVIS, M.D., ET AL.,

Defendants-Appellees.

_______________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_______________________________________________________ (July 20, 1992)

Before WILLIAMS and WIENER, Circuit Judges, and LITTLE, * D istrict

Judge.

PER CURIAM:

CERTIFICATE FROM THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT TO THE SUPREME COURT OF TEXAS, PURSUANT

TO THE TEXAS CONSTITUTION ART. 5 § 3-C AND TEX. R. APP.

P. 114.2

TO THE SUPREME COURT OF TEXAS AND THE HONORABLE JUSTICES THEREOF:

The United States Court of Appeals for the Fifth Circuit finds

that thi s case involves questions of Texas law that are

determinative of the cause and for which we find neither

dispositive statutory provision nor controlling precedents in the

decisions of the Supreme Court of Texas or the intermediate

appellate courts of Texas. We hereby certify two questions of law

to the Supreme Court of Texas for instructions.

I. STYLE OF THE CASE

The style of the case in which this certificate is made is

Laura Patricia Canavati De Checa, et al., Plaintiffs-Appellants v.

Diagnostic Center Hospital, Inc., et al., Defendants, and Robert

Davis, M.D. , Gail Burbridge, M.D., and George Burnazian, M.D.,

Defendants-Appellees

, Case No. 91-2405, in the United States Court

of Appeals for the Fifth Circuit, on appeal from the United States

District Court for the Southern District of Texas.

II. STATEMENT OF FACTS

In this wrongful death action based on medical malpractice,

plaintiffs/appellants ("Canavatis"), the surviving spouse and

children of Robert Canavati, sued various hea lth care facilities

and physicians involved in the examination, diagnosis, and

treatment of Mr. Canavati, pursuant to the Medical Li ability and

Insurance Improvement Act of Texas, Tex. Rev. Civ. Stat. Ann. art.

4590i (Vernon Supp. 1992), and the Wrongful Death and Survival3

provisions of Texas law, Tex. Civ. Prac. & Rem. Code Ann. §§ 71.004

and 71.021 (Vernon 1986). Only the district court's orders

concerning Drs. Burbridge, Davis, and Burnazian are at issue. By

agreement of the parties, the distric t court bifurcated the case

and set the statute of limitations issue for trial.

Based on the parties' briefs and stipulated facts, the

district court granted summary judgm ent and dismissed the

Canavatis' claims against Drs. Burbridge, Davis, and Burnazian on

the ground that plaintiffs failed to file timely suit and notice

under the Medical Lia bility and Insurance Improvement Act, Tex.

Rev. Civ. Stat. Ann. art. 4590i, §§ 4.01(a) and (c) as well as

10.01 (Vernon Supp. 1992).

With the operative facts and dates not in dispute, the

resolution of this appeal will turn on interpretation and

application of the statutory sections.

Sec. 4.01(a):

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 lea st 60 days before the filing of a

suit in any court of this state based upon a

health care liability claim.

. . .

Sec. 4.01(c):

Notice given as provided in this Act shall

toll the applicable statute of limitations to

and including a period of 75 days following

the giving of t he notice, and this tolling

shall apply to all parties and potential

parties.4 . . .

Sec. 10.01 (in relevant part):

Notwithstanding any other law, no health care

liability claim may be commenced unless the

act i on is filed within two years from the

occurre nce of the breach or tort or from the

date the medical or health care treatment that

is the subject of the c l aim or the

hospitalization for which the claim is made is

completed.

On this appeal, the parties do not contest the following:

(1) the suit was not filed within the two years of the last date of

treatment by Drs. Burbridge, Davis, and Burnazian; (2) no notice of

claim letter was sent to the appellees within the two years of the

last date of the treatment they administered; and (3) unless the

statute of limitations is tolled, the Canavatis' claim is barred.

The crux of the Canavatis' claim is that the giving of timely

notice to defendants Dr. Middleman, the Diagnostic Cl inic of

Houston, P.A. ("Clinic"), and the Diagnostic Center Hospital, Inc.

("Hospital"), within two yea rs after the stipulated last day of

treatment, pursuant to § 4.01(a), tolled for another 75 days the

statute of limitations as to all potential parties, including

Drs. Burbridg e, Davis, and Burnazian, pursuant to § 4.01(c).

During this 75-day extension, the Canavatis filed suit and gave

notice to Drs. Burbridge, Davis, and Burnazian as required by

§ 4.01(a). But while the Canavatis gave the required notice to the

appellees prior to filing suit agai nst them, they did so only a

matter of days before instituting their action, and only after the1 The chronology is as follows:

5/20/86 Mr. Canavati presents at Diagnostic Clinic

6/25/86 Last surgery by Dr. Burbridge

8/09/86 Last surgery by Dr. Davis

9/10/86 Mr. Canavati discharged from hospital

9/14/86 Mr. Canavati last seen by Dr. Burbridge in

hospital emergency room

9/10-25/86 Mr. Canavati last seen by Dr. Davis

9/25/86 Mr. Canavati last seen by Dr. Burnazian

10/01/86 Mr. Canavati returns to Mexico

1/1/87 Death of Mr. Canavati

4/18/88 Notice sent to Dr. Middleman

9/08/88 Notice sent to Diagnostic Clinic and

Diagnostic Hospital

9/10-25/88 Two years from last treatment

11/10/88 Notice sent to Drs. Davis and Burbridge

11/14/88 Notice sent to Dr. Burnazian

11/18/88 Lawsuit filed

11/24/88 Two years and 75 days from last treatment

5 two-year limitations period had expired. The relevant dates that

determine the applicable limitations period are undisputed. 1

The appellees contend that § 4.01(c) operates to toll the twoyear statute of limitations for 75 days only if a notice of claim

letter is sent to each named defendant within t he two-year

limitations perio d. Thus, if no notice is sent and no suit is

filed against a n amed defendant within this two-year limitations

period, as occurred in this case, the suit is time-barred.6

In setting forth their contentions, the parties rely on three

reported cases that have reached divergent conclusions: R oberts v.

Southwest Texas Methodist Hospital

, 811 S.W.2d 141 (Tex. App.--San

Antonio 1991, writ denied); Rhodes v. McCarron

, 763 S.W.2d 518

(Tex. App .--Amarillo 1988, writ denied); and M addux v. Halipoto

,

742 S.W.2d 59 (Tex. App.--Houston [14th Dist.] 1987, no writ). The

appellees rely primarily on Maddux

, which held that notice to a

hospital within the two-year period does not toll limitations as to

a doctor the plaintiff subsequently chose to sue because § 4.01(a)

requires notice "to each physicia n or health care provider."

Because the plaintiff failed to s end a notice of claim letter to

the doctor within the two-year period, "the statute of limitations

was not tolled." 742 S.W.2d at 61.

Another appellate court has addressed both § 4.01(a) and

§ 4.01(c) and reached a different result. In R hodes

, the plaintiff

had sent timely notice to three defendant doctors. The court held

that this entitled the plaintiff to an extra 75 days to sue a

fourth doctor. According to R hodes

, "[the] notice of claims Rhodes

s ent to Dr. McCarron's three co-defendant doctors served to toll

the two-year statute of limitations for a period of 75 days as to

them and to Dr. McCarron, a potential party." 763 S.W.2d at 522.

In Roberts , the plaintiff sent timely notice of her claim to

the physician, but failed to send notice to the hospital. Based on

the statute of limitations and notice provisions found in §§ 10.01

and 4.01 (a) and (c), the court of appeals ruled that notice to one

health care provider, the physician, tolled the limitations as to7

the other, the hospital. In interpreting the two relevant parts,

it found that: "The statute mandates notice to each defendant

prior to the r unning of limitations, but extends the limitation

period for 75 days for all potential parties if notice is given to

any defendant." 811 S.W.2d at 143. The court analyzed M addux and

Rhodes and held that Rhodes correctly interpreted the statutes.

A central cause of the confusing inte raction between

§§ 4.01(a) and (c) seems to arise from the fact that, in specifying

the tolling circumstances of § 4.01(c), the Texas Legislature did

not supply a definition for the term "all parties and potential

parties." Instead, § 1.03(b) of the Medical Liability and

Insurance Improvement Act provides that the terms therein must have

the meaning as consistent with the common law. The R hodes court

attempted to clarify this lack of clarity by holding:

[T]he Legislature meant the tolling of the

two-year limitations period would apply to all

who are actively concerned with the giving and

receiving of the no tice of the claim, and to

those who possibly will be, but are not at the

time the notice is given, associated with the

claim.

763 S.W.2d 522.

These cases reveal that key issues remain unsettled. There is

an apparent conflict between § 4.01(a)'s mandate t hat notice be

given to "each physician or health care provider against whom such

claim is being made," and § 4.01(c)'s application of the tolling

provision to "all parties and potential parties" if notice has been

"given as provided in this Act."8

Moreover, if it is concluded that giving notice to one

physician does have the effect of tolling the statute of

limitations for 75 days as to physicians who were initially

"potential parties," a second issue emerges. It is unclear how the

60-day notice mandated by § 4.01(a) would be applied in such a

case. Specifically, there is no guidance afforded by the statute

or the case law as to whether claims against these subsequently

sued "pote ntial parties" would be barred if the required 60-day

period between giving notice and filing suit was held to apply to

the later sued partie s. If it was so held, suits would then be

filed outside of the 75-day extension of the statute of

limitations. There is similarly no guidance as to whether each

such physician would receive a 60-day period before suit could be

filed against him or her if, as here, one physician received notice

at a later date t han the other "potential party" physicians. A

determination of these issues appears to contemplate that one

subsection, either § 4.01(a) or § 4.01(c), is subordinate to the

other. If this supposition is correct, we are unable to discern

which subsection holds the dominant position.

The Canavatis endeavor to resolve this predicament by

contending that the fact that the notice to the appellees was given

less than 60 days before suit was filed has been consistently held

to be grounds for abatement but not grounds for dismissal. In the

instant case no motions for abatement were filed, and under the

holding of the district court none were needed. Your decision in

Schepps v. Presbyterian Hospital of Dallas

, 65 2 S.W.2d 934, 9389

(Tex. 1983), held that although section 4.01 had a legitimate

purpose in requiring medical malpractice claimants to give notice

to the alleged malpractitioner sixty days prior to the filing of

the suit, the purpose of the notice requirement, to promote a

resolution of malpractice claims without excessive litigation

costs, could be as easily accomplished by abating a cause for sixty

days as by dismissing it. S ee also

, Hutchinson v. Wood

, 657 S.W.2d

782, 783 (Tex. 1983) (per curiam) (reaching same conclusion as

Schepps and abating in accordance); Baber v. Edman , 719 F.2d 122,

123 (5th Cir. 1983) (following Schepps and remanding with

instructions to stay proceedings for sixty days).

Schepps , however, is distinguishable from the instant case.

The plaintiffs in Schepps filed suit against the physician and the

hospital with over 60 days remaining in the two-year statute of

limitations period, but gave no notice prior to filin g their

claims. Under the facts of that case, implementing the 60-day

notice requirement by abatement still allowed suit to be filed

w ithin the two-year period. Thus, there was no need even to

c onsider any tolling issue as abatement did not extend the

limitations period. S chepps consequently does not co ntrol the

issue in the case before us.

We conclude that in structions from the Supreme Court of the

State of Texas on these issues will completely control our decision

in the case pending before us.10 III. QUESTIONS CERTIFIED

1. If, pursuant to Tex. Rev. Civ. Stat. Ann. art. 4590i

§ 4.01(a), a plaintiff properly notifies a physician or other

health care provider of a health care liability claim within the

applicable two-year statute of limitations, does this notice serve

to toll the period of limitations for an additional 75 days,

pursuant to § 4.01(c), as to other physicians and health care

providers who are potential parties?

2. If the first question is answered in the affirmative, then

what is the effect of the notice provision, of § 4.01(a), if it

requires 60 days between giving notice and filing suit as to

potential parties when the 60 days places the claim outside of the

two-year and 75-day extended limitations period? Further, would a

separate 60-day period apply to each potential party if notice was

given to individual potential parties on different dates? Can

abatement be applied beyond the extended limitations period?

We disclaim any intention or desire that the Supreme Court of

the State of Texas confine its reply to the precise form or scope

of the questions certified.

QUESTIONS CERTIFIED TO TEXAS SUPREME COURT.