Pre-Suit Notice of Health Care Liability Claim and § 74.052 Authorization - Texas

PRE-SUIT NOTICE OF HEALTH CARE LIABILITY CLAIM AND AUTHORIZATION FOR RELEASE OF PROTECTED HEALTH INFORMATION — TEXAS

TABLE OF CONTENTS

1. Cover Letter and Notice
2. Statutory Predicate
3. Identification of Claimant and Treatment
4. Nature of the Claim
5. Demand and Reservation
6. Statute-of-Limitations Tolling Statement
7. Counsel Contact and Signature
8. Authorization Form for Release of Protected Health Information (§ 74.052)
9. Certificate of Mailing
10. Internal Compliance Checklist
11. Texas Practice Notes
12. Sources and References

1. COVER LETTER AND NOTICE

[LAW FIRM LETTERHEAD]

[DATE — record this; SOL tolling runs from the date of giving of notice]

VIA CERTIFIED MAIL — RETURN RECEIPT REQUESTED

CERTIFIED MAIL ARTICLE NO. [____ ____ ____ ____ ____ ____]

[DEFENDANT PHYSICIAN NAME], M.D.

[PRACTICE ADDRESS]

[CITY, TEXAS ZIP]

Re: NOTICE OF HEALTH CARE LIABILITY CLAIM PURSUANT TO TEX. CIV. PRAC. & REM. CODE § 74.051

Patient / Claimant: [CLAIMANT FULL LEGAL NAME]

Date(s) of Care at Issue: [DATE / DATE RANGE]

Facility / Site of Care: [FACILITY NAME]

Dear Dr. [LAST NAME]:

This firm represents [CLAIMANT NAME] ("Claimant") in connection with a health care liability claim arising out of the care that you rendered to Claimant on or about [DATE / DATE RANGE] at [FACILITY]. Pursuant to Tex. Civ. Prac. & Rem. Code § 74.051(a), this letter constitutes formal written notice of Claimant's intention to file suit against you not earlier than the 61st day after receipt of this notice, accompanied by the authorization for release of protected health information required by Tex. Civ. Prac. & Rem. Code § 74.052.

2. STATUTORY PREDICATE

This notice is given pursuant to:

• Tex. Civ. Prac. & Rem. Code § 74.051(a) — required 60-day pre-suit notice of a health care liability claim, by certified mail, return receipt requested;
• Tex. Civ. Prac. & Rem. Code § 74.052 — required authorization form for the release of protected health information;
• Tex. Civ. Prac. & Rem. Code § 74.001(a)(13) — definition of "health care liability claim"; and
• Tex. Civ. Prac. & Rem. Code § 74.251 — two-year statute of limitations and ten-year statute of repose.

3. IDENTIFICATION OF CLAIMANT AND TREATMENT

3.1. Claimant: [FULL LEGAL NAME]

• Date of birth: [__/__/____]
• Address: [STREET], [CITY, TEXAS ZIP]
• Telephone: [NUMBER]
• Email: [EMAIL]

3.2. Period of treatment at issue: From [DATE] through [DATE].

3.3. Site(s) of treatment: [FACILITY NAME], [ADDRESS].

3.4. Provider(s) involved: [YOU, DR. _____], and any other physicians, nurses, technicians, residents, fellows, or staff acting under your supervision or in concert with your care.

4. NATURE OF THE CLAIM

4.1. Claimant alleges that, during the course of the care described above, you departed from accepted standards of medical care in one or more of the following respects:

• ☐ Failure to timely diagnose [CONDITION];
• ☐ Failure to order, interpret, or act upon [DIAGNOSTIC TEST];
• ☐ Failure to obtain valid informed consent prior to [PROCEDURE];
• ☐ Negligent performance of [PROCEDURE];
• ☐ Failure to monitor and recognize post-procedure [COMPLICATION];
• ☐ Negligent prescription or administration of [MEDICATION];
• ☐ Failure to consult or refer to an appropriate specialist;
• ☐ [OTHER ALLEGED DEPARTURE].

4.2. Claimant further alleges that the foregoing departure(s) proximately caused the following injuries: [BRIEF DESCRIPTION OF INJURIES — e.g., permanent neurologic deficit; need for additional surgeries; loss of organ function; death].

4.3. This notice is provided to enable you to investigate the allegations, evaluate exposure, and consider whether to engage in good-faith pre-suit dialogue or alternative dispute resolution.

5. DEMAND AND RESERVATION

5.1. Claimant requests that you preserve all medical records, electronic medical record audit trails, imaging studies (including DICOM data), pathology specimens, billing records, scheduling records, credentialing files, peer-review documents (subject to applicable privileges), and any other documents or electronically stored information that may relate to Claimant's care, until further notice.

5.2. Claimant reserves all rights and remedies available under Texas and federal law and waives nothing by sending this notice. This notice is not an offer to settle, and any settlement communications must comply with Tex. R. Evid. 408.

5.3. If you have liability insurance applicable to this claim, please forward this notice immediately to your insurer and provide our office with the carrier's name, policy number, and adjuster contact information at your earliest convenience.

6. STATUTE-OF-LIMITATIONS TOLLING STATEMENT

Claimant gives this notice with the express intention to invoke the 75-day tolling provision of Tex. Civ. Prac. & Rem. Code § 74.051(c). The applicable statute of limitations under § 74.251(a) is therefore tolled for 75 days commencing on the date of the giving of this notice. This notice does not affect, and is not intended to affect, the ten-year statute of repose under § 74.251(b).

7. COUNSEL CONTACT AND SIGNATURE

If you wish to discuss this matter prior to suit, please contact the undersigned. All communications regarding the claim must be directed to counsel; please do not contact Claimant directly.

Sincerely,

[________________________________]

[ATTORNEY NAME]

State Bar No. [########]

[LAW FIRM NAME]

[STREET ADDRESS]

[CITY, TEXAS ZIP]

Telephone: [NUMBER]

Facsimile: [NUMBER]

Email: [EMAIL]

ATTORNEY FOR CLAIMANT

Enclosure: Authorization for Release of Protected Health Information (Tex. Civ. Prac. & Rem. Code § 74.052)

8. AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION (§ 74.052)

AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION

A. I, [CLAIMANT FULL LEGAL NAME] (date of birth [__/__/____], address [STREET], [CITY, TX ZIP], telephone [NUMBER], email [EMAIL]), hereby authorize the release of protected health information regarding myself as described below.

B. Health information to be released. I authorize the release of the following protected health information to the persons described in Paragraph D below:

• 1. The health information in the custody of the following physicians or health care providers who have examined, evaluated, or treated me in connection with the injuries alleged to have been negligently caused:

• 2. The health information in the custody of the following physicians or health care providers who have examined, evaluated, or treated me during a period commencing five years prior to the incident made the basis of the accompanying notice of health care claim:

C. Excluded health information. I expressly EXCLUDE the following physicians or health care providers from this authorization (if any):

I further wish to exclude from this authorization (initial all that apply):

• ☐ HIV / AIDS test results — Patient initials: [____]
• ☐ Substance use disorder treatment records protected by 42 C.F.R. Part 2 — Patient initials: [____]
• ☐ Mental health records (other than as relevant to alleged emotional injuries) — Patient initials: [____]
• ☐ Genetic testing information — Patient initials: [____]

D. Persons to whom the health information may be released. The persons or entities to whom the health information identified above may be released include:

• 1. Any and all physicians or health care providers providing care or treatment to Claimant;
• 2. Any liability insurance carrier with an interest in the claim, including its claims professionals and assigned defense counsel;
• 3. Any consulting expert(s) retained in connection with the claim;
• 4. Defense counsel for any defendant or potential defendant in the contemplated suit;
• 5. Plaintiff's counsel of record ([LAW FIRM NAME]); and
• 6. Any court of competent jurisdiction and any trier of fact in connection with the claim.

E. Purpose. The purpose of this authorization is the investigation, evaluation, defense, and prosecution of a health care liability claim relating to the injury described in the accompanying notice provided pursuant to § 74.051.

F. Expiration. This authorization shall expire upon the resolution of the claim asserted or at the conclusion of any litigation instituted in connection with the subject matter of the notice provided pursuant to § 74.051, whichever occurs sooner.

G. Revocation. I understand that, without exception, I have the right to revoke this authorization in writing. I further understand that the consequence of any such revocation is as set forth in § 74.052.

H. Notice to recipients. I understand that the signed authorization is required by § 74.051 and § 74.052 of the Texas Civil Practice & Remedies Code, and that the protected health 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.

I. Right to copy. I understand that I have the right to receive a copy of this authorization upon request.

Signature of Patient / Personal Representative: [________________________________]

Printed name: [CLAIMANT NAME]

Date: [__/__/____]

If signed by personal representative, describe the representative's authority (e.g., parent, court-appointed guardian, executor, attorney-in-fact under durable power of attorney, surviving spouse): [DESCRIPTION OF AUTHORITY]

9. CERTIFICATE OF MAILING

I, [ATTORNEY NAME], certify that on [DATE] I caused the foregoing Notice of Health Care Liability Claim, together with the Authorization for Release of Protected Health Information, to be deposited in the United States Mail, postage prepaid, certified, return receipt requested, addressed to each of the following recipients:

[________________________________]

[ATTORNEY NAME]

State Bar No. [####]

10. INTERNAL COMPLIANCE CHECKLIST

• ☐ Identified each potential physician/HCP defendant by name and current practice address;
• ☐ Identified each potential health care institution defendant and confirmed the registered agent through the Texas Secretary of State;
• ☐ Confirmed that the date of mailing leaves a buffer (at least 75 days) before the SOL deadline, factoring in the § 74.051(c) tolling;
• ☐ Confirmed that the case is within the 10-year repose under § 74.251(b);
• ☐ Confirmed compliance with HIPAA (45 C.F.R. § 164.508) and the Texas Medical Records Privacy Act (Tex. Health & Safety Code Ch. 181);
• ☐ Authorization fully executed by the patient or proper personal representative (with documented authority);
• ☐ Authorization lists, in Section B(1), each provider relevant to the alleged injuries;
• ☐ Authorization lists, in Section B(2), each provider seen in the five years before the incident (request a list from the patient and supplement as needed);
• ☐ Sensitive-category exclusions (HIV/AIDS, SUD, mental health, genetic) addressed and properly initialed if elected;
• ☐ Sent by certified mail, return receipt requested; tracking numbers logged;
• ☐ Green cards (PS Form 3811) and certified-mail receipts (PS Form 3800) retained in file;
• ☐ Calendar entry created for SOL tolling expiration (date of mailing + 75 days extension to base SOL).

11. TEXAS PRACTICE NOTES

• Effect of noncompliance — abatement. A defendant who is not properly served with the § 74.051 notice may obtain abatement (not dismissal). The abatement runs until 60 days after notice is properly served (§ 74.051(b)) for the notice itself, and until 60 days after the authorization is provided (§ 74.052(a)) for the authorization. Defective notice does not bar suit but loses the 75-day tolling.
• Tolling mechanics. Section 74.051(c) tolls "the applicable statute of limitations to and including a period of 75 days following the giving of the notice." Texas courts have held that the SOL is extended by 75 days from the original SOL date, not by adding 75 days to a midstream date. De Checa v. Diagnostic Center Hosp., Inc., 852 S.W.2d 935 (Tex. 1993); Phillips v. Sharpstown Gen. Hosp., 664 S.W.2d 162 (Tex. App. — Houston [1st Dist.] 1983, no writ).
• Multiple defendants. Each defendant must receive notice. Notice given to one defendant does not toll the SOL as to a different defendant. Phillips, supra. Send notice to every potential defendant before relying on tolling.
• Open Records and § 181. A separate Texas Medical Records Privacy Act compliance review may be required if the case involves an electronic-health-record vendor or a covered "covered entity" beyond traditional HIPAA scope. Consult Tex. Health & Safety Code § 181.001 et seq.
• Repose. The 10-year statute of repose is absolute. Methodist Healthcare Sys. of San Antonio, Ltd. v. Rankin, 307 S.W.3d 283 (Tex. 2010) (10-year repose constitutional, applies even where injury undiscovered). Discovery rule and fraudulent concealment do NOT extend repose.
• Open courts. Texas's open-courts provision (Tex. Const. art. I, § 13) may, in narrow circumstances, override the SOL where the claim is impossible to discover within the limitations period. Shah v. Moss, 67 S.W.3d 836 (Tex. 2001); Walters v. Cleveland Reg'l Med. Ctr., 307 S.W.3d 292 (Tex. 2010). Open-courts doctrine does NOT override the 10-year repose. Rankin, supra.
• Minors. Section 74.251(a)'s tolling for minors under 12 has been challenged on open-courts grounds but largely upheld; verify current case law before relying on it.
• Non-Chapter-74 claims. Some claims arising in a medical setting are not "health care liability claims" — for example, ordinary premises-liability claims by a non-patient visitor unrelated to medical care. § 74.051 notice is unnecessary for such claims, but the categorization is contested; when in doubt, send notice.
• Wrongful-death/survival. When the claim is a § 74.303 wrongful-death/survival action, send notice on behalf of the statutory beneficiaries and the decedent's estate. The personal representative or surviving spouse may sign the § 74.052 authorization; document the representative's authority.

12. SOURCES AND REFERENCES

• Tex. Civ. Prac. & Rem. Code § 74.051 (Notice) — https://statutes.capitol.texas.gov/Docs/CP/htm/CP.74.htm
• Tex. Civ. Prac. & Rem. Code § 74.052 (Authorization) — https://statutes.capitol.texas.gov/Docs/CP/htm/CP.74.htm
• Tex. Civ. Prac. & Rem. Code § 74.251 (Limitations / Repose) — https://statutes.capitol.texas.gov/Docs/CP/htm/CP.74.htm
• Tex. Civ. Prac. & Rem. Code § 74.001 (Definitions) — https://statutes.capitol.texas.gov/Docs/CP/htm/CP.74.htm
• 45 C.F.R. § 164.508 (HIPAA authorization) — https://www.ecfr.gov/current/title-45/section-164.508
• 42 C.F.R. Part 2 (Substance use disorder records) — https://www.ecfr.gov/current/title-42/chapter-I/subchapter-A/part-2
• Tex. Health & Safety Code Ch. 181 (Texas Medical Records Privacy Act)
• De Checa v. Diagnostic Center Hosp., Inc., 852 S.W.2d 935 (Tex. 1993)
• Phillips v. Sharpstown Gen. Hosp., 664 S.W.2d 162 (Tex. App. — Houston [1st Dist.] 1983, no writ)
• Methodist Healthcare Sys. of San Antonio, Ltd. v. Rankin, 307 S.W.3d 283 (Tex. 2010)
• Shah v. Moss, 67 S.W.3d 836 (Tex. 2001)
• Walters v. Cleveland Reg'l Med. Ctr., 307 S.W.3d 292 (Tex. 2010)
• Texas Secretary of State (registered agent search) — https://www.sos.state.tx.us/

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. An attorney licensed in Texas must review and customize this notice and authorization before sending. Improperly drafted, served, or untimely notice can forfeit the 75-day tolling benefit and trigger abatement. Statutes and case law change frequently; verify all authorities before use.