## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

________________

___________ No. 02

- 19

- 00109

- CV

_______ ____________________

On Appeal from the 342nd District Court Tarrant County, Texas Trial Court No. 34 2

- 298286

- 18

Before Sudderth, C

.

J

. ; Gabriel and Womack , JJ. Memorandum Opinion by Chief Justice Sudderth 

### M ARGARET 

### A NN 

### C OLIA 

### , I NDIVIDUALLY AND AS 

### R EPRESENTATIVE OF

THE 

### E STATE OF 

### M ILTON 

### C OLIA 

### , Appellant

V


### . S COTT 

### E WING 

### , D.O. , Appellee2 MEMORANDUM OPINION
In a single i ssue, Appellant Mar garet Ann Colia, i ndividually and as

r eprese ntative of the Estate of Milton Colia, appeals the tria l court ’ s order granting Appellee Scott Ewing , D.O. ’ s motion for summary judgment a nd entering a take

nothing judgment in Dr. E wi ng ’ s favor . Because Margaret ’ s claim is barred by
limitation s , we a ffirm th e trial court ’ s order. Background
Milton die d sho rtly after leaving Texas Health Harris Methodist Hospital (Harris) in Fort Worth under the care of Dr

. Ewing. Dr. Ewing had pe rf ormed a
heart cathe terization and had placed a stent in one of Milton ’ s arteries on Nov ember 27, 2015, after Milton had suffere d a heart attack and was transferred to Harris from a local urgent care ce nter
. Milton died on December 1, 201 5, just two days after h is
Nov em b e r 29 discha rg e from Harris

. O n February 1, 20 17, Margaret sent notice of a wrongful death claim and a
medica l authorization form to Dr. Ewing and his insurance car ri er . The a uthorization
fo rm authorized the release of Milton ’ s protect ed h ealth information from Harris , but it did not list any physicians or health care providers ( other than Dr. Ew ing ) who had

exa mined, e valuated , or treated Milton in connection with his heart at tack , or who ha d
examined , evaluated , or treated him in the f ive years prior to his death. O n August 28, 2017, M argaret filed a wrongful death lawsuit in the estate proceeding then pending in a n El Paso proba te court
. In response, Dr. Ewi ng sought to tr ansfe r3

venue of the suit to Tarrant County. His motion was granted, and the wrongful death
suit was ordered transferred to Tarrant County

. Shortly thereafter , Margaret
dismissed her suit o nly to refile the identical law su it in a county cou rt at law in El
Paso on Febr uary 9 , 201 8

— two years and two m onths after M ilton ’ s death

. Th e county court at law also transferred the new lawsuit to Tarrant County. Recognizing th at the new filing date o f February 9 , 2018, was past the two

- year statute of limitations gover ning health c are liability clai ms, Dr. Ewing filed for
traditional summar

y judgment. The trial court even tually 1 granted Dr. Ewing ’ s motion and entere d a take

- nothing judgment

. Discuss ion In a single issue, Marg aret argues that the trial court erred by g ranti ng Dr. Ewing ’ s motion for summary judgment and di smissing her lawsuit as time

- barred

. I. Standard of review We review a summary judgment de novo. Travelers Ins . v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010)

. We consider the evidence presented in the ligh t most favorable

1 Th e tr ial court conducted a hearing on the motio n on June 22, 2018 , and then den ied the motion b ut stated that it would give Dr. Ewing permission to pursue a permissive interlocu tory appeal. See Tex. C iv. Pra c. & R em . Code Ann. § 51.014

. But the trial co ur t ’ s order did not comply with the stric t juris dict ional requirements of section 51.014(d) and the permissive appeal was therefore dismissed by this court. See Ewing v. Colia , No. 02

- 18

- 00315

- CV, 201 8 WL 5289380 , at *1

– 2 (Tex. App.

— Fort Worth Oct. 25, 20 18 , no pet .) (mem. op.). Following our dismissal of the attempted appeal , the trial court va cated its prior order and entered a new order granting Dr. Ewing ’s motion for traditional summary judgment.4

to the nonmovant, crediting evidence favorable to the nonmo vant if reasonable jurors could, and disregarding evidence contrary to the nonmovant unless reasonable jurors
could not. Mann Fran kfort Stein & Lipp Advisors , Inc. v. Fieldin

g , 28 9 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor. 20801, Inc. v. Parker , 249 S.W.3d 392, 399 (Tex. 2008). A
defendant is entitled to sum mary judgment on an affirma tive defense if t he de fendant conclusively proves all elements of th at defense. F rost Nat’l Bank v. Fernandez , 315 S.W.3d 494, 508

– 09 (Tex. 2010 ) ; see Tex. R. Civ. P. 166a(b), (c). To accom plish this , the defendant must present s ummary

- judgment evidence that conclusively esta blishes
each element of the affirmative defense. See Chau v. Riddle , 254 S.W.3d 453, 455 (Tex. 2008)

. II. Dr. Ewing ’ s affirmative defense of limitations Dr. Ewing moved f

or tra ditional summary judgment on the basis that Margaret ’ s wrongful death su it wa s filed after the applicable two

- year statute of limitations had expired. See Tex. Civ. P rac. & Rem. Code Ann. § 74. 2 51( a ) ( “ [N]o
hea l th care liability claim may be commenced unl ess the action is filed with in two years from the occ urrence of the brea ch or tort o r from the date the medical or health
care treatment that is the subject of the claim o r the hospitalization for which t he claim is made is completed. ” ). Applying th is tw o
- year statute of limitation s, Margaret ’ s deadline to file suit was Nove mbe r 29, 2017

.5

In a n attempt to avoid the limitations bar, Margaret relied upon a tolling provision in Chapter 74 that allows limitations to be tolled for 75 days if a plaintiff giv es notice of her heal th care li ability claim , with an attached medical auth orization form, in accord an ce with the chapter

. See id. § 74.051(c)

. If applicable, th is tolli ng provision would have extended Margaret ’ s filing deadline beyond her February 2,
20 18 filing date

. But the med ical authoriza t ion form provided by Margar et di d not comply with Chapter 74 ’ s requirements. Chapter 74 provides a specific form to be used for the
medical authorization

. Id. § 74.052(c). A l though Margaret used the co rrect for m, she
did not pr ovide the n ames and addresses of all treat ing p h ysicians or health care providers who had “ examined, evaluated, or treated ” Milton in connection with the inj uries he had sustained in connection with his health care liability claim, nor did she provide the names and addresses of any provider s who had “examine d, ev aluated , or treated ” Milton in the five

- year period prior to Dr. Ewing ’s treatme nt of him

. Both are required by Section 74.052(c)

. See id. Margaret argues on appeal that she “ sub stantially compli ed ” with the s tatute and provided Dr. Ewing and his i nsura nce carrier with M i lton ’ s medical re cords . But the requirements of the statute are clear

— the medical authorization form must include a list of treating physicians : those who treat ed the claimant i n re lation t o the
incid ent giving rise to liability and thos e who treated the claimant in the five years prior

. Id. Several of our sister courts have held that the failure to provide a complete6

list of health care providers as required b y the s tatute pre cludes a pla intiff from relying on the tolling provisio n , an d they have rejected substantial

- compl iance arguments similar to Margaret ’ s . See

, e.g. , Galloway v. Atrium Med. Ctr. , L.P. , 558 S.W.3d 316, 320

– 21 (Tex. App.

— Hous ton [14th Dist.] 2018, no pet. ); Davenpo rt v. Adu

- Lart ey , 526
S. W.3d 544, 552 (Tex. A pp.

— H ouston [1st Dist. ] 2017, pet. denied) ; Borowski v. Ayers , 524 S.W.3d 292, 301

– 03 (Tex. App.

— Waco 2016, pet. denied).
For example , i n Galloway , the decedent ’ s est ate and children sue d medical
prov id ers for health care liabil ity claims arising from the de ce dent ’ s death. 558 S.W.3d at 316. The medical authorization form provi ded by the plaintiffs did not list (1) the health care pr oviders who had provide d treatment to the decedent in
connection wit h the injurie s alleged to have been sustained i n connection with the
health care liability claim and (2) the health care providers who had provided

treatment to the decedent during a period commencing five years prior to the incident
made the basis of the he alth care liabi lity claim

. I d. at 321. The Fourte enth C ourt held that “ [t]hese defe cts frustrated the purpose behind section 74.052 ’ s disclosu re requirements and hindered appellee s ’ ability to engage in pre

- suit investigation, negotiation , and settleme nt with respect to appellant s ’ claims. ” Id. ; s ee also Davenpor t , 52 6 S.W.3d at 552

– 53 ( explaining that omission of treating

- p hysician information

co uld interfere with a defendant ’s ability to investigate the plaintiff ’s claims ); Borowski

, 52 4 S.W.3d at 30 1

– 03 ( collecting cases and h olding that “f ail ing to list any of the

na mes a nd address es of a patient ’s treating physicians or health care providers during7

the five years before the incident made the basis of the notice of hea lth care claim

se ri ously hinders the sta tu tory design to en hance pre

- suit investigation, negotiation,

a nd se ttlement ”)

. 2 The court rejected the appellant s ’ arguments that they ha d

“ su bstantially complied ” with Section 74.052 ’ s requirements and held that t he appellants ’ au th orization form did no t toll the statute of lim itations. Id. at 322 ; s ee also Davenpo rt , 5 26 S.W.3d at 552

– 53 (

rejecting similar argument ); Borowski

, 524 S.W.3d at 301

– 03 ( same )

. We agree with the reasoning of our sister cour t s . The language of Se ctio ns 74.051 a nd .052 is c l e ar. See Tex. C iv. Prac. & R em. Code Ann. § § 74.051(a) (requiring
that the notice “ must be accom panied by ” an authorization form “ as required under
Section 74.052 ” ) , .052 (stating that the a uthorization form “ shall ” be in the “ foll ow ing form, ” which requ ir es list s of treating physic ians and medical providers ) . We are

re quire d to apply those words as written and accor ding to their common meaning

. S ee State v. Shumake , 199 S.W .3d 279, 284 ( Tex. 2006)

. The failure or refusal to prov id e a medical authoriza ti on form listing the ph ysici ans or health care providers who

2 Margaret ’ s r el iance on Mock v. Presby terian H os p. of Plano , 379 S.W.3d 391 (Tex. A p p.

— Dalla s 20 12, p et. denied) , and Rabatin v. Kidd , 281 S.W.3d 558 (Tex. App.

— El Paso 2008, no pet.) , are misplaced. In Mock , the authoriz ation form contained on e improperly

- completed b la nk but ot her wise “ complied with t he stat utory requirements

. ” 379 S.W.3d at 39 5. Rabatin was decided prior to the Texas Supreme Court ’ s decision in Carre ras v. Marroquin , 339 S.W.3d 68 (Tex. 20 11), which clarified the requirements plaintiff s must me et t o avail themselves of the tolling p r ovision in Cha pter 74

. See also B o ro wski , 5 24 S .W.3d at 300

– 01 (discussing Mock and Rabatin and distinguishing them from the situation of a medical authorization that fails to completely list treating ph ys icians ).8

examin ed, e valuated, or treated the patient in the five years l eading up to the alleged

event of liability , and those who examined, evalu ated , or treated the patient in

co nn ection with that even t, po se s a risk of underminin g the defendant ’ s ability to
inves tigat e the claims, nego tiate a fair settlement, and ultimately defend itself. See Galloway , 558 S.W.3d at 321; Davenport , 526 S.W.3d at 552

– 53; Borowski , 524 S.W.3d at
3 01

– 03. Accordingly, we overrule Margaret ’ s only issue and affirm the trial cou rt ’ s order granting summary judgment in favor of Dr. Ewing.
Con c lusion Having overruled Margaret ’ s only issue , we affirm the trial court ’ s judgment.
/s/ Bonnie Sudderth Bonnie Sud derth Chief J ustice
Delivered: January 16, 20 20