Supreme Court of Texas
                             ══════════
                              No. 22-0435
                             ══════════

                           Dorothy Hampton,
                                Petitioner,

                                       v.

                            Leonard Thome,
                               Respondent
   ═══════════════════════════════════════
               On Petition for Review from the
       Court of Appeals for the Ninth District of Texas
   ═══════════════════════════════════════

       JUSTICE BOYD, dissenting.

       Suppose you tell your neighbor, “I will give you a hundred dollars
if you cut my grass this week.” Your neighbor doesn’t cut your grass this
week, but next week he asks you for the hundred dollars. “But you didn’t
cut my grass last week,” you protest. “Well,” says your clever neighbor,
“you didn’t say I wouldn’t get the money if I didn’t cut your grass!” True
enough, you told him what he’d get if he cut your grass, but you didn’t
say he wouldn’t get it if he didn’t.
       According to the Court, you owe your neighbor a hundred dollars.
The Texas Medical Liability Act tolls its two-year statute of limitation
for 75 days if a claimant gives timely notice “accompanied by” a
“specified” medical authorization form that identifies all of her health
care providers. TEX. CIV. PRAC. & REM. CODE §§ 74.051(c), .052(a). But it
doesn’t say the claimant doesn’t get the tolling if the claimant fails to
give the notice, or if the notice isn’t timely, or if the notice is not
accompanied by the authorization form, or if the form fails to identify all
of the claimant’s health care providers. According to the Court, it simply
“does not answer that question.” Ante at 12 n.3. But of course, it does. If
a claimant doesn’t do what the statute says a claimant must do to get
the tolling, that claimant doesn’t get the tolling.
       Dorothy Hampton alleges Dr. Leonard Thome negligently
released her from the hospital before he should have. But Hampton sued
Thome more than two years after her claim accrued. As a result, the
Texas Medical Liability Act’s statute of limitations bars her claim. See
TEX. CIV. PRAC. & REM. CODE § 74.251(a).1 Hampton argues, however,
that the limitations period was tolled for 75 days after she gave Thome
written notice of her claim, and that she filed suit within that 75-day
grace period.
       The Act provides that “[n]otice given as provided in this chapter
shall toll the applicable statute of limitations to and including a period
of 75 days following the giving of the notice.” Id. § 74.051(c) (emphasis
added). Notice “as provided” in Chapter 74 “must be accompanied by the



       1 “Notwithstanding any other law and subject to Subsection (b), no
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. . . .” TEX. CIV. PRAC. & REM.
CODE § 74.251(a).




                                       2
authorization form for release of protected health information as
required under Section 74.052.” Id. (emphasis added). Section 74.052
requires “a medical authorization in the form specified by this section.”
Id. § 74.052(a) (emphasis added). It then “specifies” the form—not by
describing it, but by providing it. In what can only be described as an
uncommon statutory mandate, Section 74.052(c) states: “The medical
authorization form required by this section shall be in the following
form,” and then sets forth the “specified” authorization form in its
entirety. Id. § 74.052(c) (emphases added).2
      By completing and providing the statutorily specified form, the
claimant authorizes the defendant provider to “obtain and disclose,”
within specified parameters, specified health-care information for
specified purposes. Id. A properly completed form requires any other
medical provider who receives the form to produce the information
specified in the form to the defendant provider. Id. By including
numerous blanks and checkboxes, the form requires the claimant to
provide her name and contact information, the name of the defendant
provider who is authorized to obtain her records, the information she is
authorizing to be disclosed, and the specific purposes for the disclosure.
Id.
      To specify the information she is and is not authorizing to be
disclosed, the form requires the claimant to provide the names and
addresses of three types of providers who possess her health-care
information: (1) providers who have treated her for the injuries her



      2 The required form is reprinted as an Appendix to this opinion.




                                     3
claim is based on, (2) providers who have treated her during the five
years before she received those injuries, and (3) providers she is
excluding from the authorization because she contends the information
they have regarding her health care “is not relevant” to her claim. Id.
For the providers she is excluding from the authorization, the form
requires her not only to provide their names, but to either “[l]ist” the
“inclusive dates of examination, evaluation, or treatment to be withheld
from disclosure,” or to “state ‘none.’” Id.
       By giving claimants the opportunity to list providers who possess
only irrelevant information, the form permits “claimants to exclude
irrelevant and therefore privileged information from the scope of a
release” and “to act as gatekeepers of their own privileged health
information.” In re Collins, 

 (Tex. 2009). But a
claimant who wishes to exclude a provider from the authorization
cannot simply omit the provider’s name from the form. 

 Instead, she
must include the provider’s name and “[l]ist” the specified information.
TEX. CIV. PRAC. & REM. CODE § 74.052(c).
       We have addressed Section 74.052(c) and the form it specifies in
several prior cases. We have noted that by actually providing the form
itself, the statute “detail[s]” the required authorization. Tex. W. Oaks
Hosp., LP v. Williams, 

 (Tex. 2012). It “prescribe[s]”
not just the “form” the claimant must use, but also the “precise
language” the form must include. Collins, 

. In other
words, it prescribes both “the form and content of the required
authorization form.” Jose Carreras, M.D., P.A. v. Marroquin, 

, 69–70 (Tex. 2011) (emphasis added) (citing TEX. CIV. PRAC. & REM.




                                      4
CODE § 74.052(c)). As we explained just last term, Section 74.052(c) does
not merely require a claimant to deliver a particular form, it requires a
claimant “to provide a medical authorization form identifying” her
medical providers. In re Liberty Cnty. Mut. Ins. Co., 

,
175–76 (Tex. 2023) (emphasis added).
      We have already agreed that, to receive the benefit of the 75-day
tolling period, a claimant “must provide both the statutorily required
notice and the statutorily required authorization form.” Carreras, 

. And the statutorily required authorization form requires
the claimant to provide specific information, including the names of
providers who have her health-care information and billing records,
even if the claimant thinks the information they have is irrelevant to
her claims. Yet as the Court acknowledges, Hampton never provided the
statutorily required authorization form. Instead, she provided a form in
which she identified only two of her medical providers, omitting eleven
providers the statutorily specified form required her to identify.
      The most the Court can generously suggest is that the form she
provided “closely resembl[es] the one required by the Legislature,” ante
at 2, yet it concedes that her form was “incomplete,” “erroneous,” and
had “deficiencies” because it “omitted some of the required health care
providers and omitted a provision authorizing disclosure of information
by [Hampton’s] future health care providers.” Id. at 2, 9. More
specifically, it omitted several providers who treated her for the injuries
on which she bases her claims against Thome and several providers who
had treated her within the five years before those injuries. See id. at 5.
She did not list those providers in the third category, claiming that the




                                    5
information they had about her is not relevant to her claims. Instead,
she simply failed to identify them at all, even though the statutorily
specified form required her to list them.
      The Court attempts to provide some text-based reasons why
Hampton’s form was good enough to trigger the 75-day tolling despite
its failure to comply with the statutory requirements. First, the Court
says, it’s “the notice, not the medical authorization form, that triggers
tolling.” Id. at 11. But in fact, it’s the notice “given as provided in this
chapter” that triggers tolling and—as the Court concedes—“notice
without the required authorization form is not ‘[n]otice given as provided
in     this    chapter.’”     Id.        at   12     (emphasis      added)
(quoting Carreras, 339 S.W.3d at 72–73).
      But, the Court asserts, the statute merely requires “a” medical
authorization form, not a “perfect” one, and it does not “say how an
incomplete or erroneous authorization form affects the tolling question.”
Id. at 11–12. But of course, it does. It requires the claimant to complete
the form expressly set forth in the statute itself, and that form requires
the claimant to fill in blanks to identify her medical providers, whether
they treated her for her claim-based injuries during the five years before
those injuries or for matters having no relevance to her claim at all. And
it clearly states that tolling is available only if the claimant timely
provides the required notice accompanied by the specified authorization.
Under the statute’s plain language, a claimant who fails to timely
provide the required notice with the specified authorization form cannot
rely on the tolling period.




                                     6
      As we have said, the statutorily specified form enables the
defendant provider to have “access to the claimant’s pertinent medical
records.” Carreras, 

. In fact, the statute expressly states
that all parties are “entitled to obtain complete and unaltered copies of
the [claimant’s] medical records” from all other parties upon request,
and it allows the claimant to provide the specified medical authorization
“in the form required by Section 74.052” as a means of complying with
that requirement. TEX. CIV. PRAC. & REM. CODE § 74.051(d) (emphases
added). In her pleadings, the claimant must confirm that she has “fully
complied” with Section 74.052’s requirements. Id. § 74.051(b) (emphasis
added). If she hasn’t provided the information the statutorily specified
form requires her to provide, she has not fully complied with Section
74.052’s requirements.
      Despite the statute’s plain language and despite what we’ve
previously said in Texas West Oaks Hospital, Collins, Carreras, and
Liberty County Mutual Insurance, the Court meekly suggests today that
Section 74.052 merely prescribes use of “‘the form specified’ by section
74.052,” ante at 14, not the form’s “detail[s],” Tex. W. Oaks Hosp., 

, “precise language,” Collins, 

, and
“content” Carreras, 339 S.W.3d at 69–70, “identifying” the claimant’s
providers, Liberty Cnty. Mut. Ins., 679 S.W.3d at 175–76. But of course,
it does. The Court acknowledges, as it must, “the possibility that a
document proffered as a medical authorization form may be so grossly
deficient on its face that it could never genuinely be called ‘a
medical authorization in the form specified by this section.’” Ante at 15
(quoting TEX. CIV. PRAC. & REM. CODE § 74.052(a)). But if all Section




                                    7
74.052 requires is delivery of the “form” specified in Section 74.052(c),
one that fails to identify any providers is as compliant as one that fails
to identify a dozen, or a few, or even one. If, as the Court suggests, a
grossly deficient form is not good enough but a slightly (or moderately?)
deficient form is, courts will ultimately be required to draw a line
somewhere between the two and figure out which side of that line any
particular form falls on. Which means, of course, the Court’s “bright-
line” rule is far blurrier than the Court is willing to admit. Id. at 15.
       Still purporting to rely on the statute’s text, the Court also
suggests that the statute provides for “temporary abatement” as the sole
“remedy for the plaintiff’s failure to disclose providers as required.” Id.
at 11.3 That assertion concedes, of course, that the statute “require[s]”
claimants to “disclose providers,” contradicting the Court’s assertion
that the statute merely requires delivery of the “form.” But more
importantly, we have already rejected the Court’s argument about
abatement.


       3 The statute provides for temporary abatement in two circumstances.

First, a claimant’s failure to provide the specified authorization form with the
notice “shall abate all further proceedings” until sixty days after the provider
defendant receives “the required authorization.” TEX. CIV. PRAC. & REM.
CODE § 74.052(a). And second, if the claimant provides the required
authorization but later modifies or revokes it, the provider defendant may
choose to abate all proceedings until sixty days after the claimant provides a
“replacement authorization” that complies “with the form specified” by
Section 74.052(c). Id. § 74.052(b). If, as the Court contends, all that
Section 74.052(c) requires is use of “the form specified” without regard to its
contents, ante at 14, it would not be possible for a claimant to provide an
“authorization required by this section” and then modify it and replace it with
“the form specified by this section.” The statute’s reference to modification of
the required form, in other words, must necessarily refer to the required
contents, and not merely to the “form.”




                                       8
      The claimants in Carreras made the same argument the Court
makes today: that “service of an authorization form is unnecessary to
toll the statute of limitations because a separate remedy—abatement—
is provided for failure to accompany notice with an authorization form.”
Carreras, 

. We expressly rejected that argument in
Carreras, explaining that the abatement provisions apply only when a
claimant provides notice of her claim before limitations runs, so that
tolling is neither necessary nor required:
                [A]batement has a use in situations in which
                the tolling provision is not at issue. If notice is
                provided without an authorization well
                within the statute of limitations, and the case
                could be filed sixty days later and still fall
                within the limitations period, the defendant’s
                statutory remedy is to halt proceedings until
                an authorization form is received. The
                abatement remedy fulfills that purpose.

 at 73–74.

      As the Court notes, we addressed in Carreras the issue of whether
tolling is available when the claimant fails to serve an authorization
form at all, as opposed to an authorization “as required” by
Section 74.052(c). But with regard to the statute’s abatement provisions,
that distinction is irrelevant. Section 74.052 treats the failure to provide
an authorization form the same as the provision of an authorization
form that requires modification. See TEX. CIV. PRAC. & REM. CODE
§§ 74.052(a), (b). Both warrant abatement. In either case, the claimant’s
failure to provide a form or her provision of an incomplete form results
in abatement only if the claimant provided the notice and filed suit




                                        9
before the two-year limitations period expired, making the tolling
provision irrelevant. See Carreras, 

. If tolling is at
issue—because the plaintiff relied on the 75-day tolling and filed after
limitations expired but served an incomplete or erroneous medical
authorization form—abatement would not be a remedy. See 

 at 73–
74. Instead, as would occur with a failure to provide any medical
authorization at all, tolling would not be available. See 

.
      Beyond its text-based arguments, the Court relies on several
policy- or purpose-based arguments. But we are dealing with a statute
of limitations, not a common-law requirement we may revoke or modify
based on policy preferences. None of the Court’s policy concerns justifies
a judicial rewriting of the statute or ignoring the requirements of “the
form specified” in Section 74.052(c). Maybe “Texas law” (meaning this
Court? Texas courts generally? The Legislature?) “favors bright-line
rules that enable parties and courts to know with certainty—as early in
the litigation as possible—whether the suit is time-barred.” Ante at 3.
But even if so, that’s irrelevant to the question of whether this statute
imposes the kind of “bright-line rule” the Court prefers. The same is true
about the Court’s preference that limitations periods should be “a
threshold matter that should, whenever possible, be established with
clarity at the outset.” Id. at 3. Maybe they should be, but whether this
one is depends on the statute’s requirements, not on what we think it
should (or should not) require.
      I suspect that, as a Court, we do in fact prefer to minimize
“satellite” and “protracted” litigation and appeals, and we may even
think limitations deadlines “should always be calculable with certainty




                                    10
at the outset of the case.” Id. at 3, 10–11. Considering the line-drawing
the Court’s approach requires to determine whether a particular
authorization form is “deficient” enough, however, its approach does
little to promote those purposes. Nor does it promote the purposes we’ve
previously said the authorization requirement promotes—to “provide[]
an opportunity for health care providers to investigate claims and
possibly settle those with merit at an early stage,” and to “reduc[e] the
costs of health care liability claims” by enabling provider defendants to
obtain relevant medical records from non-party health care providers
without having to rely on the “use of subpoenas or other formal
mandatory processes.” Collins, 286 S.W.3d at 916–18. Section 74.052
cannot promote those purposes if it doesn’t require a claimant to
complete “the form specified” by identifying her medical providers in the
blanks the specified form provides for that purpose.
       As the Court acknowledges, statutes of limitations can indeed be
harsh. Ante at 7. And as applied to this case, this one would be if we
applied the statute as written. By providing the 75-day tolling period,
the Legislature offers some leeway for some claimants, but only those
who are willing and able to provide the information the statutorily
specified authorization form requires. A claimant who is unwilling or
unable to provide the information does not lose her claim for that reason.
She simply loses the ability to rely on the 75-day tolling period and must
bring her claims within the applicable statute of limitations, like most
all other claimants must do. As the Court acknowledges, Hampton’s
dilemma “could, it appears, have easily been avoided altogether by a
slightly earlier filing.” Ante at 7.




                                       11
     For these reasons, I respectfully dissent.



                                       Jeffrey S. Boyd
                                       Justice

OPINION FILED: March 8, 2024




                                  12
                               APPENDIX

     AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH

                               INFORMATION

       Patient Name:______

       Patient Date of Birth:________

       Patient Address:_________________________________

       Street_________________ City, State, ZIP

       Patient Telephone:__________

       Patient E-mail:_________

NOTICE     TO   PHYSICIAN      OR   HEALTH     CARE   PROVIDER:      THIS

AUTHORIZATION FORM HAS BEEN AUTHORIZED BY THE TEXAS

LEGISLATURE PURSUANT TO SECTION 74.052, CIVIL PRACTICE

AND REMEDIES CODE. YOU ARE REQUIRED TO PROVIDE THE

MEDICAL     AND    BILLING     RECORDS    AS     REQUESTED    IN     THIS

AUTHORIZATION.

A.    I,   __________     (name      of   patient      or    authorized

representative), hereby authorize __________ (name of

physician or other health care provider to whom the

notice of health care claim is directed) to obtain and

disclose    (within      the    parameters      set   out   below)    the

protected       health   information      and    associated    billing




                                    13
records    described         below   for   the   following    specific

purposes (check all that apply):

              [    ]   To    facilitate    the    investigation       and

evaluation of the health care claim described in the

accompanying Notice of Health Care Claim.

              [ ] Defense of any litigation arising out of

the claim made the basis of the accompanying Notice of

Health Care Claim.

              [ ] Other - Specify:_________________

B. The health information to be obtained, used, or

disclosed extends to and includes the verbal as well as

written and electronic and is specifically described as

follows:

              1. The health information and billing records

in the custody of the physicians or health care providers

who have examined, evaluated, or treated __________

(patient) in connection with the injuries alleged to

have   been       sustained     in   connection     with    the     claim

asserted   in      the      accompanying   Notice   of     Health    Care

Claim.




                                     14
          Names   and   current   addresses   of   treating

physicians or health care providers:

           1.__________________________

           2.__________________________

           3.__________________________

           4.__________________________

           5.__________________________

           6.__________________________

           7.__________________________

           8.__________________________

This authorization extends to an additional physician or

health care provider that may in the future evaluate,

examine, or treat __________ (patient) for injuries

alleged in connection with the claim made the basis of

the attached Notice of Health Care Claim only if the

claimant gives notice to the recipient of the attached

Notice of Health Care Claim of that additional physician

or health care provider;

          2. The health information and billing records

in the custody of the following physicians or health

care providers who have examined, evaluated, or treated




                            15
__________ (patient) during a period commencing five

years prior to the incident made the basis of the

accompanying Notice of Health Care Claim.

           Names    and   current     addresses     of   treating

physicians or health care providers, if applicable:

           1.__________________________

           2.__________________________

           3.__________________________

           4.__________________________

           5.__________________________

           6.__________________________

           7.__________________________

           8.__________________________

C. Exclusions

       1. Providers excluded from authorization.

The following constitutes a list of physicians or health

care    providers   possessing      health   care    information

concerning      __________    (patient)      to      whom    this

authorization does not apply because I contend that such

health care information is not relevant to the damages

being claimed or to the physical, mental, or emotional




                              16
condition of __________ (patient) arising out of the

claim made the basis of the accompanying Notice of Health

Care Claim. List the names of each physician or health

care provider to whom this authorization does not extend

and the inclusive dates of examination, evaluation, or

treatment   to   be   withheld    from   disclosure,   or   state

"none":

     1.__________________________

     2.__________________________

     3.__________________________

     4.__________________________

     5.__________________________

     6.__________________________

     7.__________________________

     8.__________________________

            2.   By   initialing      below,   the   patient   or

patient’s personal or legal representative excludes the

following information from this authorization:

     ________ HIV/AIDS test results and/or treatment

     ________ Drug/alcohol/substance abuse treatment




                                 17
              ________ Mental health records (mental health

records do not include psychotherapy notes)

              ________      Genetic          information        (including

genetic test results)

D. The persons or class of persons to whom the patient’s

health information and billing records will be disclosed

or who will make use of said information are:

              1.   Any    and    all    physicians    or   health       care

providers providing care or treatment to __________

(patient);

              2. Any liability insurance entity providing

liability insurance coverage or defense to any physician

or health care provider to whom Notice of Health Care

Claim   has    been      given   with       regard   to   the    care   and

treatment of __________ (patient);

              3.   Any     consulting        or   testifying      experts

employed by or on behalf of __________ (name of physician

or health care provider to whom Notice of Health Care

Claim has been given) with regard to the matter set out

in the Notice of Health Care Claim accompanying this

authorization;




                                       18
          4.   Any      attorneys       (including   secretarial,

clerical, experts, or paralegal staff) employed by or on

behalf of __________ (name of physician or health care

provider to whom Notice of Health Care Claim has been

given) with regard to the matter set out in the Notice

of Health Care Claim accompanying this authorization;

          5. Any trier of the law or facts relating to

any suit filed seeking damages arising out of the medical

care or treatment of __________ (patient).

E. This authorization shall expire upon resolution of

the claim asserted or at the conclusion of any litigation

instituted in connection with the subject matter of the

Notice   of    Health     Care        Claim   accompanying   this

authorization, whichever occurs sooner.

F. I understand that, without exception, I have the right

to revoke this authorization at any time by giving notice

in writing to the person or persons named in Section B

above of my intent to revoke this authorization. I

understand that prior actions taken in reliance on this

authorization by a person that had permission to access

my protected health information will not be affected. I




                                 19
further         understand     the    consequence        of      any   such

revocation as set out in Section 74.052, Civil Practice

and Remedies Code.

G. I understand that the signing of this authorization

is not a condition for continued treatment, payment,

enrollment, or eligibility for health plan benefits.

H.   I    understand        that   information    used      or   disclosed

pursuant        to   this    authorization       may   be     subject    to

redisclosure by the recipient and may no longer be

protected by federal HIPAA privacy regulations.

         Name of Patient

         ____________________

         Signature of Patient/Personal or Legal

         Representative

         __________

         Description of Personal or Legal Representative’s

         Authority

         __________

         Date

         _______________




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