Dorothy Hampton v. Leonard Thome

Supreme Court of Texas
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No. 22-0435
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Dorothy Hampton,
Petitioner,

v.

Leonard Thome,
Respondent

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On Petition for Review from the
Court of Appeals for the Ninth District of Texas
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Argued September 14, 2023

JUSTICE BLACKLOCK delivered the opinion of the Court, in which
Chief Justice Hecht, Justice Lehrmann, Justice Devine, Justice Busby,
Justice Bland, Justice Huddle, and Justice Young joined.

JUSTICE BOYD filed a dissenting opinion.

The Legislature requires “[a]ny person . . . asserting a health care
liability claim” to “give written notice of such claim” to certain
defendants “at least 60 days before the filing of a suit.” TEX. CIV. PRAC.
& REM. CODE § 74.051(a). The notice “must be accompanied by a medical
authorization in the form specified by” section 74.052. Id. § 74.052(a).
This medical authorization form enables the defendant to obtain the
plaintiff’s medical records from other health care providers.
The notice required by section 74.051(a) can affect the statute of
limitations as follows: “Notice 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). This Court held in
Jose Carreras, M.D., P.A. v. Marroquin that when a plaintiff gives the
notice without a medical authorization form, the 75-day tolling period is
unavailable. 339 S.W.3d 68, 74 (Tex. 2011).
In today’s case, the notice was accompanied by a medical
authorization form closely resembling the one required by the
Legislature. Relying on the tolling provision, the plaintiff filed suit
outside the usual statute of limitations but within the 75-day tolling
period offered by section 74.051(c). After discovery, the defendant
contended that the plaintiff’s medical authorization form omitted some
of the required health care providers and omitted a provision
authorizing disclosure of information by the plaintiff’s future health care
providers. The defendant argued that these deficiencies in the form
meant that the 75-day tolling period never applied, which meant that
sixteen months of litigation had all been for nothing because the suit
was filed outside the limitations period. The trial court rejected this
argument, but the court of appeals reversed, holding that the 75-day
tolling period had all along been unavailable due to deficiencies in the
medical authorization form the plaintiff served at the beginning of the
case. ___ S.W.3d ___, 2022 WL 802562, at *6 (Tex. App.—Beaumont
Mar. 17, 2022).

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We hold that an imperfect medical authorization form is
nevertheless a medical authorization form, which is sufficient to toll the
statute of limitations for 75 days under section 74.051(c). The plaintiff
in a health care liability claim has a statutory obligation to proactively
notify the defendant of the health care providers required to be disclosed
in the authorization form. A mistake or omission in this regard is not
without consequence, and courts should certainly never countenance
deliberate defiance of a statute’s clear commands. When it comes to
calculating the deadline for filing suit, however, Texas law 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.
Whatever imperfections or omissions existed in the plaintiff’s medical
authorization form in this case, it was genuinely a medical authorization
form resembling the one required by the Legislature, and the plaintiff
served it with the notice of claim. This was sufficient, as we understand
this statutory scheme, to trigger the 75-day tolling period, which means
the suit was timely.
Any defects or omissions in the medical authorization form that
came to light during the litigation could have been adequately addressed
by the statutory remedy of abatement, by additional discovery, or even—
where departure from the statutory requirements is deliberate or in bad
faith—by sanctions up to and including dismissal. The limitations
period, however, is a threshold matter that should, whenever possible,
be established with clarity at the outset. We do not understand Chapter
74 to require courts to entertain satellite litigation over whether the

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statute of limitations was actually never tolled because defects were
later discovered in the plaintiff’s medical authorization form.
The judgment of the court of appeals is reversed, and the case is
remanded to the court of appeals to consider the defendant’s remaining
arguments for reversal of the district court’s judgment.
I.
On March 25, 2014, Dorothy Hampton went to the Medical Center
of Southeast Texas with abdominal pain in her left side. She was
diagnosed with an abdominal hernia, and she underwent surgery the
next day. Two days later, Dr. Leonard Thome decided to release her
from the hospital. That night, Hampton fell at home and was found on
the floor the next day, confused and disoriented. She was quickly
readmitted to the hospital, and when asked about the fall, Hampton
claimed she could not remember the past 24 hours. Hampton was
released to a nursing facility after several more days in the hospital.
On November 9, 2015, Hampton’s lawyer sent a letter to Dr.
Thome notifying him of Hampton’s intent to bring a health care liability
claim alleging that Hampton was released prematurely from the
hospital. The letter claimed that Hampton developed pain in her right
shoulder after her fall and began treatment at Beaumont Bone and Joint
Institute. Attached to the letter was a medical authorization form
permitting Dr. Thome to obtain Hampton’s health information from the
listed providers. See TEX. CIV. PRAC. & REM. CODE § 74.052(c). The
authorization form listed two providers—the Medical Center of
Southeast Texas and Beaumont Bone and Joint Institute.

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Hampton sued on May 31, 2016, alleging that Dr. Thome’s
negligent decision to release Hampton from the hospital caused
Hampton’s fall and led to permanent mental and physical injury.
Because the events in question occurred in March 2014, the usual
two-year time clock had run out by the time Hampton sued. Hampton’s
petition, however, contended that her timely notice of the claim tolled
the statute of limitations for 75 days under section 74.051(c) of the Civil
Practice and Remedies Code.
After over a year of discovery, Dr. Thome moved in August 2017
for summary judgment on limitations grounds. He contended that the
limitations period expired on March 28, 2016, and that Hampton’s notice
had not tolled the statute of limitations because it was accompanied by
a deficient medical authorization form. Dr. Thome alleged that the
medical authorization form failed to meet three statutory requirements:
(1) it omitted a required provision authorizing Dr. Thome to obtain
records from providers who would treat Hampton after the date of the
authorization form; (2) it did not list several providers who treated
Hampton in connection with her alleged injuries; and (3) it did not list
several providers who had treated Hampton in the five years preceding
the incident.
The district court denied Dr. Thome’s motion for summary
judgment. A jury trial proceeded on May 6, 2019. The jury found that
Dr. Thome’s negligence proximately caused Hampton’s injuries and
returned a $555,678 verdict. The court rendered a final judgment of
$255,678, plus interest and costs, in keeping with the statutory limit on
noneconomic damages for health care liability claims. See id. § 74.301.

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Dr. Thome filed a motion for judgment notwithstanding the verdict, in
which he reiterated his argument that the claims were barred by
limitations because of deficiencies in the medical authorization form.
The court denied the motion, reasoning that Dr. Thome had not shown
prejudice caused by the deficiencies in the form.
The court of appeals reversed. It held that the form Hampton
provided to Dr. Thome was insufficient to trigger the 75-day tolling
period because it fell “well short of authorizing Dr. Thome to obtain the
scope of information he was entitled to obtain.” 2022 WL 802562, at *5.
The court of appeals found that the form listed “only two of Hampton’s
thirteen health care providers” that treated Hampton for her injuries or
had seen her in the five-year period preceding the incident. Id. at *6. It
further found that the form failed to include “language that extends [the
release authorization] to health care providers that treated Hampton
after the date Hampton signed the release” as directed by the statute.
Id. The court of appeals held that tolling was unavailable because the
defects in Hampton’s form were at least as severe as the defects
identified in several other appellate decisions in which tolling was
denied. Id. The court of appeals rendered judgment against Hampton
because, with the tolling provision unavailable, the two-year statute of
limitations barred her suit.
II.
We begin by noting that Hampton’s lawyer could have insulated
his client’s claims from any question of timeliness by filing suit within
the usual two-year limitations period rather than relying on the
statute’s 75-day tolling provision. Neither the record on appeal nor

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counsel’s statements at oral argument reveal any reason the extra 75
days were needed. By relying on the tolling provision, Hampton’s
counsel added to the defendant’s arsenal of arguments in exchange for
little apparent benefit to Hampton. Regardless of how this appeal is
resolved, the decision to pin Hampton’s entire case on the availability of
the 75-day tolling period has generated extensive additional litigation
that remains pending seven years after the suit was filed and that could,
it appears, have easily been avoided altogether by a slightly earlier
filing. Statutes of limitation are harsh, and the practice of waiting until
the last conceivable moment to file a lawsuit is fraught with peril,
particularly when the plaintiff relies on a tolling theory about which
there is even the slightest doubt.
Be that as it may, the history of this litigation cannot be undone,
and we must confront the question of what effect, if any, the deficiencies
in Hampton’s medical authorization form have on the application of
section 74.051(c)’s 75-day tolling period.
As with any question of statutory interpretation, we begin with
the statute’s text. Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 45 (Tex.
2015). “Health care liability claims” are subject to Chapter 74 of the
Civil Practice and Remedies Code. Section 74.051(a) imposes a pre-suit
notice requirement:
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 least 60 days before the filing of a suit in any court
of this state based upon a health care liability claim. The
notice must be accompanied by the authorization form for

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release of protected health information as required under
Section 74.052.
TEX. CIV. PRAC. & REM. CODE § 74.051(a). The statute of limitations for
health care liability claims is two years. Id. § 74.251(a). Perhaps
because the 60-day pre-suit notice requirement may have the practical
effect of truncating the time available to a plaintiff to investigate and
prepare his suit, the Legislature provided a brief tolling period:
Notice 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, and this tolling
shall apply to all parties and potential parties.
Id. § 74.051(c).
Section 74.052(a) reiterates section 74.051(a)’s requirement that
a medical authorization form must accompany the pre-suit notice:
“Notice of a health care claim under Section 74.051 must be
accompanied by a medical authorization in the form specified by this
section.” It then provides an abatement remedy for the defendant when
the plaintiff does not provide the required medical authorization:
Failure to provide this authorization along with the notice
of health care claim shall abate all further proceedings
against the physician or health care provider receiving the
notice until 60 days following receipt by the physician or
health care provider of the required authorization.
Id. § 74.052(a). Section 74.052 goes on to lay out, in great detail, the
precise contents of the medical authorization form that must accompany
the pre-suit notice. Id. § 74.052(c).
III.
Several years ago, this Court in Jose Carreras, M.D., P.A. v.
Marroquin held that mere service of pre-suit notice without the required

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authorization form is insufficient to trigger the statute’s 75-day tolling
provision. 339 S.W.3d at 74. In that case, the plaintiffs failed to send
any medical authorization form before the statute of limitations expired.
Id. at 70. We held that a plaintiff must provide both the notice of claim
and the medical authorization form to obtain tolling. Id. at 74. We did
not, however, address whether notice accompanied by a medical
authorization form that turns out to be incomplete or erroneous is
sufficient to trigger tolling. Today’s case asks that question.
Decisions of the courts of appeals on the question have varied.
Some essentially hold that most errors or omissions in the authorization
form render the 75-day tolling period unavailable. See, e.g., Borowski v.
Ayers, 524 S.W.3d 292, 304–06 (Tex. App.—Waco 2016, pet. denied);
Tanhui v. Rhodes-Madison, No. 12-20-00240-CV, 2021 WL 1916819, at
*3 (Tex. App.—Tyler May 12, 2021, no pet.); Salinas v. Methodist
Healthcare Sys., No. 07-19-00026-CV, 2019 WL 3807871, at *2–3 (Tex.
App.—Amarillo Aug. 13, 2019, no pet.).
Other courts have looked to whether the deficiencies in the
authorization form frustrate the defendant’s ability to conduct the
pre-suit investigation envisioned by the statute. See, e.g., Davenport v.
Adu-Lartey, 526 S.W.3d 544, 554 (Tex. App.—Houston [1st Dist.] 2017,
pet. denied); Colia v. Ewing, No. 02-19-00109-CV, 2020 WL 241978, at
*3 (Tex. App.—Fort Worth Jan. 16, 2020, pet. denied). Yet another court
has asked whether any errors or omissions in the medical authorization
form ultimately prejudiced the defendant. Maypole v. Acadian
Ambulance Serv., Inc., 647 S.W.3d 533, 550 (Tex. App.—Dallas 2022,

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pet. dism’d by agr.). 1 One court of appeals found an authorization form
sufficient for tolling purposes even though “the authorization forms
excluded the doctors’ records who had treated her within five years of
the treatment listed as forming the basis of the claim.” Rabatin v. Kidd,
281 S.W.3d 558, 562 (Tex. App.—El Paso 2008, no pet.).
While none of these decisions is an unreasonable application of
Chapter 74 and this Court’s precedent, most of the approaches adopted
by the courts of appeals share the same two drawbacks. First, they
facilitate protracted litigation and appeals that embroil the litigants and
the courts in lengthy and costly debates about the contents of a pre-suit
discovery form rather than debates about the merits of the claims. 2
Where possible, courts should seek to discourage non-merits satellite
litigation of this nature unless a statute or the Constitution requires it.
Second, the approach adopted by some courts of appeals subjects the
statute of limitations to retroactive adjustment based on fact-intensive
determinations made later in the litigation. But particularly “in the
area of limitations, bright-line rules generally represent the better
approach.” Erikson v. Renda, 590 S.W.3d 557, 566 (Tex. 2019). Ideally,

1 We granted the petition for review in Maypole and set the case for oral

argument in conjunction with Hampton’s case. The parties in Maypole,
however, settled their differences before oral argument, and we dismissed the
appeal at their request. See TEX. R. APP. P. 42.1(a)(2).
2 This case vividly demonstrates the problem: Sixteen months after the

medical authorization form was served, after many months of discovery, the
defendant first raised the argument that the suit must be dismissed on
limitations grounds because the form was incomplete. We do not criticize the
defense, which relied on several appellate decisions supporting its tactic. Yet
here we are, over six years later, and the parties are still debating the
sufficiency of the initial form rather than the merits of Hampton’s claims.

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the deadline to sue should always be calculable with certainty at the
outset of the case and should never vary retroactively depending on the
outcome of later litigation. Perfect certainty at the outset may not
always be possible, particularly when applying tolling provisions, but we
should prefer clarity in this area whenever it can be had.
Carreras provides a bright-line rule, which can be applied with
certainty at the outset of the litigation: If no medical authorization form
accompanies the notice, the 75-day tolling provision is not triggered. Yet
what happens when there is a medical authorization form, but it turns
out to be incomplete or erroneous? The existence of such deficiencies
will often not be known until later in the litigation, sometimes much
later. If Chapter 74’s text required courts to determine the limitations
period by answering questions like whether the authorization form
turns out to have omitted required providers or whether any such
omissions prejudiced the defendant, then courts would be obligated to
do so even if we think that such an approach increases wasteful
litigation and blurs lines that are better left bright. By our reading,
however, Chapter 74 contains no such requirement. Instead, it offers
temporary abatement as a remedy for the plaintiff’s failure to disclose
providers as required. And it requires only that a medical authorization
form accompany the pre-suit notice, not that a perfect medical
authorization form do so.
Begin with the tolling provision itself, section 74.051(c). The rule
is simple: “Notice given as provided in this chapter shall toll the
applicable statute of limitations [for 75 days].” It is thus the notice, not
the medical authorization form, that triggers tolling. The authorization

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form is not irrelevant to the tolling question, however. Section 74.051(a)
provides that the notice must “be accompanied by the authorization
form . . . as required under Section 74.052.” Section 74.052(a) likewise
dictates that the notice “must be accompanied by a medical
authorization in the form specified by this section.” Relying on these
provisions, we held in Carreras that a notice without the required
authorization form is not “[n]otice given as provided in this chapter” and
therefore does not trigger tolling. 339 S.W.3d at 72–73.
The statute does not say how an incomplete or erroneous
authorization form affects the tolling question. 3 It does, however,
contemplate that an authorization form may need to be “modified” after
it has first been served. See TEX. CIV. PRAC. & REM. CODE § 74.052(b).
Of course, only a form that turns out to have been erroneous or
incomplete in some respect would need to be modified. And when

3 The dissent says the Court is relying on “policy” or “purpose-based”

arguments to achieve “a judicial rewriting of the statute.” Post at 10 (Boyd, J.,
dissenting). Obviously not. We have rejected any such approach to statutory
interpretation on many occasions, and we do so again today. Our disagreement
with the dissent is not over statutory-interpretation methodology. Instead, the
disagreement is over which questions this statute answers. The dissent
believes, wrongly we think, that the statutory text tells us how an erroneous
authorization form affects the tolling question. We conclude that the text does
not answer that question, although as we explain below, the text does provide
some indication that retroactive revocation of tolling for erroneous
authorization forms is not its envisioned result. Trying to squeeze blood from
an orange by forcing the text to definitively answer a question it does not
answer is just as much “a judicial rewriting of the statute” as anything else.
Answering a question the statutory text does not answer naturally may involve
consideration of matters outside the text, such as the prudential notion that
early and definitive identification of the limitations deadline is preferable,
when possible, to protracted non-merits satellite litigation about the content of
a discovery form.

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modification is necessary, the statute states the consequence—a 60-day
abatement, at the request of the defendant:
If the authorization required by this section is modified or
revoked, the physician or health care provider to whom the
authorization has been given shall have the option to abate
all further proceedings until 60 days following receipt of a
replacement authorization that must comply with the form
specified by this section.
Id. 4 The statute states its own remedy for an incomplete or erroneous
medical authorization form—abatement—and in the absence of a
textual indication otherwise, we will not impose the additional remedy
of deeming an incomplete or erroneous form to be no form at all for
tolling purposes. Beyond the statutory remedy of abatement for
additional discovery, sanctions may also be an appropriate response to
deliberate evasion of the statutory requirements. But we see nothing in
the statute indicating that an incomplete or erroneous medical
authorization form should be considered no form at all for tolling
purposes.
The distinction between an incomplete or erroneous form, as is
the case here, and an altogether absent form, as was the case in
Carreras, resembles a distinction on which we previously relied in
Ogletree v. Matthews, another Chapter 74 case. 262 S.W.3d 316 (Tex.
2007). Section 74.351 requires a health care liability claimant to serve
an expert report by a certain time. If the report is timely but deficient,

4 Similarly, the complete failure to provide an authorization form will

“abate all further proceedings . . . until 60 days following receipt by the
physician or health care provider of the required authorization.” TEX. CIV.
PRAC. & REM. CODE § 74.052(a).

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the court can grant a 30-day extension to cure that deficiency. TEX. CIV.
PRAC. & REM. CODE § 74.351(c). In Ogletree, the defendant argued that
the plaintiff should not get the 30-day extension because the expert
report was of the wrong kind altogether; it contained testimony from
nurses rather than from a physician. 262 S.W.3d at 318–19. Because
no real “report” was served in the first place, the argument went, the
court could not grant the 30-day extension. Id. We disagreed, because
“a deficient report differs from an absent report.” Id. at 320.
Similar reasoning applies here. A partially inaccurate or
incomplete medical authorization form is nevertheless a medical
authorization form. And the medical authorization form proffered by
Hampton, which resembles the statutorily required form, is “in the form
specified by” section 74.052, even if its substance contains errors or
omissions. TEX. CIV. PRAC. & REM. CODE § 74.052(a) (emphasis added).
We cannot say that the existence of errors or omissions in a medical
authorization form means that no notice at all has been “given as
provided in this chapter.” Id. § 74.051(c). When no authorization form
is offered at all, there has obviously been no attempt to give notice “as
provided in this chapter.” But when a medical authorization form has
been served, and when this has generally been done “in the form
specified by” section 74.052, then notice has been “given as provided in
this chapter”—even if the substance of the form contains deficiencies.
In the absence of more explicit guidance from the Legislature, we
will not infer from this statutory scheme either (1) a rule that only fully
accurate authorization forms trigger tolling, or (2) a rule that bars
tolling if inaccuracies in the authorization form prejudice the defendant.

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The best indication provided by the statutory text is to the contrary.
When the authorization form requires modification—as incomplete or
erroneous forms naturally would—the statutory consequence is
abatement to allow additional discovery, not revocation of tolling. See
id. § 74.052(b); supra pp. 12–13.
Although we hold that an incomplete or erroneous medical
authorization form is still an authorization form for tolling purposes, we
also acknowledge 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.” Id. § 74.052(a); cf. Ogletree, 262 S.W.3d at 323 (Willett,
J., concurring) (explaining that an expert report can be so grossly
deficient as to be no report at all). No such gross deficiency is alleged
here.
Nor do we foreclose the possibility that an erroneous or
incomplete authorization form proffered in a bad-faith attempt to
mislead the defendant or the court should count as no authorization
form at all under the old rule that “fraud vitiates whatever it touches.”
See Stonecipher’s Est. v. Butts’ Est., 591 S.W.2d 806, 809 (Tex. 1979)
(quoting Morris v. House, 32 Tex. 492, 495 (1870)). Such egregious
abuses will be rare, we trust, and trial courts are equipped to deal with
them—whether by sanctions or by refusing tolling because no genuine
authorization form has been served.
For the vast majority of cases, the bright-line rule adopted herein
should apply. If the pre-suit notice required by section 74.051 is
accompanied by a medical authorization form that resembles the

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statutorily required form but that turns out to be erroneous or
incomplete, the 75-day tolling period provided by section 74.051(c)
remains available.
IV.
The judgment of the court of appeals is reversed, and the case is
remanded to the court of appeals for further proceedings consistent with
this opinion.

James D. Blacklock
Justice

OPINION DELIVERED: March 8, 2024

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