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. 342-298286-18

Before Sudderth, C.J.; Gabriel and Womack, JJ.

Memorandum Opinion by Chief Justice Sudderth

MARGARET ANN COLIA, INDIVIDUALLY AND AS REPRESENTATIVE OF 

THE ESTATE OF MILTON COLIA, Appellant

V.

SCOTT EWING, D.O., Appellee
2

MEMORANDUM OPINION

In a single issue, Appellant Margaret Ann Colia, individually and as 

representative of the Estate of Milton Colia, appeals the trial court’s order granting 

Appellee Scott Ewing, D.O.’s motion for summary judgment and entering a takenothing judgment in Dr. Ewing’s favor. Because Margaret’s claim is barred by 

limitations, we affirm the trial court’s order. 

Background

Milton died shortly after leaving Texas Health Harris Methodist Hospital 

(Harris) in Fort Worth under the care of Dr. Ewing. Dr. Ewing had performed a 

heart catheterization and had placed a stent in one of Milton’s arteries on November 

27, 2015, after Milton had suffered a heart attack and was transferred to Harris from a

local urgent care center. Milton died on December 1, 2015, just two days after his 

November 29 discharge from Harris. 

On February 1, 2017, Margaret sent notice of a wrongful death claim and a 

medical authorization form to Dr. Ewing and his insurance carrier. The authorization 

form authorized the release of Milton’s protected health information from Harris, but

it did not list any physicians or health care providers (other than Dr. Ewing) who had 

examined, evaluated, or treated Milton in connection with his heart attack, or who had 

examined, evaluated, or treated him in the five years prior to his death. On August 

28, 2017, Margaret filed a wrongful death lawsuit in the estate proceeding then 

pending in an El Paso probate court. In response, Dr. Ewing sought to transfer 
3

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 only to refile the identical lawsuit in a county court at law in El

Paso on February 9, 2018—two years and two months after Milton’s death. The 

county court at law also transferred the new lawsuit to Tarrant County. 

Recognizing that the new filing date of February 9, 2018, was past the two-year 

statute of limitations governing health care liability claims, Dr. Ewing filed for 

traditional summary judgment. The trial court eventually1 granted Dr. Ewing’s 

motion and entered a take-nothing judgment. 

Discussion

In a single issue, Margaret argues that the trial court erred by granting Dr. 

Ewing’s motion for summary judgment and dismissing 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 light most favorable 

 

1The trial court conducted a hearing on the motion on June 22, 2018, and then 

denied the motion but stated that it would give Dr. Ewing permission to pursue a 

permissive interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014. But 

the trial court’s order did not comply with the strict jurisdictional 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, 2018 WL 5289380, at *1–2 (Tex. App.—Fort 

Worth Oct. 25, 2018, no pet.) (mem. op.). Following our dismissal of the attempted 

appeal, the trial court vacated 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 nonmovant if reasonable jurors 

could, and disregarding evidence contrary to the nonmovant unless reasonable jurors 

could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 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 summary judgment on an affirmative defense if the defendant 

conclusively proves all elements of that defense. Frost Nat’l Bank v. Fernandez, 315 

S.W.3d 494, 508–09 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c). To accomplish this, 

the defendant must present summary-judgment evidence that conclusively establishes 

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 for traditional summary judgment on the basis that 

Margaret’s wrongful death suit was filed after the applicable two-year statute of 

limitations had expired. See Tex. Civ. Prac. & Rem. Code Ann. § 74.251(a) (“[N]o 

health care liability claim may be commenced unless the action is 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.”). Applying this two-year statute of limitations, 

Margaret’s deadline to file suit was November 29, 2017. 
5

In an 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 

gives notice of her health care liability claim, with an attached medical authorization 

form, in accordance with the chapter. See id. § 74.051(c). If applicable, this tolling 

provision would have extended Margaret’s filing deadline beyond her February 2, 

2018 filing date. 

But the medical authorization form provided by Margaret did not comply with 

Chapter 74’s requirements. Chapter 74 provides a specific form to be used for the 

medical authorization. Id. § 74.052(c). Although Margaret used the correct form, she 

did not provide the names and addresses of all treating physicians or health care 

providers who had “examined, evaluated, or treated” Milton in connection with the 

injuries he had sustained in connection with his health care liability claim, nor did she 

provide the names and addresses of any providers who had “examined, evaluated, or 

treated” Milton in the five-year period prior to Dr. Ewing’s treatment of him. Both 

are required by Section 74.052(c). See id.

Margaret argues on appeal that she “substantially complied” with the statute 

and provided Dr. Ewing and his insurance carrier with Milton’s medical records. But 

the requirements of the statute are clear—the medical authorization form must 

include a list of treating physicians: those who treated the claimant in relation to the 

incident giving rise to liability and those who treated the claimant in the five years 

prior. Id. Several of our sister courts have held that the failure to provide a complete 
6

list of health care providers as required by the statute precludes a plaintiff from relying 

on the tolling provision, and they have rejected substantial-compliance arguments

similar to Margaret’s. See, e.g., Galloway v. Atrium Med. Ctr., L.P., 558 S.W.3d 316, 320–

21 (Tex. App.—Houston [14th Dist.] 2018, no pet.); Davenport v. Adu-Lartey, 526

S.W.3d 544, 552 (Tex. App.—Houston [1st Dist.] 2017, pet. denied); Borowski v. Ayers, 

524 S.W.3d 292, 301–03 (Tex. App.—Waco 2016, pet. denied).

For example, in Galloway, the decedent’s estate and children sued medical 

providers for health care liability claims arising from the decedent’s death. 558 

S.W.3d at 316. The medical authorization form provided by the plaintiffs did not list 

(1) the health care providers who had provided treatment to the decedent in 

connection with the injuries alleged to have been sustained in 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 health care liability claim. Id. at 321. The Fourteenth Court

held that “[t]hese defects frustrated the purpose behind section 74.052’s disclosure 

requirements and hindered appellees’ ability to engage in pre-suit investigation, 

negotiation, and settlement with respect to appellants’ claims.” Id.; see also Davenport, 

526 S.W.3d at 552–53 (explaining that omission of treating-physician information 

could interfere with a defendant’s ability to investigate the plaintiff’s claims); Borowski, 

524 S.W.3d at 301–03 (collecting cases and holding that “failing to list any of the

names and addresses of a patient’s treating physicians or health care providers during 
7

the five years before the incident made the basis of the notice of health care claim 

seriously hinders the statutory design to enhance pre-suit investigation, negotiation, 

and settlement”).

2 The court rejected the appellants’ arguments that they had 

“substantially complied” with Section 74.052’s requirements and held that the 

appellants’ authorization form did not toll the statute of limitations. Id. at 322; see also 

Davenport, 526 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 courts. The language of Sections

74.051 and .052 is clear. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.051(a) (requiring 

that the notice “must be accompanied by” an authorization form “as required under 

Section 74.052”), .052 (stating that the authorization form “shall” be in the “following 

form,” which requires lists of treating physicians and medical providers). We are 

required to apply those words as written and according to their common meaning. See

State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). The failure or refusal to provide a 

medical authorization form listing the physicians or health care providers who 

 

2Margaret’s reliance on Mock v. Presbyterian Hosp. of Plano, 379 S.W.3d 391 (Tex. 

App.—Dallas 2012, pet. denied), and Rabatin v. Kidd, 281 S.W.3d 558 (Tex. App.—El 

Paso 2008, no pet.), are misplaced. In Mock, the authorization form contained one

improperly-completed blank but otherwise “complied with the statutory 

requirements.” 379 S.W.3d at 395. Rabatin was decided prior to the Texas Supreme 

Court’s decision in Carreras v. Marroquin, 339 S.W.3d 68 (Tex. 2011), which clarified 

the requirements plaintiffs must meet to avail themselves of the tolling provision in 

Chapter 74. See also Borowski, 524 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 physicians). 
8

examined, evaluated, or treated the patient in the five years leading up to the alleged 

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

connection with that event, poses a risk of undermining the defendant’s ability to 

investigate the claims, negotiate 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

301–03. Accordingly, we overrule Margaret’s only issue and affirm the trial court’s 

order granting summary judgment in favor of Dr. Ewing. 

Conclusion

Having overruled Margaret’s only issue, we affirm the trial court’s judgment. 

/s/ Bonnie Sudderth

Bonnie Sudderth

Chief Justice

Delivered: January 16, 2020