Shan Kovaly v. Tulsidas Kurvanka, M.D. and Ikedinobi U. Eni, M.D. ( 2015 )

ACCEPTED
01-15-00350-cv
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/3/2015 2:27:01 PM
CHRISTOPHER PRINE
CLERK
ORAL ARGUMENT REQUESTED
NO. 01-15-00350-CV
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
IN THE COURT OF APPEALS 12/3/2015 2:27:01 PM
FOR THE FIRST DISTRICT OF TEXASCHRISTOPHER A. PRINE
Clerk
AT HOUSTON, TEXAS
SHAN KOVALY,
Appellant,
v.
TULSIDAS KURUVANKA, M.D., ET AL. AND
IKEDINOBI U. ENI, M.D., ET AL.,
Appellees.
On Appeal from the 113th District Court
Harris, County, Texas, Cause No. 2014-66001
(Hon. Michael Landrum)
BRIEF OF APPELLEES IKEDINOBI U. ENI, M.D., IKEDINOBI U. ENI,
M.D., P.A., AND ENI HEALTH CARE
Respectfully submitted,
COOPER & SCULLY, P.C. SPROTT NEWSOM
QUATTLEBAUM, MESSENGER
DIANA L. FAUST JOEL RANDAL SPROTT
diana.faust@cooperscully.com sprott@sprottnewsom.com
Texas Bar No. 00793717 Texas Bar No. 18971580
KYLE M. BURKE
kyle.burke@cooperscully.com
Texas Bar No. 24073089
900 Jackson, Suite 100 221 Norfolk, Suite 1150
Dallas, Texas 75202 Houston, Texas 77098
Telephone: (214) 712-9500 Telephone: (713) 523-8338
Facsimile: (214) 712-9540 Facsimile: (713) 523-9422
ATTORNEYS FOR APPELLEES
NO. 01-15-00350-CV
IN THE COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS
AT HOUSTON, TEXAS
SHAN KOVALY,
Appellant,
v.
TULSIDAS KURUVANKA, M.D., ET AL. AND
IKEDINOBI U. ENI, M.D., ET AL.,
Appellees.
On Appeal from the 113th District Court
Harris, County, Texas, Cause No. 2014-66001
(Hon. Michael Landrum)
IDENTITY OF PARTIES AND COUNSEL
In accordance with rule 38.1(a) of the Texas Rules of Appellate Procedure,
the following is a list of names and addresses of the parties to the trial court’s
judgment and their counsel:
Appellant: Shan Kovaly
Trial Counsel
For Appellant: Steven R. Davis
Davis & Davis
440 Louisiana, Suite 1850
Houston, Texas 77002
i
Appellate Counsel
for Appellant: Ian Simpson
Simpson, P.C.
1333 Heights Boulevard
Houston, Texas 77008
Steven R. Davis
Davis & Davis
440 Louisiana, Suite 1850
Houston, Texas 77002
Appellees: Ikedinobi U. Eni, M.D., Ikedinobi U.
Eni, M.D., P.A., and Eni Health Care
Trial Counsel
for Appellees: Joel Randal Sprott
Erin E. Lunceford
Sprott Newsom Quattlebaum
Messenger
2211 Norfolk, Suite 1150
Houston, Texas 77098
Appellate Counsel
for Appellees: Diana L. Faust
Kyle M. Burke
Cooper & Scully, P.C.
900 Jackson Street, Suite 100
Dallas, Texas 75202
Joel Randal Sprott
Sprott Newsom Quattlebaum
Messenger
2211 Norfolk, Suite 1150
Houston, Texas 77098
Appellees: Tulsidas S. Kuruvanka, M.D., and
Northwest Houston Cardiology, P.A.
ii
Trial and Appellate
Counsel for Appellees: James B. Edwards
Stacy T. Garcia
Edwards & Associates
12603 Southwest Freeway, Suite 200
Stafford, Texas 77477
iii
NO. 01-15-00350-CV
IN THE COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS
AT HOUSTON, TEXAS
SHAN KOVALY,
Appellant,
v.
TULSIDAS KURUVANKA, M.D., ET AL. AND
IKEDINOBI U. ENI, M.D., ET AL.,
Appellees.
On Appeal from the 113th District Court
Harris, County, Texas, Cause No. 2014-66001
(Hon. Michael Landrum)
STATEMENT REGARDING ORAL ARGUMENT
Appellees Ikedinobi U. Eni, M.D., Ikedinobi U. Eni, M.D., P.A., and Eni
Health Care respectfully request oral argument in this case and believe it will help
the Court in evaluating the case and resolving the appeal. TEX. R. APP. P. 39.1,
39.7.
iv
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL .......................................................... i
STATEMENT REGARDING ORAL ARGUMENT ............................................ iv
TABLE OF CONTENTS........................................................................................v
TABLE OF AUTHORITIES ............................................................................... vii
RESPONSIVE ISSUES PRESENTED ............................................................... xiii
STATEMENT OF FACTS .....................................................................................1
A. Appellant’s Allegations ......................................................................1
B. Theories of Liability ...........................................................................3
C. Appellees File Motions for Summary Judgment .................................4
D. Proceedings After Trial Court Granted Appellees’ Motions for
Summary Judgment ............................................................................5
SUMMARY OF THE ARGUMENT ......................................................................6
ARGUMENT AND AUTHORITIES .....................................................................8
I. Trial Court Correctly Granted Appellees’ Motion for Summary
Judgment Because the Statute of Limitations Bars Appellant’s Claims.........8
A. Standard of Review.............................................................................8
B. Appellant’s Claims Are Barred by the Statute of Limitations in
Section 74.251(a)................................................................................9
C. Appellant Not Entitled To Toll Limitations in Absence of
Proper Pre-suit Notice with Medical Authorization...........................11
1. Medical Authorization Must Accompany Pre-suit Notice
To Trigger Tolling Period .......................................................11
v
2. Appellant’s Case Law Does Not Provide Support...................17
D. Appellant’s Procedural Tactics Undermine Legislative Intent...........23
CONCLUSION AND PRAYER...........................................................................28
CERTIFICATE OF COMPLIANCE ....................................................................31
CERTIFICATE OF SERVICE..............................................................................32
APPENDIX TO BRIEF OF APPELLEES IKEDINOBI U. ENI, M.D.,
IKEDINOBI U. ENI, M.D., P.A., AND ENI HEALTH CARE.............................33
vi
TABLE OF AUTHORITIES
Case Page(s)
Brannan v. Toland,
No. 01–13–00051–CV, 2013 WL 4004472
(Tex. App.—Houston [1st Dist.] Aug. 6, 2013, pet. denied) (mem.op.) ......12, 20
City of San Antonio v. Hernandez,
53 S.W.3d 404 (Tex. App.—San Antonio 2001, pet. denied).........................8, 9
College Station Medical Center v. Kilaspa,
No. 10-14-00374-CV, 2015 WL 4504361
(Tex. App.—Waco Jul. 23, 2015, pet. filed)................................................26, 27
De Checa v. Diagnostic Center Hosp., Inc.,
967 F.2d 126 (5th Cir. 1992)............................................................................ 18
De Checa v. Diagnostic Center Hosp., Inc.,
852 S.W.2d 935 (Tex. 1993) .................................................................17, 20, 21
EXLP Leasing, LLC v. Galveston Cent. Appraisal Dist.,
No. 14-14-00268-CV, 2015 WL 5025534
(Tex. App.—Houston [14th Dist.] Aug. 25, 2015, pet. filed) ........................... 21
Helena Chem. Co. v. Wilkins,
47 S.W.3d 486 (Tex. 2001).........................................................................12, 15
In re Collins,
286 S.W.3d 911 (Tex. 2009) ............................................................................ 23
Jose Carreras, M.D., P.A. v. Marroquin,
339 S.W.3d 68 (Tex. 2011)............................................ 12-17, 19, 20, 22, 23, 25
Kimbrell v. Molinet,
288 S.W.3d 464 (Tex. App.—San Antonio 2008), aff'd,
356 S.W.3d 407 (Tex. 2011) ............................................................................ 10
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844 (Tex. 2009) .............................................................................. 8
vii
Mitchell v. Methodist Hosp.,
376 S.W.3d 833 (Tex. App.—Houston [1st Dist.] 2012, pet. denied)....13, 20, 26
Nolan v. Hughes,
349 S.W.3d 209 (Tex. App.—Dallas 2011, no pet.) ........................................... 9
Parrish v. Brooks,
856 S.W.2d 522 (Tex. App.—Texarkana 1993, no writ) .................................. 21
Rabatin v. Vazquez,
281 S.W.3d 563 (Tex. App.—El Paso 2008, no pet.) ....................................... 22
Safeco Lloyds Ins. Co. v. Allstate Ins. Co.,
308 S.W.3d 49 (Tex. App.—San Antonio 2009, no pet.) ................................... 8
Sewell v. Adams,
854 S.W.2d 257 (Tex. App.—Houston [14th Dist.] 1993, no writ) .................. 22
Shah v. Moss,
67 S.W.3d 836 (Tex. 2001)...........................................................................8, 10
Tex. Dept. of Transp. v. City of Sunset Valley,
146 S.W.3d 637 (Tex. 2004) ............................................................................ 21
Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex.,
253 S.W.3d 184 (Tex. 2007) .............................................................................. 8
Thompson v. Community Health Inv.,
923 S.W.2d 569 (Tex. 1996) ............................................................................ 21
Zweig v. S. Texas Cardiothoracic & Vascular Surgical Associates, PLLC,
373 S.W.3d 605 (Tex. App.—San Antonio 2012, no pet.) ............................... 10
Statutes Page(s)
TEX. CIV. PRAC. & REM. CODE § 74.051(a) ...............................................11, 16, 19
TEX. CIV. PRAC. & REM. CODE § 74.051(c) .......................................................... 13
TEX. CIV. PRAC. & REM. CODE § 74.052 .............................................................. 23
TEX. CIV. PRAC. & REM. CODE § 74.052(a) .....................................................12, 25
viii
TEX. CIV. PRAC. & REM. CODE § 74.052(c) .....................................................12, 13
TEX. CIV. PRAC. & REM. CODE § 74.251(a) ....................................... 8, 9, 10, 17, 24
TEX. GOV'T CODE § 311.016(3)............................................................................ 15
Rules Page(s)
TEX. R. APP. P. 39.1 .............................................................................................. iv
TEX. R. APP. P. 39.7 .............................................................................................. iv
Other Authorities Page(s)
Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09,
2003 Tex. Gen. Laws 847 ...........................................................................16, 19
Medical Liability and Insurance Improvement Act, 65th Leg., R. S., ch. 817,
§ 4.01, 1977 Tex. Gen. Laws 2039..............................................................16, 19
ix
NO. 01-15-00350-CV
IN THE COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS
AT HOUSTON, TEXAS
SHAN KOVALY,
Appellant,
v.
TULSIDAS KURUVANKA, M.D., ET AL. AND
IKEDINOBI U. ENI, M.D., ET AL.,
Appellees.
On Appeal from the 113th District Court
Harris, County, Texas, Cause No. 2014-66001
(Hon. Michael Landrum)
BRIEF OF APPELLEES IKEDINOBI U. ENI, M.D., IKEDINOBI U. ENI,
M.D., P.A., AND ENI HEALTH CARE
TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:
Appellees Ikedinobi U. Eni, M.D. (“Dr. Eni”), Ikedinobi U. Eni, M.D., P.A.
(the “P.A.”), and Eni Health Care (“EHC”) (collectively “Appellees”) submit this
Brief of Appellees, in accordance with rules 9.4 and 38 of the Texas Rules of
Appellate Procedure and all local rules of this Court. For the reasons set forth
below, Appellees urge this Court to affirm the trial court’s March 20, 2015 Final
Summary Judgment, awarding summary judgment in favor of Appellees and
against Appellant, and dismissing Appellant’s causes of action.
x
STATEMENT OF THE CASE
On November 11, 2014, Shan Kovaly (“Mr. Kovaly” or “Appellant”) filed
this health care liability claim against Appellees and Defendants Tulsidas S.
Kuruvanka, M.D. (“Dr. Kuruvanka”), and Northwest Houston Cardiology, P.A.
(“Northwest”), alleging that Appellees were negligent in their care and treatment
of Appellant on or about August 28, 2012 through September 4, 2012. (CR 5-6).1
Appellant asserted negligence and gross negligence claims against Appellees. (CR
6-7).
On February 20, 2015, Appellees filed their Traditional Motion for
Summary Judgment (CR 21-34), followed by Dr. Kuruvanka and Northwest on
February 25, 2015 (CR 35-58), on the grounds that Appellant’s claims are barred
by the statute of limitations. (CR 22-23). Appellant filed a response to the
motions (CR 68-94), Appellees filed their reply to Appellant’s response to their
motion on March 17, 2015 (CR 95), and following a hearing on the motions, the
district court signed a Final Summary Judgment in favor of Appellees, dismissing
Appellant’s causes of action on March 20, 2015. (CR 103). On March 25, 2015,
Appellant filed his Motion for New Trial, in which he argued that the Appellees
failed to carry their summary judgment burden and the trial court’s order was
erroneous due to controlling Texas Supreme Court precedent. (CR 104-05).
1
Appellees will refer to the Clerk’s Record as (CR [page #]), and the Appendix as (Apx.
[Tab #]).
xi
Appellant appealed the trial court’s Final Summary Judgment on April 13, 2015.
(CR 108-109).
xii
RESPONSIVE ISSUES PRESENTED
1. The trial court correctly granted Appellees’ motion for summary
judgment based on the statute of limitations for health care liability
claims. This issue necessarily includes the following sub-issues:
a. Health care liability claims are governed by the two-year statute
of limitations period in section 74.251(a) of the Texas Civil
Practice and Remedies Code. Appellant’s claims are barred by
the statute of limitations where it is undisputed that the
treatment at issue occurred from August 28, 2012 to September
4, 2012 but Appellant did not file suit until November 11, 2014;
b. A health care liability claimant who fails to provide proper pre-
suit notice of a claim, accompanied by the statutorily-mandated
authorization for release of protected health information, is not
entitled to the seventy-five day tolling period for limitations as
provided in section 74.051 of the Texas Civil Practice and
Remedies Code. Appellant failed to provide Appellees (or any
of the other defendants in this suit) with proper pre-suit notice
accompanied by the authorization for release of protected health
information. Therefore Appellant did not toll limitations,
rendering his suit untimely.
xiii
STATEMENT OF FACTS
A. Appellant’s Allegations
Appellant alleges that, on or about August 28, 2012, he presented to Houston
Northwest Medical Center with complaints of chest pain. (CR 5). Based on his
presentation, abnormal cardiac biomarker values and lack of ST elevations on his
ECG, it was felt that he was having an NSTEMI2 and he was taken to the cardiac
catheterization lab. (Id.). Coronary angiography revealed stenosis of the proximal
left anterior descending coronary artery (LAD). (Id.). Appellant then underwent
angioplasty and stenting of the LAD with two stents by Dr. Kuruvanka. (Id.).
There were no complications reported with the procedure. (Id.). Following the
cardiac catheterization, Appellant had a transthoracic echocardiogram (TTE)
performed on the afternoon of August 28, 2012, which demonstrated normal left
ventricular function. (Id.). Appellant was discharged from Houston Northwest
Medical Center by Dr. Eni on August 30, 2012 with prescriptions for Lopressor 25
mg twice a day, Pravachol 20 mg at bedtime, aspirin 325 mg daily, Plavix 75 mg
daily and Lisinopril 10 mg twice a day. (Id.). Appellant alleged that neither the
prescribing physician, Dr. Kuruvanka, nor the discharging physician, Dr. Eni,
reviewed the prescription to ensure the quantity of pills to dispense was included in
the prescription before releasing Appellant. (Id.).
2
NSTEMI presumably stands for a Non-ST-elevation myocardial infarction, i.e., a type of
heart attack.
BRIEF OF APPELLEES PAGE 1
The next morning, Appellant went to a Houston Wal-Mart to fill the
prescription. (CR 5). The pharmacist and pharmacy manager at the Wal-Mart
Pharmacy refused to fill the prescriptions because of the lack of quantity noted on
the prescriptions. (Id.). Both Appellant and the pharmacy personnel tried to reach
Dr. Eni and Dr. Kuruvanka over a period of the next four days, during which time,
Appellant was without his medications which were medically necessary to keep his
newly placed stent from clotting. (Id.).
On September 4, 2012, Appellant was readmitted to Houston Northwest
Medical Center with chest pain and ECG changes consistent with an anterior wall
STEMI. (CR 6). The medical records indicate that Appellant had not been taking
aspirin or Plavix. (Id.). By his report, he was not able to fill the prescriptions
because the number of pills to be dispensed was not included in the prescriptions.
(Id.). Appellant was taken emergently to the cardiac catheterization laboratory
where he was found to have in-stent thrombosis (clotting) of his stents. (Id.). The
clot was removed by thrombectomy and the LAD underwent repeat angioplasty.
(Id.). Blood work during this hospitalization revealed that the peak value for the
cardiac biomarker, troponin, was >80, which is above the limit of detection of the
assay. (Id.). Appellant was discharged from this admission on September 10,
2012. (Id.).
BRIEF OF APPELLEES PAGE 2
On September 19, 2012, Appellant was admitted to Lyndon B. Johnson
Hospital with new neurologic symptoms and shortness of breath. (CR 6). A CT
scan of the head revealed the presence of an acute/subacute stroke in the right
posterior cerebral artery distribution. (Id.). A review of a TTE reported in a
consultation note on September 21, 2012 indicated that there was thrombus present
in the apex of the heart. (Id.). It was the opinion of the neurology service that the
stroke came from a cardio-embolic source. (Id.).
B. Theories of Liability
On November 11, 2014, Appellant filed his original petition asserting health
care liability claims against the Appellees and others. (CR 3-4).3 Appellant
alleged Dr. Eni and Dr. Kuruvanka breached the applicable standards of care
required for the treatment of Appellant, by failing to write a valid prescription from
the medically necessary drugs, by failing to recognize the purpose and significance
of those medications for cardiac care and that a pharmacist would not fill an
invalid prescription, failing to recognize the significance and potential harm to a
patient who fails to receive medications from an invalid prescription, by failing to
contact the pharmacy or Appellant to correct the invalid prescriptions, and by
3
Appellees object to Appellant’s statement that “On November 11, 2014—273 days after
leaving Dr. Eni’s and Dr. Kuruvanka’s care—Kovaly filed the instant suit.” (Br. at 3). This
statement is misleading and not supported by the record. The treatment at issue here occurred on
or about August 30, 2012 to September 4, 2012. (CR 5-6, 24). Appellant did not file suit against
Appellees until November 11, 2014—at least 798 days (2 years and 68 days) after the
treatment at issue. (CR 3).
BRIEF OF APPELLEES PAGE 3
failing to make sure the prescriptions written and given to a cardiac patient are
valid and can be filled by a pharmacy. (CR 7). Appellant alleged such breaches
were a proximate cause of Appellant’s injuries, and that such conduct by Appellees
was also gross negligence, that Appellees acted willfully and maliciously against
Appellant, and that, as such, Appellant is entitled to punitive or exemplary
damages. (Id.).
C. Appellees File Motions for Summary Judgment
On February 20, 2015, Appellees filed their Traditional Motion for
Summary Judgment (CR 21-34), followed by Dr. Kuruvanka and Northwest (CR
35-59), on the grounds that Appellant’s claims are barred by the statute of
limitations within section 74.251(a) of the Texas Civil Practice and Remedies
Code and because Appellant did not provide the proper notice and authorization
required by the statute, the statute of limitations was not tolled. (CR 22-27).
Appellees asserted that Appellant was required to file his suit on or before
September 4, 2014, but that Appellant filed his Original Petition on November 11,
2014, well past the two-year limitations period, thus, the applicable statute of
limitations in this case barred Appellant’s suit. (Id.).
On March 12, 2015, Appellant responded to Appellees’ motions for
summary judgment, asserting that pre-suit notice and authorization sent on July 23,
2013 to Wal-Mart Stores Texas, LLC in a prior suit was effective to toll the
limitations period for seventy-five days as to Wal-Mart and all other potential
BRIEF OF APPELLEES PAGE 4
parties, including Appellees. (CR 68-80). Appellant thus claimed that after
tolling, the limitations period ended November 13, 2014, making his November 11,
2013 suit timely. (CR 77-78).
Appellees replied on March 17, 2015, generally arguing that Appellant never
provided a notice or a medical authorization to Appellees in the present case and
instead, relied on the notice and authorization provided to Wal-Mart in the Wal-
Mart federal case, which authorization did not provide the Appellees in this case
with authority to obtain protected health information pursuant to section
74.052(c)(A) of the Texas Civil Practice and Remedies Code. (CR 96). As such,
the authorization did not comply with the statutory requirements and, accordingly,
Appellant’s “notice” did not serve to toll the limitations period as to Appellees in
the present case. (Id.).
On March 20, 2015, following a hearing on Appellees’ motions for summary
judgment, the trial court entered a Final Summary Judgment, granting Appellees’
and Dr. Kuruvanka’s and Northwest’s motions for summary judgment. (CR 103;
Apx. Tab A).
D. Proceedings After Trial Court Granted Appellees’ Motions for
Summary Judgment
On March 25, 2015, Appellant filed his Motion for New Trial, stating that
the court’s summary judgment orders were erroneous as a matter of law in that the
Appellees failed to carry their summary judgment burden, and the trial court’s
BRIEF OF APPELLEES PAGE 5
order is erroneous due to controlling Texas Supreme Court precedent. (CR 105).
On April 13, 2015, Appellant filed his Notice of Appeal (CR 108-09), and this
appeal ensued.
SUMMARY OF THE ARGUMENT
Appellant’s suit is barred by the statute of limitations. Thus, the trial court
did not err when it granted Appellees’ motion for summary judgment based on
limitations, and this Court should affirm the trial court’s judgment.
Appellant’s suit involves a health care liability claim governed by the two-
year statute of limitations in Chapter 74. The undisputed summary judgment
evidence submitted by Appellees proved that Appellant filed suit more than two
years after the dates treatment occurred and his cause of action accrued. Thus,
Appellant’s suit is barred by the statute of limitations, and the trial court correctly
granted summary judgment in favor of Appellees.
Despite Appellant’s contentions to the contrary, he is not entitled to toll the
limitations period. While Chapter 74 provides that a claimant may toll the
limitations period for seventy-five days, this provision may only be invoked when
the claimant provides the statutorily-required sixty-day pre-suit notice,
accompanied by the authorization for release of medical records described in the
statute. The Texas Supreme Court has made it clear that pre-suit notice is
ineffective to toll limitations when the claimant fails to contemporaneously provide
BRIEF OF APPELLEES PAGE 6
the defendant with the medical authorization necessary to procure medical records,
investigate the claim, and engage in pre-suit negotiations.
Here, Appellant failed to provide Appellees with pre-suit notice and medical
authorizations in this suit. Thus, Appellant is not entitled to toll the limitations
period. Appellant claims that the notice and authorization he provided to another
defendant in a prior suit are good to toll limitations as to Appellees. But Appellees
and the other defendants here were not parties to that prior, separate suit, a suit that
was resolved by summary judgment prior to Appellant’s filing of this suit. The
law is not that any notice or authorization in that prior suit is effective to toll
limitations in the current suit against Appellees, who were deprived of pre-suit
notice, the authorizations necessary to procure medical records, and the ability to
investigate Appellant’s claims and engage in pre-suit negotiations. Appellant’s
position wholly undermines the Legislature’s intent in creating the pre-suit notice
and medical authorization requirements. Further, an abatement remedy is not
available where Appellant missed the deadline for filing suit without providing the
proper pre-suit notice and medical authorization.
Appellant filed suit more than two years after his cause of action accrued
and Appellant is not entitled to toll limitations. Therefore, the trial court correctly
granted Appellees’ motion for summary judgment. This Court should affirm the
trial court’s judgment.
BRIEF OF APPELLEES PAGE 7
ARGUMENT AND AUTHORITIES
I. Trial Court Correctly Granted Appellees’ Motion for Summary
Judgment Because the Statute of Limitations Bars Appellant’s Claims
Appellant’s suit is barred by the two-year statute of limitations governing
health care liability claims. See TEX. CIV. PRAC. & REM. CODE § 74.251(a).
Appellant’s cause of action accrued no later than September 4, 2012. He did not
file suit until November 11, 2014, and his suit is untimely. Thus, the trial court did
not err in granting Appellees’ motion for summary judgment based on the statute
of limitations, and this Court should affirm the trial court’s judgment.
A. Standard of Review
An appellate court reviews the grant or denial of a motion for summary
judgment de novo. Safeco Lloyds Ins. Co. v. Allstate Ins. Co., 308 S.W.3d 49, 52
(Tex. App.—San Antonio 2009, no pet.) (citing Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 847 (Tex. 2009); Tex. Mun. Power
Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192 (Tex. 2007)). In a
traditional motion for summary judgment, the movant has the burden of showing
there is no genuine issue of material fact and that it is entitled to judgment as a
matter of law. Id.
When a defendant moves for summary judgment on an affirmative defense,
such as the statute of limitations, the defendant must conclusively prove each
element of that defense. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001); City of
BRIEF OF APPELLEES PAGE 8
San Antonio v. Hernandez, 53 S.W.3d 404, 407 (Tex. App.—San Antonio 2001,
pet. denied). If a movant establishes that the statute of limitations bars the action,
the non-movant must then adduce summary judgment proof raising a fact issue in
avoidance of the statute of limitations. Nolan v. Hughes, 349 S.W.3d 209, 212
(Tex. App.—Dallas 2011, no pet.). Evidence favorable to the non-movant is taken
as true, and every reasonable inference in favor of the non-movant will be resolved
in its favor. City of San Antonio, 53 S.W.3d at 407.
B. Appellant’s Claims Are Barred by the Statute of Limitations in
Section 74.251(a)
Appellant’s claims are barred by the two-year statute of limitations in
Chapter 74. There is no dispute that Appellant’s claims are for health care
liability. (See CR 4). Chapter 74 imposes a two-year statute of limitations for
health care liability claims:
(a) 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; provided that, minors under the age of 12 years shall have
until their 14th birthday in which to file, or have filed on their behalf,
the claim. Except as herein provided this section applies to all persons
regardless of minority or other legal disability.
TEX. CIV. PRAC. & REM. CODE § 74.251(a). The “notwithstanding any other law”
language of section 74.251(a) imposes an absolute two-year limitations period on
BRIEF OF APPELLEES PAGE 9
health care liability claims. Kimbrell v. Molinet, 288 S.W.3d 464, 468 (Tex.
App.—San Antonio 2008), aff'd, 356 S.W.3d 407 (Tex. 2011).
Here, Appellees submitted summary judgment evidence conclusively
establishing that Appellant’s claims are barred by the two-year statute of
limitations in section 74.251(a). (See CR 21-33). The alleged breaches of the
standards of care took place between August 30, 2012, (the date Appellant was
discharged from Houston Northwest Medical Center with allegedly deficient
prescriptions) and September 4, 2012 (the date Appellant was readmitted to the
hospital). (CR 5-6). Thus, Appellant’s cause of action accrued no later than
September 4, 2012. (CR 24, 39).4 Under section 74.251(a), Appellant was
required to file suit by September 4, 2014. It is undisputed that Appellant did not
file his suit against Appellees until November 11, 2014. (CR 3). Thus, under
section 74.251(a), Appellant’s claims are barred in the absence of a pertinent
tolling provision. See TEX. CIV. PRAC. & REM. CODE § 74.251(a). This Court
should affirm the trial court’s judgment that Appellant take nothing against
Appellees.
4
A plaintiff may not choose for accrual the most favorable date that falls within section
74.251(a)’s three categories. Zweig v. S. Texas Cardiothoracic & Vascular Surgical Associates,
PLLC, 373 S.W.3d 605, 610 (Tex. App.—San Antonio 2012, no pet.) (citing Shah v. Moss, 67
S.W.3d 836, 841 (Tex. 2001)). Rather, if the date the alleged tort occurred is ascertainable,
limitations must begin on that date. Id. Here, the date of accrual is likely August 30, 2012 (the
date of discharge); this date arguably meets all three of section 74.251(a)’s criteria. (See Br. at
6). But it is immaterial whether limitations began running on August 30, 2012 or September 4,
2012, or some date in between because Appellant filed suit after more than two years after
September 4, 2012. (CR 3).
BRIEF OF APPELLEES PAGE 10
C. Appellant Not Entitled To Toll Limitations in Absence of Proper
Pre-suit Notice with Medical Authorization
While Appellant contends that limitations were tolled based on pre-suit
notice, this assertion is untenable. Appellant did not comply with Chapter 74’s
pre-suit notice requirements—most importantly the requirement of providing the
medical authorizations for release of health information—and therefore may not
avail himself of the tolling provision.
1. Medical Authorization Must Accompany Pre-suit Notice To
Trigger Tolling Period
Section 74.051 of the Civil Practice and Remedies Code provides that:
(a) 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 release of protected health information as required under
Section 74.052.
TEX. CIV. PRAC. & REM. CODE § 74.051(a) (emphasis added). In addition, section
74.052 provides:
(a) Notice of a health care claim under Section 74.051 must be
accompanied by a medical authorization in the form specified by
this section. 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.
BRIEF OF APPELLEES PAGE 11
Id. § 74.052(a) (emphasis added).5 Section 74.052(c) states that the required
medical authorization form “shall be in the following form,” and it proceeds to
give the text of the form, with several blanks to be filled in with information
specific to the claimant's claim. Id. § 74.052(c).
The notice and authorization form are intended to afford the defendant the
ability to investigate the claim and resolve it prior to protracted litigation. See id. §
74.052; Brannan v. Toland, No. 01–13–00051–CV, 2013 WL 4004472, at *2 (Tex.
App.—Houston [1st Dist.] Aug. 6, 2013, pet. denied) (mem.op.). The authorization
form grants the defendant physician or health care provider authorization to
disclose the plaintiff's medical records. Id. The form must also identify the
plaintiff's treating physicians for the five years before “the incident made the basis
of the accompanying Notice of Health Care Claim,” and authorize the defendants
to obtain the plaintiff's medical records from these physicians. TEX. CIV. PRAC. &
REM. CODE § 74.052(c).
The notice and medical authorization form encourage pre-suit investigation,
negotiation, and settlement of health care liability claims. See Jose Carreras,
M.D., P.A. v. Marroquin, 339 S.W.3d 68, 73 (Tex. 2011). (“The Legislature
intended that ‘by requiring a potential claimant to authorize the disclosure of
5
“Must accompany” is a directive that creates a mandatory condition precedent. Jose
Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 68, 73 (Tex. 2011) (citing Helena Chem. Co. v.
Wilkins, 47 S.W.3d 486, 494 (Tex. 2001)).
BRIEF OF APPELLEES PAGE 12
otherwise privileged information sixty days before suit is filed, the statute [would]
provide[ ] an opportunity for health care providers to investigate claims and
possibly settle those with merit at an early stage.’”). Indeed, the statutorily
approved medical authorization form explicitly states that it is intended to facilitate
“investigation and evaluation of the health care claim described in the
accompanying Notice of Health Care Claim” or “[d]efense of any litigation arising
out of the claim made the basis of the accompanying Notice of Health Care
Claim.” Mitchell v. Methodist Hosp., 376 S.W.3d 833, 836-37 (Tex. App.—
Houston [1st Dist.] 2012, pet. denied) (quoting TEX. CIV. PRAC. & REM. CODE §
74.052(c)).
The statute provides that if the claimant gives notice in compliance with
Chapter 74, the limitations period is tolled for seventy-five days:
(c) 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
TEX. CIV. PRAC. & REM. CODE § 74.051(c) (emphasis added). The Texas Supreme
Court and myriad intermediate courts have recognized that strict compliance with
the notice and authorization provisions is required.
In Carreras, 339 S.W.3d at 73, the Marroquins prosecuted claims for
damages resulting from their daughter’s wrongful death after treatment by various
health care providers. On December 17, 2003, two days before the two-year
BRIEF OF APPELLEES PAGE 13
statute of limitations would have expired, the Marroquins provided Dr. Carreras
with notice of their health care liability claims. Id. at 70. However, the
Marroquins did not send an authorization form to Dr. Carreras at that time. On
February 26, 2004, the Marroquins filed suit. Id. Dr. Carreras filed a plea in
abatement and answer objecting to the case proceeding because he had not
received the statutorily required authorization and requesting an abatement under
section 74.052. Id. The trial court granted Dr. Carreras's plea in abatement on June
2, 2004. Id.
Two weeks later, the Marroquins provided Dr. Carreras with another notice
including a list of medical providers and an authorization form that complied with
the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA),
but not with the state requirements under Chapter 74. Id. The Marroquins later
provided Dr. Carreras with an authorization form on September 10, 2004 that
complied with sections 74.051 and 74.052, approximately nine months after the
Marroquins provided their original notice unaccompanied by an authorization and
almost seven months after they filed suit. Id.
Dr. Carreras moved for summary judgment, claiming that the Marroquins’
claims were barred by the applicable statute of limitations. Id. The Marroquins
argued that notice was provided and the suit was filed within the statute of
limitations as tolled by Chapter 74. Id. The trial court held that the requirement for
BRIEF OF APPELLEES PAGE 14
notice and an authorization form under sections 74.051 and 74.052 were separate,
and because notice had been given, the statute of limitations was tolled,
notwithstanding the Marroquins' failure to simultaneously provide the statutorily
required authorization. Id. The trial court therefore denied Dr. Carreras's motion
for summary judgment, and the court of appeals affirmed. Id. at 71.
After detailing the statutory provisions in sections 74.051 and 74.052, the
supreme court analyzed the issue of whether limitations could be tolled when the
authorization did not accompany the notice. The court held that the language of
the statute demanded that the authorization accompany the notice in order to be
effective:
The text of section 74.051(c), which states that notice must be “given
as provided,” does not provide a facial definition of notice. Both
sections 74.051(a) and 74.052(a) specify that the notice “must be
accompanied by” an authorization form, and section 74.052(a)
provides for abatement if an authorization form is not provided “along
with” notice. Id. §§ 74.051(a), .052(a). “Must accompany” is a
directive that creates a mandatory condition precedent. See Helena
Chem. Co. v. Wilkins, 47 S.W.3d 486, 494 (Tex.2001) (holding that
the legislated requirement that a person “must” perform an act creates
a condition precedent (citing TEX. GOV'T CODE § 311.016(3))). If the
authorization does not accompany the notice, then the benefit of the
notice—tolling—may not be utilized.
Id. at 72 (emphasis added).
The supreme court then discussed that the legislative history of sections
74.051 and 74.052 supported this interpretation. The Legislature originally
introduced the notice requirement provision in section 74.051 as part of the
BRIEF OF APPELLEES PAGE 15
Medical Liability and Insurance Improvement Act (MLIIA) in 1977. Medical
Liability and Insurance Improvement Act, 65th Leg., R. S., ch. 817, § 4.01, 1977
Tex. Gen. Laws 2039, 2047–48 (hereinafter “article 4590i”), repealed by Act of
June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884.
The original language of the statute provided, as it does now, that any person
asserting a health care liability claim must give written notice to the health care
provider at least sixty days before filing suit. Id. However, it did not include the
last sentence in the successor provision, section 74.051(a). At that time, written
notice of a claim would trigger tolling. The notice requirement remained
unchanged until 2003.
In House Bill 4 in 2003, the MLIIA was codified in Chapter 74 of the Civil
Practice and Remedies Code, and the Legislature added specific language to
section 74.051(a) requiring that notice of a health care liability claim “must be
accompanied” by the medical authorization form. TEX. CIV. PRAC. & REM. CODE §
74.051(a). “Although notice and a medical authorization are treated separately for
some purposes, after the 2003 amendment to the text, both are required to
constitute notice “as provided” by Chapter 74.” Carreras, 339 S.W.3d at 72-73
(emphasis added).
BRIEF OF APPELLEES PAGE 16
Accordingly, for the statute of limitations to be tolled in a health care
liability claim pursuant to Chapter 74, a plaintiff must provide both the statutorily
required notice and the statutorily required authorization form. Id. at 74.
Here, Appellant did not provide Appellees with the notice and medical
authorization necessary to toll limitations. (CR 96-98). On July 13, 2013,
Appellant sent Wal-Mart a purported Notice of Claim and an accompanying
authorization in the prior suit. (CR 55-58). Appellees did not receive a notice of
claim letter or an authorization form. While Appellant relies on notice provided to
Wal-Mart, the authorization form provided to Wal-Mart, only granted Wal-Mart
the authority to obtain and disclose protected health information. As the
authorization did not provide Appellees or co-defendants in this suit with the
authority to obtain protected health information pursuant to section 74.052, the
notice did not comply with the statutory requirements. See Carreras, 339 S.W.3d
at 73-74. Consequently, Appellant’s “notice” did not toll the limitations period.
Therefore, Appellant’s suit against Appellees filed on November 11, 2014—at
least two years and sixty-eight days after the cause of action accrued—was
untimely. Carreras, 339 S.W.3d at 73-74; TEX. CIV. PRAC. & REM. CODE §
74.251(a).
2. Appellant’s Case Law Does Not Provide Support
Appellant relies primarily on De Checa v. Diagnostic Center Hospital, Inc.,
852 S.W.2d 935 (Tex. 1993) for the proposition that notice given to one party will
BRIEF OF APPELLEES PAGE 17
toll limitations as to every other party and potential parties. But De Checa did not
answer the question posed here: whether a plaintiff may toll limitations despite that
no notice was given to any defendant in the present suit and despite a failure to
provide the statutorily required authorization form for release of health
information.
In De Checa, the plaintiffs served pre-suit notice of their claim on certain
health care providers who were sued in the same case but not involved in the
appeal within two years of accrual. Id. at 937; De Checa v. Diagnostic Center
Hosp., Inc., 967 F.2d 126, 126 (5th Cir. 1992). They also served pre-suit notice on
Drs. Burbridge, Burnazian, and Davis within two years and seventy-five days. Id.
The plaintiffs urged that the notice of the claim they sent to the other defendants
within two years of the claim's accrual and more than sixty days before filing their
lawsuit also tolled the statute of limitations for the physicians for seventy-five
days. Id. The physicians asserted that the plaintiffs could not take advantage of
the tolling period, that when a health care provider is served with notice of a claim,
the tolling period is triggered for the recipient only, and thus, the failure to notify
them individually within the statutorily-prescribed period meant that the suit
against them was barred two years after the completion of the medical treatment.
Id. The court concluded that the “potential parties” language in section 4.01(c) of
former article 4590i meant that notice to any health care provider under subsection
BRIEF OF APPELLEES PAGE 18
(a) tolled the limitations period for seventy-five days as to all parties against whom
a health care liability claim is timely asserted. Id. at 937-38.
Not only did De Checa involve interpretation of former article 4590i, but
proper notice had been provided to other defendants named in the same suit as Drs.
Burbridge, Burnazian, and Davis. Art. 4590i provided, as it does now, that any
person asserting a health care liability claim must give written notice to the health
care provider at least sixty days before filing suit. Medical Liability and Insurance
Improvement Act, 65th Leg., R. S., ch. 817, § 4.01, 1977 Tex. Gen. Laws 2039,
2047–48, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003
Tex. Gen. Laws 847, 884. However, it did not include the last sentence in the
successor provision, section 74.051(a):
“The notice must be accompanied by the authorization form for release of
protected health information as required under Section 74.052.”
TEX. CIV. PRAC. & REM. CODE § 74.051(a) (emphasis supplied).
Further, since De Checa, the supreme court in Carreras made clear the
importance and necessity of the statutory authorization form as part of giving
proper notice in section 74.051. Simply put, proper notice does not occur in the
absence of the statutory authorization form in section 74.052. Carreras, 339
S.W.3d at 72-74. When a defendant physician or health care provider is not
provided the statutorily mandated authorization, the claimant fails to comply with
BRIEF OF APPELLEES PAGE 19
Chapter 74’s notice requirements and limitations is not tolled. Carreras, 339
S.W.3d at 72-74; Brannan v. Toland, No. 01–13–00051–CV, 2013 WL 4004472,
at *2 (Tex.App.—Houston [1st Dist.] Aug. 6, 2013, pet. denied) (mem.op.) (where
purported authorization form did not identify specific records from other medical
providers and did not give permission to the defendants to seek the disclosure of
other records, but merely authorized a defendant to disclose his medical records to
the plaintiffs’ attorney, but not to obtain any records from other physicians, court
held that plaintiff failed to comply with statute and was not entitled to toll
limitations); Mitchell v. Methodist Hosp., 376 S.W.3d 833, 837 (Tex. App.—
Houston [1st Dist.] 2012, pet. denied) (HIPAA form provided by plaintiff did not
specifically identify defendant hospital as an entity authorized to obtain protected
health information and did not identify plaintiff’s treating physicians for the five
years before the incident, and therefore was inadequate to trigger tolling of
limitations period); Nicholson v. Shinn, No. 01–07–00973–CV, 2009 WL 3152111,
at *4-*5 (Tex. App.-Houston [1st Dist.] Oct. 1, 2009, no pet.) (mem. op.) (notice is
not proper, and the statute of limitations is not tolled when notice is provided
without an authorization form or with a deficient authorization form).
De Checa is also distinguishable because there, the defendants were served
pre-suit notice. De Checa, 852 S.W.2d at 937. That is not the case here. Not one
of the defendants in this suit was served notice or a statutory medical authorization
BRIEF OF APPELLEES PAGE 20
prior to Appellant filing the present suit. Appellant, relying on De Checa, claims
that notice to the defendants in this suit was unnecessary because notice had been
sent to the defendant Wal-Mart in the prior case against that company, a suit to
which Appellees were not parties. (CR 71).6 But this argument carries little
weight. Not only did Appellant’s failure to provide the notice and authorization
deny Appellees the opportunity to investigate the claim pre-suit, but it also failed
to meet the standard established by the supreme court requiring statutory notice be
provided to each health care provider sued. De Checa, 852 S.W.2d at 938-39.
Further, the other cases relied upon by Appellant were decided before the
2003 legislative changes that mandated use of the statutory authorization form and
before Carreras which directed that failure to provide that form with notice
precludes tolling of the limitations period. See Thompson v. Community Health
Inv., 923 S.W.2d 569 (Tex. 1996); Parrish v. Brooks, 856 S.W.2d 522 (Tex.
6
Research has not revealed any decisions holding that “parties and potential parties” as
used in section 74.051(c) would include parties and potential parties to a subsequent state-court
suit filed after summary judgment had been granted in the prior suit filed against the party who
actually received the statutory notice.
Indeed, reading section 74.051(a) together with section 74.051(c), as the Court must in
interpreting the statute, EXLP Leasing, LLC v. Galveston Cent. Appraisal Dist., No. 14-14-
00268-CV, 2015 WL 5025534, at *4 (Tex. App.—Houston [14th Dist.] Aug. 25, 2015, pet. filed)
(citing Tex. Dept. of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004)), notice
is required before filing “suit” (section 74.051(a)), and if properly given, then tolling applies to
all “parties and potential parties” (section 74.051(c)). Interpreting this plain language supports
Appellees’ interpretation: tolling applies to the “parties and potential parties” of the
contemplated suit for which notice is provided. Here, notice to Wal-Mart in Appellant’s first suit
would not toll limitations for parties and potential parties, like Appellees, named in a separate,
subsequent suit.
BRIEF OF APPELLEES PAGE 21
App.—Texarkana 1993, no writ); Sewell v. Adams, 854 S.W.2d 257 (Tex. App.—
Houston [14th Dist.] 1993, no writ). A post-2003 case cited by Appellant, Rabatin
v. Vazquez, 281 S.W.3d 563 (Tex. App.—El Paso 2008, no pet.), is equally
inapplicable. There, the plaintiffs sent a notice letter and a faulty authorization
form to one defendant in October and, to all the other defendants in December. Id.
at 564. One defendant’s counsel however, was able to obtain records using the
faulty authorization form. Id. at 565. The El Paso Court of Appeals found that the
authorization forms were sufficient to toll limitations because the notice letter and
the improperly filled out authorization still gave the defendants fair warning of the
claim and satisfied the purpose of the statute. Id. at 562. Regardless, Rabatin was
decided before Carreras and thus its value is questionable at best.7
It simply cannot be the law that a plaintiff—having suffered an adverse
summary judgment in a prior suit to which certain physicians are not parties—can
subsequently file suit against those physicians after the statute of limitations has
run despite that those physicians received neither pre-suit notice nor medical
authorizations.
7
The Rabatin cases—a trio of cases with the identical limitations/notice/tolling issues—
were a basis for the supreme court’s jurisdiction in Carreras. Carreras, 339 S.W.3d at 71. And
the supreme court ultimately rejected the Rabatin court’s holdings. See id. at 71-74.
BRIEF OF APPELLEES PAGE 22
D. Appellant’s Procedural Tactics Undermine Legislative Intent
The notice and authorization provisions give the defendant time and the
ability to procure the plaintiff's records in order to assess whether the claim has
merit and whether the defendant should consider early, pre-suit resolution. See
TEX. CIV. PRAC. & REM. CODE § 74.052; Carreras, 339 at 73 (“The Legislature
intended that ‘by requiring a potential claimant to authorize the disclosure of
otherwise privileged information sixty days before suit is filed, the statute [would]
provide[ ] an opportunity for health care providers to investigate claims and
possibly settle those with merit at an early stage.’”) (quoting In re Collins, 286
S.W.3d 911, 916-17 (Tex. 2009)).8 As the supreme court explained:
[A]llowing the advantages of tolling the statute of limitations without
provision of an authorization form would undermine the Legislature's
intention to provide a method for quick, efficient settlement of claims
and to identify non-meritorious claims early. If an authorization
form is not provided pre-suit, the pre-suit negotiation period
triggered by the notice requirement would become meaningless,
as doctors receiving notice without an authorization form could not
procure medical records from other physicians or institutions to
investigate the claims asserted against them. The statute of limitations
is tolled only if both notice and an authorization form are provided.
Carreras, 339 S.W.3d at 73.
Here, while Appellant relies on the pre-suit notice and authorization given to
Wal-Mart in a prior suit, any such pre-suit negotiation period was rendered
8
Further, by requiring the disclosure of relevant health care information, both verbal and
written, section 74.052 furthers “full, efficient, and cost effective discovery.” Collins, 286
S.W.3d at 916-17.
BRIEF OF APPELLEES PAGE 23
meaningless by Appellant’s subsequent failure to provide authorizations to
Appellees. Appellees did not receive any notice or a medical authorization until
after the suit was filed. As such, Appellees were not given fair warning of the
claim. Further, no Appellee in this suit was afforded the opportunity to obtain
Appellant’s medical records prior to suit, thus the legislative purpose of the statute
was not met.
Appellant suggests that predictable limitations periods should outweigh the
goal of pre-suit negotiations and efficient settlement of claims. (Br. at 12-14). But
the De Checa court’s discussion of predictable limitations periods has little weight
here because none of the current defendants received notice or authorizations. The
fact that different defendants might have slightly different limitations deadlines is
no reason to ignore the notice and authorization requirements. And here, Wal-
Mart’s limitations period likely would have differed from Appellees’ regardless
because Appellant visited Wal-Mart’s pharmacy the day after he was discharged
from Houston Northwest Medical Center. (See CR 5). And the Legislature
understood that different limitations periods may apply to one suit, depending on
the care rendered. See TEX. CIV. PRAC. & REM. CODE § 74.251(a). Calculating the
correct limitations period for each defendant in this suit is not some labyrinthine
task that militates against the requirement of notice and authorization for the
BRIEF OF APPELLEES PAGE 24
Appellees to obtain the medical records necessary to evaluate the claims and
engage in pre-suit negotiations.
Appellant also argues that, in the absence of a timely medical authorization
which deprives the defendant the opportunity to evaluate the case before suit,
abatement is the proper remedy. But once the limitations deadline has passed, the
remedy of a sixty-day abatement is no longer available.
The Carreras plaintiffs similarly argued that 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, 339 S.W.3d at 73. The Carreras court could have held that the
plaintiffs’ failure to provide the authorization form simply meant that the
defendants were entitled to a sixty-day abatement. After all, the plaintiffs had sent
notice prior to the limitations deadline. Carreras, 339 S.W.3d at 70. But the
supreme court rejected this argument for several reasons:
If the authorization form was not considered a part of the notice
requirement, an absurd result would be possible under Chapter 74.
Section 74.052(a) provides that "[f]ailure to provide [the]
authorization along with the notice of health care claim shall 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). This language does not set a
deadline by which plaintiffs must abide. Instead, the abatement could
continue at the plaintiff's leisure until sixty days after the plaintiff
chooses to provide the defendant with an authorization. It is not
reasonable to interpret a statute which is meant to provide speedy
resolution of meritorious health care liability claims and quick
BRIEF OF APPELLEES PAGE 25
dismissal of nonmeritorious claims to allow a lengthy or indefinite
delay of the resolution of a health care liability claim.
***
[T]he abatement 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
Id. at 73-74 (emphasis added).
Here, as in Carreras, the abatement provision has no application because
Appellant’s suit could not be abated and still filed within the limitations period.
The breach that Appellant complains of occurred between the dates of August 30,
2012 to September 4, 2012. (CR 5-6). Thus, according to the statute, the
limitations period began at the latest on September 4, 2012 and expired no later
than September 4, 2014. Appellant did not file suit until November 11, 2014.
Thus, the remedy of abatement is not available. See also Mitchell v. Methodist
Hosp., 376 S.W.3d 833, 839 (Tex. App.—Houston [1st Dist.] 2012, pet. denied)
(abatement provision had no application because the plaintiffs’ suit could not have
been abated and still filed within the limitations period).
Appellant then relies on College Station Medical Center v. Kilaspa, No. 10-
14-00374-CV, 2015 WL 4504361 (Tex. App.—Waco Jul. 23, 2015, pet. filed) to
support that the preference for pre-suit negotiation must somehow be subverted to
BRIEF OF APPELLEES PAGE 26
other vague considerations. But in Kilaspa the plaintiffs actually sent the notice
and authorization in accordance with section 74.051, i.e. by certified mail, return
receipt requested, prior to the expiration of the limitations period. Id. at *4-*5.
The crux of the court’s decision was that the plaintiff should not be required to
ensure that the notice and authorization are correctly delivered and that the
defendant claim the mail, where the plaintiff sent the documents in accordance
with the statute. Id.9 Here, there is no assertion or evidence that Appellant sent the
notice and authorizations to Appellees in the manner required by the statute, or that
such documents were incorrectly delivered or went unclaimed. Appellant did not
even attempt to give Appellees the notice or authorization required prior to filing
suit. Appellant’s failure to do so should not deprive Appellees of the Legislature-
mandated pre-suit notice and attendant investigation and negotiation period.
Appellant’s cause of action accrued no later than September 4, 2012. In the
absence of a tolling provision, the limitations period expired September 4, 2014.
Appellant failed to give the statutorily-mandated notice with medical
authorizations to the defendants in this suit. Accordingly, Appellant was not
entitled to toll the limitations period. Appellant did not file suit against Appellees
until November 11, 2014, at least two years and sixty-eight days after the cause of
action accrued. Thus, Appellant’s claims are barred by limitations.
9
A petition for review was filed in Kilaspa on October 8, 2015.
BRIEF OF APPELLEES PAGE 27
CONCLUSION AND PRAYER
Appellees conclusively proved that Appellant filed suit more than two years
after his cause of action accrued. Thus, Appellant’s suit is barred by the statute of
limitations. The trial court did not err when it granted Appellees’ motion for
summary judgment based on limitations, and this Court should affirm the trial
court’s judgment.
Appellant is not entitled to toll the limitations period where he failed to
provide Appellees with pre-suit notice and medical authorizations in this suit.
Pre-suit notice is ineffective to toll limitations when the claimant fails to
contemporaneously provide the defendant with the medical authorization necessary
to procure medical records, investigate the claim, and engage in pre-suit
negotiations.
Appellant’s position that notice to Wal-Mart in a prior suit wholly
undermines the Legislature’s intent in creating the pre-suit notice and medical
authorization requirements. When pre-suit notice and medical authorizations are
not provided, as here, defendants are deprived of the opportunity to obtain medical
records necessary to investigate and evaluate the claim and attempt pre-suit
settlement negotiations, thereby thwarting the statutory purposes of reducing
litigation costs and encouraging settlement. Further, an abatement remedy is not
available where Appellant missed the deadline for filing suit without providing the
proper pre-suit notice and medical authorization.
BRIEF OF APPELLEES PAGE 28
Appellant filed suit more than two years after his cause of action accrued
and Appellant is not entitled to toll limitations. Therefore, the trial court correctly
granted Appellees’ motion for summary judgment. This Court should affirm the
trial court’s judgment.
THEREFORE, Appellees Ikedinobi U. Eni, M.D., Ikedinobi U. Eni, M.D.,
P.A., and Eni Health Care respectfully pray this Court affirm the March 20, 2015
Final Summary Judgment granting Defendants’ Traditional Motion for Summary
Judgment, and grant such other and further relief, whether general or special, at
law and in equity, as this Court deems just.
BRIEF OF APPELLEES PAGE 29
Respectfully submitted,
COOPER & SCULLY, P.C.
By: /s/Diana L. Faust
DIANA L. FAUST
diana.faust@cooperscully.com
Texas Bar No. 00793717
KYLE M. BURKE
kyle.burke@cooperscully.com
Texas Bar No. 24073089
900 Jackson Street, Suite 100
Dallas, Texas 75202
Telephone: (214) 712-9500
Facsimile: (214) 712-9540
SPROTT NEWSOM QUATTLEBAUM
MESSENGER
JOEL RANDAL SPROTT
sprott@sprottnewsom.com
Texas Bar No. 18971580
2211 Norfolk, Suite 1150
Houston, Texas 77098
Telephone: (713) 523-8338
Facsimile: (713) 523-9422
ATTORNEYS FOR APPELLEES
IKEDINOBI U. ENI, M.D.,
IKEDINOBI U. ENI, M.D., P.A.,
AND ENI HEALTH CARE
BRIEF OF APPELLEES PAGE 30
CERTIFICATE OF COMPLIANCE
I hereby certify that this Brief of Appellees was prepared using Microsoft
Word 2010, which indicated that the total word count (exclusive of those items
listed in rule 9.4(i)(1) of the Texas Rules of Appellate Procedure, as amended) is
7,041 words.
/s/ Diana L. Faust
DIANA L. FAUST
BRIEF OF APPELLEES PAGE 31
CERTIFICATE OF SERVICE
I hereby certify that I served a true and correct copy of this Brief of
Appellees upon on all counsel of record, via efile, on this the 3rd day of December,
2015, at the following address:
Mr. Iain Simpson VIA EFILE
iain@simpsonpc.com
Simpson, P.C.
1333 Heights Boulevard, Suite 102
Houston, Texas 77008
Lead Counsel for Appellant
Mr. Steven R. Davis VIA EFILE
sdavis@davis-davislaw.com
Mr. John A. Davis, Jr.
jdavis@davis-davislaw.com
Davis & Davis
440 Louisiana, Suite 1850
Houston, Texas 77002
Co-Counsel for Appellant
Mr. James Edwards VIA EFILE
jbe@malpracticedefense.com
Mr. Donald Stephens
dss@malpracticedefense.com
Edwards & Stephens
12603 Southwest Freeway, Suite 200
Stafford, Texas 77477
Counsel for Appellees
Tulsidas S. Kuruvanka, M.D., and
Northwest Houston Cardiology, P.A.
/s/Diana L. Faust
DIANA L. FAUST
BRIEF OF APPELLEES PAGE 32
ORAL ARGUMENT REQUESTED
NO. 01-15-00350-CV
IN THE COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS
AT HOUSTON, TEXAS
SHAN KOVALY,
Appellant,
v.
TULSIDAS KURUVANKA, M.D., ET AL. AND
IKEDINOBI U. ENI, M.D., ET AL.,
Appellees.
On Appeal from the 113th District Court
Harris, County, Texas, Cause No. 2014-66001
(Hon. Michael Landrum)
APPENDIX TO BRIEF OF APPELLEES IKEDINOBI U. ENI, M.D.,
IKEDINOBI U. ENI, M.D., P.A., AND ENI HEALTH CARE
In compliance with rule 38 of the Texas Rules of Appellate Procedure,
Appellees Ikedinobi U. Eni, M.D., Ikedinobi U. Eni, M.D., P.A., and Eni Health
Care submit this Appendix to their Brief of Appellees containing the following
items:
Tab A: Final Summary Judgment (CR 103)
D/931547v2
BRIEF OF APPELLEES PAGE 33
APPENDIX TAB “A”
Pc
f-- PIL ED
(7) DistVttg
No 2014-66001 mne MAR 2 0 2015
SHAN KOVALY IN
Plaintiff
VS
IKEDINOBI U ENI, M D ,
IKEDINOBI U ENI, P A , OF HARRIS COUNTY, TEXAS
ENI HEALTH CARE
TULSIDAS S KURUVANKA and
NORTHWEST HOUSTON
CARDIOLOGY, P A
Defendants 113TH JUDICIAL DISTRICT
FINAL SUMMARY JUDGMENT
Defendants Ikedinobi U Eni, MD, Ikedinobi U Eni, MD, PA and Eni Health Care
Traditional Motion for Summary Judgment, filed February 20, 2015, and Traditional
Motion for Summary Judgment of Defendants Tulsidas S Kuruvanka, M D and
Northwest Houston Cardiology, P A , filed February 26, 2015, were heard The parties
appeared The Court considered all timely-filed papers germane to the motion, applicable
authority and the argument presented in court
Summary judgment is awarded in favor of all Defendants and against Plaintiff All
of the Plaintiffs causes of action are dismissed
Costs are taxed against the Plaintiff
This is a final judgment that disposes of all claims and it is appealable
Signed March 20, 2015
Mic andrum, Judge
103