P. Palivela Raju, M.D. v. Dianne Jackson ( 2015 )

ACCEPTED
FILED 13-15-00171-CV
IN THE 13TH COURT OF APPEALS THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI - EDINBURG CORPUS CHRISTI, TEXAS
7/7/2015 7:02:23 PM
CECILE FOY GSANGER
7/7/15 CLERK
CECILE FOY GSANGER, CLERK No. 13-15-00171-CV
BY DTello
______________________________________________________________________________
RECEIVED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
IN THE THIRTEENTH COURT OF APPEALS
7/7/2015 7:02:23 PM
CECILE FOY GSANGER
CORPUS CHRISTI, TEXAS Clerk
__________________________________________________________________
P. PALIVELA RAJU, M.D.
Appellant
v.
DIANE JACKSON
Appellee
__________________________________________________________________
APPELLEE'S SURREPLY BRIEF FOR APPELLANT
__________________________________________________________________
On Appeal from Cause No. 14-E-0190
In the 23rd District Court of Matagorda County, Texas
__________________________________________________________________
Alexander Forrest Alan Kolodny
State Bar No. 24065241 State Bar No. 24056882
FORREST & KOLODNY, L.L.P. FORREST & KOLODNY, L.L.P.
1011 Augusta Drive, Suite 111 1011 Augusta Drive, Suite 111
Houston, Texas 77057-2035 Houston, Texas 77057-2035
(713) 532-4474 (713) 532-4474
(713) 785-0597 - Facsimile (713) 785-0597 - Facsimile
aforrest@fko-law.com akolodny@fko-law.com
IDENTITY OF PARTIES AND COUNSEL
In accordance with TEX. R. APP. P. 38.1(a), the following is a complete list
of all parties to this appeal:
Plaintiff / Appellee Counsel for Plaintiff/Appellee
Diane Jackson Mr. Alexander Forrest
Mr. Alan Kolodny
FORREST & KOLODNY, L.L.P.
1011 Augusta Drive, Suite 111
Houston, Texas 77057-2035
(713) 532-4474 / (713) 785-0597 - Fax
aforrest@fko-law.com
Defendant / Appellant Counsel for Defendant / Appellant
P. Palivela Raju, M.D. Mr. Gary Sommer
Mr. James R. Boston, Jr.
Boston & Hughes, P.C.
8584 Katy Freeway, Suite 310
Houston, TX 77024
(713) 961-1122 / (713) 965-0883 – Fax
gsommer@bostonhughes.com
OTHER PARTIES
Co-Defendant Diagnostic Health Care Services d/b/a Onsite Balance Solutions
Trial Counsel Appellate Counsel
Mr. Kevin O’Murphy Mr. David Lunningham
Law Office of Brian J. Judis Ms. Helena Venturini
9500 Arboretum Boulevard, Suite 145 Watson, Caraway, Midkipp &
Austin, Texas 78759 Lunningham, LLP
(512) 502-6431 1600 Oil & Gas Building
(866) 489-7657 – (fax) 309 W. 7th Street
Kevin.Murphy2@cna.com Fort Worth, Texas 76102
(817) 870-1717 / (817) 338-4852 - fax
dluningham@watsoncarraway.com
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL………………………………………ii
TABLE OF CONTENTS……………………………………………………….iii-iv
INDEX OF AUTHORITIES…………………………………………………….v-vi
SUMMARY OF THE SURREPLY ARGUMENT………………………...……1-2
SURREPLY ARGUMENT……………………………………………………..3-11
I. Appellee Argument that Her Claim is Not a Healthcare Liability Claim
Was Presented to the Trial Court and Was Preserved for Appellate
Review
II. Appellee’s Claims May be Healthcare Liability Claims
III. Appellee Never Asserted that Res Ipsa Loquitur Avoids the
Requirements of Chapter 74.
IV. Appellee’s Expert, Dr. Ravdel, is Qualified to Render an Opinion under
Chapter 74 of the TMLA.
CONCLUSION…………………………………………………………………...12
CETFIFICATE OF COMPLIANCE……………………………………………...13
CERTIFICATE OF SERVICE……………………………………………………13
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INDEX OF AUTHORITIES
Cases
Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873(Tex.2001)………………………………………………………………………3, 8
Good Shepherd Medical Center-Linden, Inc. v. Twilley, 422 S.W.3d 782(Tex. App. – Texarkana, Mar. 1, 2013, pet. denied)…………………………….1, 4
Ross v. St. Luke’s Episcopal Hosp., ___ S.W.3d ___, 58 Tex.Sup.Ct.J. 766, 2015
WL 2009744 (Tex. May 1, 2015)……………………………………2, 3, 4, 5, 6, 12
Statutes and Rules
Tex. Civ. Prac. & Rem Code, Chapter 74…………1,2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12
References to Clerk’s Original Record are shown as (CR ______)
References to Clerk’s Supp. Record are shown as (CR 1st Supp.____)
iv
SUMMARY OF THE SURREPLY ARGUMENT
Appellee has always recognized the possibility that Appellee’s claim is a
healthcare liability claim, which is why Appellee timely filed a chapter 74 expert
report under the Texas Medical Liability Act (TMLA). Despite Appellant’s
assertion that there is no basis for finding that Appellee’s claim is not a healthcare
liability claim, there are facts underlying Plaintiff’s case which should at least raise
the possibility, especially in an area of the law as contentious as safety claims
against healthcare providers. This is an area of the law where Texas appellate
courts have historically issued conflicting, divided opinions. The locale of the
injury, or the mere fact that the injury occurred subsequent to Appellee receiving a
cohloic stimulation is not alone sufficient to trigger a chapter 74 claim under the
TMLA. Good Shepherd Medical Center-Linden, Inc. v. Twilley, 422 S.W.3d 782,
788 (Tex. App. – Texarkana, Mar. 1, 2013, pet. denied). The facts support a
finding that the chair at issue was not a necessary part of the medical procedure
provided. It was merely incidental to the medical testing, since the equipment used
to conduct the cohloic stimulation test was separate and independent from the chair
at issue in this case. The use of the chair to support Appellee’s weight was,
therefore, incidental to Appellee’s medical testing in the same manner that a floor
is incidental to entering a doctor’s office. Just as a floor is necessary to support a
patient’s weight when performing an X-ray, so too is a chair. This rationale and
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reasoning here is similar to that applied by the Texas Supreme Court in Ross v. St.
Luke’s Episcopal Hospital, where the Court ruled that a plaintiff’s slip and fall at a
hospital while visiting a patient was not a health care liability claim under chapter
74 of the TMLA. See Ross v. St. Luke’s Episcopal Hosp., ___ S.W.3d ___, 58
Tex.Sup.Ct.J. 766, 2015 WL 2009744 (Tex. May 1, 2015). The Court held that it
was not a healthcare liability claim for the following reason:
[B]ecause the record does not demonstrate a relationship between the safety
standards she alleged the hospital breached – standards for maintaining the
floor injside the loby exit doors – and the provision of health care, other than
the location of the occurrence and the hospital’s status as a healthcare
provider.” Id., at 1.
Therefore, the issue of whether Appellee’s claims are health care liability claims is
not as transparent as simple as Appellant asserts.
If this Court finds that Appellee’s claims are health care liability claims,
Appellee has nonetheless satisfied the statutory requirements under chapter 74 of
the TMLA. While Appellee’s expert was unable to opine exactly how and why the
chair at issue failed to hold Appellee’s weight, there was no information upon
which any expert, ENT or not, could rely on in making such a determination.
Furthermore, the purpose of the expert report is not to explain exactly how the
injury occurred, but to merely (1) inform the defendant of the specific conduct
plaintiff has called into question and (2) provide a basis for the trial court to
conclude the claims have merit. Am. Transitional Care Ctrs. Of Tex., Inc. v.
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Palacios, 46 S.W.3d 873, 878 (Tex. 2001). Appellee’s medical expert report
meets the “objective good faith” standard for satisfying the statutory elements of
chapter 74 of the TMLA and accomplishing its purpose as set forth in Palacios.
Tex. Civ. Prac. & Rem. Code 74.351(l).
SURREPLY ARGUMENT
I. Appellee’s Argument that Her Claim is Not a Healthcare Liability Claim Was
Presented to the Trial Court and Was Preserved for Appellate Review
Appellant is correct, and Appellee, does not deny, that Appellee’ filed its
petition as a healthcare liability claim. Nonetheless, Appellee believes under the
de novo standard or review there is an issue of law favoring a finding that
Appellee’s case is not a healthcare liability case, with particular emphasis on the
fact that no medical doctor was present in Appellee’s physician room at the time of
her injury, a time when her medical testing had ceased. As a result, the failure on
the part of Appellant is not so much grounded in the practice of medicine as the
failure to provide a safe premises and supervision for a non-physician third party
contractor to administer a health care related test. As Appellant is well aware, the
location of the occurrence and the physician’s status as a healthcare provider alone
is insufficient as a means of applying the Texas Medical Liability Act to an injury
which happens to occur on the premises of a healthcare provider. See Ross v. St.
Luke’s Episcopal Hosp., ___ S.W.3d ___, 58 Tex.Sup.Ct.J. 766, 2015 WL
32009744 (Tex. May 1, 2015). Furthermore, “[I]f every safety claim against a
health care provider were considered a health care liability claim, there would be
no need to analyse the nature of the acts or omissions which caused the alleged
injuries.” Twilley, 422 S.W.3d at 788. Therefore, the question of whether
Appellee’s claim is a Healthcare Liability Claim is a legitimate issue to bring
before this court. This issue was preserved in Appellee’s Response to Appellant’s
objections to Appellee’s expert report (CR Supp. 18). In fact, at the hearing on
Appellant’s objections to Appellee’s chapter 74 expert report, Appellee states that
this case is not a healthcare liability claim as follows:
Your Honor, this is a case about a Plaintiff, Ms. Jackson, going to her doctor
for head and neck problems and leaving the premises with a knee injury and
shoulder injury. It is atypical of medical malpractice claims in the sense that
the injuries with which she left the office were not related to the treatment
for which she entered the office. (CR Supp. 34).
Furthermore, the Judge’s order denying Appellant’s objections to Appellee’s
expert report does not explicitly deny the objections under chapter 74 of the HCLA
(CR Supp. 21).
In Ross v. St. Luke’s Episcopal Hospital, the Texas Supreme Court recently
provided a seven part analysis for determining whether a claimant’s injuries at a
hospital or the office of a healthcare provider necessarily implicates the TMLA.
The factors are as follows:
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(1) Did the alleged negligence of the defendant occur in the course of the
defendant’s performing tasks with the purpose of protecting patients from
harm;
(2) Did the injuries occur in a place where patients might be during the time they
were receiving care, so that the obligation of the provider to protect persons
who require special, medical care was implicated;
(3) At the time of the injury was the claimant in the process of seeking or receiving
health care;
(4) At the time of the injury was the claimant providing or assisting in providing
healthcare;
(5) Is the alleged negligence based on safety standards arising from professional
duties owed by the health care provider;
(6) Is an instrumentality was involved in the defendant’s alleged negligence, was it
a type used in providing health care; or
(7) Did the alleged negligence occur in the course of the defendant’s taking action
or failing to take action necessary to comply with the safety-related
requirements set for health care providers by governmental or accrediting
agencies? Ross, ___ S.W.3d ___, 58 Tex.Sup.Ct.J. 766, 2015 WL 2009744(Tex. May 1, 2015).
The record does not clearly show that the chair at issue in this case was for use by
patients, or for use in medical testing. Appellee has not had an opportunity to
inspect the chair, nor has Appellant provided any basis for Appellee to conclude
that the chair is necessarily implicated in vertigo testing. For example, what
exactly about the chair makes it a necessary and appurtenant part of vertigo
testing? A chair does not merely become a vertigo chair because someone chooses
to give it that name. For all Appellee knows, the chair may be no different that the
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chairs patients sit in when waiting in the lobby for their appointment. The chair
may not have even been proper for the testing for which it was used on the date
when Appellee was injured by it. With Appellant not in the room at the time the
medical procedure was being performed, Appellee has no way of knowing whether
Appellant had any authority in determining whether this particular chair would
even be used to perform medical testing on Appellee. Appellee doesn’t know
whether the chair at issue in this case was the type routinely used to treat patients
for vertigo, or whether Appellant used the chair for that purpose. Furthermore,
without the right to conduct discovery and inspect the chair, Appellee has no
evidence upon which to determine whether the chair was particularly suited to
providing for the safety of patients beyond that of any other chair used to support
the weight of patients, whether on the premises for medical treatment or not. Also,
the record does not demonstrate that the use of this chair was to comply with a
safety-related requirement set forth by a governmental or accrediting authority.
Simply put, for all Appellee knows, this chair is not the type of chair used in
providing healthcare, and without Appellant directing her to sit in the chair, or
present to perform the test, there is no reason to believe the chair was a necessary
component of the medical testing. In the same way as the slippery floor at St.
Luke’s Episcopal Hospital in Ross was merely incidental to a patient walking into
and out of a hospital for treatment, so too is a chair in a doctor’s office. Id.
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Without a chair to hold a patient’s weight, medical testing cannot be performed in
the same manner that a patient cannot be treated unless it has a floor on which to
enter the medical premises. The fact that a chair, like a floor, is incidental to the
later performance of more specialized procedures, like a “cohloic stimulation” test,
does not make it an integral element of treatment such that it becomes “equipment
or materials…particularly suited to providing for the safety of patients.” Id.
II. Appellee’s Claims May be Healthcare Liability Claims
For the reasons provided in Appellee’s Second Amended brief, Appellee’s
claim may be healthcare liability claims, which is why Appellee timely filed a
chapter 74 expert report. However, for the reasons cited above, Appellee believes
that her claims are not healthcare liability claims.
III. Appellee Never Asserted that Res Ipsa Loquitur Avoids the Requirements of
Chapter 74
Appellee never asserted that pleading res ipsa loquitur is a way to eliminate
the procedural requirement for a sufficient expert report. For the reasons cited in
Appellee’s brief, Appellant’s Expert Report satisfies the statutory requirements of
chapter 74. Dr. Ravdel’s expert report provides that Appellant’s standard of care
under the facts of this case are two-fold: (1) to ensure that the medical office
equipment is properly maintained and in working order, and (2) to ensure that
balance testing is supervised by Appellant or some other qualified medical or
7
nursing staff. Appellee’s argument is precisely that the facts of this case are so
simple and plain that any layman can look at the facts of this case and conclude, as
does Dr. Ravdel, that a chair should not collapse merely because a person is seated
in it. The fact that Appellant is asking this court to require an expert to explain the
exact procedures required to ensure that a basic chair does not collapse without any
right to discovery or right to inspect the medical chair, amounts to holding
Appellee to the standard of proof only imposed on Plaintiffs at summary judgment
proceedings, a standard that has been deemed improper by the Texas Supreme
Court as a test for determining the sufficiency of a chapter 74 expert report under
the TMLA. In Am. Transitional Care Ctrs. Of Tex., Inc. v. Palacios, the court
stated as follows:
To avoid dismissal, a plaintiff need not present evidence in the report as if it
were actually litigating the merits. The report can be informal in that the
information in the report does not have to meet the same requirements as the
evidence offered in a summary judgment proceeding or at trial.” 46 S.W.3d
873, 875. (CR Supp. 17).
Appellant’s entire brief and response to Appellee’s brief amounts to improperly
asking this Court to require that Appellee litigate the merits of its case at the
earliest stage of the litigation, before Appellee has had a chance to engage in
discovery and inspect a chair which injured Appellee. The questions that
Appellant looks to our expert to answer cannot be answered by any expert without
litigating the merits of the case.
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IV. Appellee’s Expert, Dr. Ravdel, is Qualified to Render an Opinion under
Chapter 74 of the TMLA.
A brief analysis of the facts of the lower court quickly reveals that the
relevant subject area for any expert attempting to qualify under chapter 74 of the
Texas Medical Liability Act (TMLA) is not any specific area of medical practice,
but the general standard of care any medical physician owes his patients as a
premises owner. As the owner of a medical practice, a physician owner must
ensure that his medical premises are sufficiently maintained and in working order
such that a chair does not collapse when a patient is merely seated in it. Given the
limited discovery rights of Appellee prior to Judge Hardin’s ruling on Appellant’s
Motion to Dismiss Pursuant to the TMLA, coupled with a factual backdrop where
Appellee was injured after merely being seated in a chair that could not hold her
weight, the “objective good faith effort” standard for determining whether an
expert report is statutorily compliant has clearly been met. Tex. Civ. Prac. & Rem.
Code 74.351(l). Appellant conveniently neglects to explain or even address how
an “objective good faith effort” has not been met by Appellant, choosing to lace his
arguments with grand conclusions without first assessing the threshold question of
whether Appellee has made an “objective good faith effort.” Id. Simply put,
without a right to inspect the medical chair at issue in this case, and relying on the
medical records alone, there is absolutely nothing any expert, orthopedic or not,
could use to form an opinion that effectively states exactly what about the chair at
9
issue in this case is defective. The Court should, therefore, find that Appellee
submitted a medical expert report in compliance with Tex. Civ. Prac. & Rem. Code
74.351(b).
V. Appellee’s Expert Report Satisfies the Chapter 74 Standard of Care
Requirement
Dr. Ravdel’s expert report provides that Appellant’s standard of care under
the facts of this case are two-fold: (1) to ensure that the medical office equipment
is properly maintained and in working order, and (2) to ensure that balance testing
is supervised by Appellant or some other qualified medical or nursing staff. (CR
33)
Appellee’s expert report provided by Dr. Ravdel meets the “objective good
faith effort” test for satisfying the Section 74.351(b) statutory requirement for
sufficiency of an expert report based on the limited discovery rights available to
Appellee and given the factual backdrop where Appellee was injured by a medical
chair that did not hold her weight.
Appellant’s response to Appellee’s brief completely ignores the “objective
good faith effort” test provided by the TMLA on whether an expert report
sufficiently satisfies the statutory requirements. Section 74.351(l) of the Tex. Civ.
Prac. & Rem. Code provides:
A court shall grant a motion challenging the adequacy of an expert report
only if it appears to the court, after hearing, that the report does not represent
10
an objective good faith effort to comply with the definition of an expert
report in Subsection (r)(6).
Whether an “objective good faith effort” has been made by Appellee depends on
what information Appellee’s medical expert relied on in reaching an opinion.
Plaintiff's expert gives a fair summary of the standard of care given what is known
about Plaintiff's injury and the simplistic facts and circumstances leading to
Plaintiff's injury. The facts of each individual case control the detail required in
the expert report, as the standard is whether the plaintiff has made an "objective
good faith effort" to meet the statutory requirement. See Tex. Civ. Prac. & Rem.
Code §74.351(l). This analysis necessarily varies depending on the facts of each
particular case. The qualifications of the medical staff supervising Plaintiff and the
maintenance history of the chair are not known at this time. Nothing is known
about the design or condition of the chair except for facts and inferences drawn
from medical records. Given Appellee’s limited discovery rights at this early stage
in the litigation, Appellee has limited tools available to acquire greater information.
Therefore, Appellee has used its best efforts and acted in good faith under these
facts to comply with the statutory requirements of the Texas Medical Liability Act.
CONCLUSION
The Texas Supreme Court requires an analysis into the gravamen of the
claim in order to determine if the claim is a health care liability claim subject to the
11
Texas Medical Liability Act, Chapter 74 of the Texas Civil Practice and Remedies
Code. In this case, the gravamen of the claim is the proper maintenance and repair
of a chair. The simple fact that an injury occurred on a health care providers
premises is not enough to make it subject to the Texas Medical Liability Act.
Appellee maintains that her claim is not a health care liability claim and therefore
not subject to the chapter 74 expert report requirement. However, Appellee also
acknowledges the fact that under the new Texas Supreme Court’s seven factor test
in Ross, the possibility remains that Appellee’s case may be a healthcare liability
claim under chapter 74. For that reason, Appellee timely filed a proper expert
report that meets the statutory requirements set forth by chapter 74 of the TMLA
for the reasons provided herein.
Respectfully Submitted,
/s/ Alexander Forrest
_______________________
Alexander Forrest
SBOT: 24065241
Forrest & Kolodny, LLP
1011 Augusta Dr., Ste. 111
Houston, TX 77057
Tel: (713) 598-0339
Fax: (713) 785-0597
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CERTIFICATE OF COMPLIANCE
I certify that this Appellee’s Surreply Brief was prepared with Microsoft
Word 2010, and that, according to that program’s word-count function, the
sections covered by Texas Rule of Appellate Procedure 9.4(i)(1) contain 3,527
words.
/s/ Alexander Forrest
_________________________
ALEXANDER FORREST
CERTIFICATE OF SERVICE
In accordance with Rule 9.5(e) of the Texas Rules of Appellate Procedure, I
certify that a copy of Appellant’s 2nd Amended Brief was served on Plaintiff’s
counsel by electronic service through e-filing on this July 7, 2015.
Garry Sommer
James R. Boston, Jr.
Boston & Hughes, P.C.
8584 Katy Freeway, Suite 310
Houston, Texas 77057
Telephone: (713) 961-1122
gsommer@bostonhughes.com
jboston@bostonhughes.com
/s/ Alexander Forrest
_________________________
ALEXANDER FORREST
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