Ravi Botla, M.D. v. Salvador Del Toro, Jr.

ACCEPTED
04-14-00061-CV
FOURTH COURT OF APPEALS
04-15-00061-CV SAN ANTONIO, TEXAS
2/6/2015 3:33:46 PM
KEITH HOTTLE
CLERK
ORAL ARGUMENT REQUESTED
NO.
IN THE FOURTH COURT OF APPEALS
AT SAN ANTONIO, TEXAS
RAVI BOTLA, M.D.,
Appellant,
v.
SALVADOR DEL TORO, JR.,
Appellee.
On Appeal from the 131st District Court
Bexar County, Texas, Cause No. 2013-CI-19135
(Hon. Peter Sakai)
APPELLANT’S PETITION FOR PERMISSION TO APPEAL ORDER
DENYING MOTION FOR SUMMARY JUDGMENT
Respectfully submitted,
COOPER & SCULLY, P.C. EVANS, ROWE
& HOLBROOK, P.C.
DIANA L. FAUST BRETT B. ROWE
diana.faust@cooperscully.com bbrowe@evans-rowe.com
Texas Bar No. 00793717 Texas Bar No. 17331750
MICHELLE E. ROBBERSON NICKI K.ELGIE
michelle.robberson@cooperscully.com nelgie@evans-rowe.com
Texas Bar No. 16982900 Texas Bar No. 24069670
900 Jackson Street, Suite 100 10101 Reunion Place, Suite 900
Dallas, Texas 75202 San Antonio, Texas 78216
(214) 712-9500 (210) 384-3271
(214) 712-9540 (fax) (210) 340-6664 (fax)
COUNSEL FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL
Ravi Botla, M.D. Defendant/Appellant
Salvador Del Toro, Jr. Plaintiff/Appellee
Trial and Appellate Counsel for Appellant
Diana L. Faust Appellate Counsel for Appellant
Michelle E. Robberson
Kyle M. Burke
Cooper & Scully, P.C.
900 Jackson Street, Suite 100
Dallas, Texas 75202
Brett B. Rowe Trial and Appellate Counsel for Appellant
Nicki K. Elgie
Evans, Rowe & Holbrook, P.C.
10101 Reunion Place, Suite 900
San Antonio, Texas 78216
Trial and Appellate Counsel for Appellee
George W. Mauze, II Trial and Appellate Counsel for Appellee
Mauze Law Firm
2632 Broadway, Suite 401S
San Antonio, Texas 78215
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS....................................................................................... ii
TABLE OF AUTHORITIES ................................................................................ iv
TABLE OF ABBREVIATIONS........................................................................... vi
I. COMPLIANCE WITH RULE 28.3(e)(1) OF THE TEXAS RULES
OF APPELLATE PROCEDURE..................................................................1
II. STATEMENT OF THE CASE .....................................................................2
III. STATEMENT OF JURISDICTION .............................................................3
IV. ISSUES PRESENTED..................................................................................4
V. STATEMENT OF FACTS ...........................................................................6
A. Plaintiff Alleges Negligence by Defendants........................................6
B. Plaintiff Provides a Chapter 74 Notice Letter But Attaches a
Deficient Medical Authorization.........................................................7
C. Plaintiff Files His Health Care Liability Claim ...................................8
D. Dr. Botla Moves for Summary Judgment on Limitations ....................8
E. Trial Court Conducts Hearing on Dr. Botla’s Motion .........................9
VI. SUMMARY OF THE ARGUMENT ..........................................................11
VII. ARGUMENT .............................................................................................14
A. Standards for Permissive Interlocutory Appeals................................14
B. Controlling Question of Law No.1: Whether Plaintiff’s
Original Medical Authorization was Legally Sufficient to
Trigger the 75-Day Tolling Provision in Section 74.251(c)...............16
ii
C. Controlling Question of Law No. 2: Whether Dr. Botla Had
Standing to Challenge the Medical Authorization Provided to
Another Defendant............................................................................19
D. Controlling Question of Law No. 3: Whether a Statute or Civil
Procedure Rule Can Trump Chapter 74’s Limitation Provision
and Extend the Limitations Deadline from a Sunday to a
Monday.............................................................................................20
E. Lastly, Immediate Appeal of the Order Will Materially
Advance the Ultimate Termination of the Litigation .........................23
CERTIFICATE OF COMPLIANCE ....................................................................26
CERTIFICATE OF SERVICE..............................................................................26
APPENDIX TO APPELLANT’S PETITION FOR PERMISSION TO
APPEAL ORDER DENYING MOTION FOR SUMMARY JUDGMENT ..........27
iii
TABLE OF AUTHORITIES
Case Page(s)
Bala v. Maxwell,
909 S.W.2d 889 (Tex. 1995) .......................................................................25, 26
Belehu v. Lawniczak,
437 S.W.3d 913 (Tex. App.—Houston [14th Dist.] 2014, pet. filed)............15, 22
BNSF Ry. Co. v. Acosta,
No. 08-13-00268-CV, 2014 WL 5794620
(Tex. App.—El Paso, Nov. 7, 2014, no. pet.) ................................................... 15
Brannan v. Toland,
No. 01-13-00051-CV, 2013 WL 4004472
(Tex. App.—Houston [1st Dist.], Aug. 6, 2013, pet. denied) (mem. op.) .......... 17
Cantu v. Mission Reg. Med. Ctr.,
No. 13-12-00568-CV, 2014 WL 1879292
(Tex. App.–Corpus Christi, May 8, 2014, no pet.) (mem. op.) ......................... 17
Certain Underwriters at Lloyd's of London Subscribing to Policy Number:
£FINFR0901509 v. Cardtronics, Inc.,
438 S.W.3d 770 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ................15, 22
Chilkewitz v. Hyson,
22 S.W.3d 825 (Tex. 1999).............................................................................. 22
Gale v. Lucio,
445 S.W.3d 849 (Tex. App.—Houston [1st Dist.] 2014, pet. filed)........15, 22, 23
Gulley v. State Farm Lloyds,
350 S.W.3d 204 (Tex. App.—San Antonio 2011, no pet.) ............................... 14
Hill v. Milani,
686 S.W.2d 610 (Tex. 1985) ............................................................................ 21
Jose Carreras, M.D., P.A. v. Marroquin,
339 S.W.3d 68 (Tex. 2011).........................................................................19, 20
iv
Mitchell v. Methodist Hosp.,
376 S.W.3d 833 Tex. App.—Houston [1st Dist.] 2012, pet. denied) ................. 17
Mock v. Presbyterian Hosp. of Plano,
379 S.W.3d 391 (Tex. App.—Dallas 2012, pet. denied)................................... 18
Molinet v. Kimbrell,
356 S.W.3d 407 (Tex. 2011) ............................................................................ 21
Nicholson v. Shinn,
No. 01-07-00973-CV, 2009 WL 3152111
(Tex. App.—Houston [1st Dist.], Oct. 1, 2009, no pet.) ................................... 18
Rabatin v. Kidd,
281 S.W.3d 558 (Tex. App.—El Paso 2008, no pet.) ....................................... 18
Statutes Page(s)
TEX. CIV. PRAC. & REM. CODE § 51.014(d) (Vernon 2011).................................... 3
TEX. CIV. PRAC. & REM. CODE § 51.014(f) (Vernon 2011)................................3, 14
TEX. CIV. PRAC. & REM. CODE § 74.002 .............................................................. 21
TEX. CIV. PRAC. & REM. CODE § 74.051(a) .......................................................... 16
TEX. CIV. PRAC. & REM. CODE § 74.051(c) .......................................................7, 16
TEX. CIV. PRAC. & REM. CODE § 74.251(a) .....................................................16, 20
TEX. CIV. PRAC. & REM. CODE § 74.251(c) .......................................................... 16
Rules Page(s)
TEX. R. APP. P. 28.3(k)........................................................................................... 2
v
TABLE OF ABBREVIATIONS
Dr. Botla uses the following abbreviations for the pleadings and other
documents from the underlying suit, which are included in the Appendix to this
Petition:
Botla MSJ – Ravi Botla, M.D.’s Motion for Summary Judgment and for
Severance
DSLB – Defendant Dr. Botla’s supplemental letter brief
Opp. – Plaintiff’s Opposition to Defendant Ravi Botla, M.D.’s Motion for
Summary Judgment
Order – Order Denying Motion for Summary Judgment and for Severance of
Defendant Ravi Botla, M.D. and Granting Permission to Appeal
POP – Plaintiff’s Original Petition
P1AOP – Plaintiff’s First Amended Original Petition
P4AOP – Plaintiff’s Fourth Amended Original Petition
PSLB – Plaintiff’s supplemental letter brief
Reply – Ravi Botla, M.D.’s Reply to Plaintiff’s Opposition to Motion for
Summary Judgment
TC letter ruling – October 10, 2014 letter ruling from Judge Sakai
vi
NO.
IN THE FOURTH COURT OF APPEALS
AT SAN ANTONIO, TEXAS
RAVI BOTLA, M.D.,
Appellant,
v.
SALVADOR DEL TORO, JR.,
Appellee.
On Appeal from the 131st District Court
Bexar County, Texas, Cause No. 2013-CI-19135
(Hon. Peter Sakai)
APPELLANT’S PETITION FOR PERMISSION TO APPEAL ORDER
DENYING MOTION FOR SUMMARY JUDGMENT
Appellant Ravi Botla, M.D. petitions this Court, pursuant to sections
51.014(d) and (f) of the Texas Civil Practice & Remedies Code and rule 28.3 of the
Texas Rules of Civil Procedure, for permission to appeal the trial court’s Order
denying Appellant’s motion for summary judgment. In support of his Petition, Dr.
Botla respectfully alleges as follows:
I. COMPLIANCE WITH RULE 28.3(e)(1) OF THE
TEXAS RULES OF APPELLATE PROCEDURE
Dr. Botla provides the following information required by rule 28.3(e)(1) of
the Texas Rules of Appellate Procedure:
1
1. The trial court, case number, and style:
Salvador Del Toro, Jr., Plaintiff, v. Gerardo E. Carcamo, M.D. and
Ravi Botla, M.D., Defendants, Cause No. 2013-CI-19135, in the 131st
District Court of Bexar County, Texas (the Hon. Peter Sakai,
presiding).
2. The order being appealed:
The January 22, 2015 Order Denying Motion for Summary Judgment
and for Severance of Defendant Ravi Botla, M.D., and Granting
Permission to Appeal (the “Order”). (Apx. Tab A).
3. Who desires to appeal:
Appellant Ravi Botla, M.D. files this Petition and desires to appeal the
Order.
4. The court to which the appeal is taken:
The Court of Appeals for the Fourth District of Texas at San Antonio,
Texas.
5. Whether appeal is accelerated:
If this Petition is granted, the appeal will be governed by the rules for
accelerated appeals. TEX. R. APP. P. 28.3(k).
II. STATEMENT OF THE CASE
On November 20, 2013, Salvador Del Toro, Jr. (“Plaintiff”) filed this health
care liability claim against Gerardo E. Carcamo, M.D. (POP at 1). On March 3,
2014, Plaintiff amended his petition to add Dr. Botla as a Defendant, alleging Dr.
Botla was negligent in his care and treatment of him on or about December 17,
2011. (P1AOP at 2).
2
On August 4, 2014, Dr. Botla filed his Motion for Summary Judgment and
for Severance, on the ground that the statute of limitations bars Plaintiff’s claim
against him. (Botla MSJ at 1-13). Plaintiff responded, and Dr. Botla replied. The
trial court, the Hon. Peter Sakai, conducted a hearing on Dr. Botla’s motion on
September 16, 2014, and he invited the parties to submit additional arguments
supportive of their respective positions. Both parties filed supplemental letter
briefs.
In correspondence dated October 10, 2014, the trial court advised the parties
of its rulings (denying Dr. Botla’s motion and granting Dr. Botla’s request to
permit an immediate appeal from the trial court’s Order) and requested preparation
of an appropriate order. (TC letter). On January 22, 2015, the trial court signed
the Order that is the subject of this Petition seeking permissive appeal. (Apx. Tab
A at 1-4).
III. STATEMENT OF JURISDICTION
This Court has jurisdiction over this Petition, pursuant to sections 51.014(d)
and 51.014(f) of the Texas Civil Practice and Remedies Code. TEX. CIV. PRAC. &
REM. CODE § 51.014(d), (f) (Vernon 2011). The trial court signed the Order
permitting interlocutory appeal on the basis that: (1) the order involves controlling
questions of law as to which there are substantial grounds for differences of
3
opinion; and (2) an immediate appeal from the order may materially advance the
ultimate termination of the litigation. (Apx. Tab A).
IV. ISSUES PRESENTED
The trial court’s Order denying Dr. Botla’s motion for summary judgment
involves controlling questions of law as to which there substantial grounds for
differences of opinion, including: (a) whether Plaintiff’s medical authorization
provided to a co-defendant was sufficient to toll limitations as to Dr. Botla (i.e.,
whether it had to precisely track the language of section 74.052(c) or whether
substantial compliance was sufficient), or whether Plaintiff’s claim against Dr.
Botla is barred by limitations; and (b) if the medical authorization was sufficient,
whether the statute of limitations still bars Plaintiff’s claim against Dr. Botla
because the limitations period ended on a Sunday, and no statute or rule may trump
the absolute Chapter 74 limitations period to extend it to a Monday.
These legal issues justify an immediate appeal of the trial court’s Order
under section 51.014(d) of the Civil Practice and Remedies Code, and resolution of
these issues could materially advance the resolution of this health care liability
claim as to Dr. Botla. That is, if Dr. Botla is correct and the statute of limitations
bars Plaintiff’s claim, the claim against Dr. Botla will be dismissed with prejudice.
The trial court identified these controlling issues of law in its Order:
4
1. Was Plaintiff’s medical authorization attached to his Chapter 74
notice letter sufficient to toll the statute of limitations, pursuant to
section 74.051(c) of the Texas Civil Practice & Remedies Code?
2. Does a defendant health care provider or physician, who did not
receive a notice letter and authorization under section 74.051(a) of the
Texas Civil Practice & Remedies Code, have standing to complain
that an authorization provided to another health care provider or
physician named and sued as a defendant in the same lawsuit is
insufficient to toll the statute of limitations pursuant to section
74.051(c)?
3. In light of the “notwithstanding any other law” language of
section 74.251 of the Texas Civil Practice & Remedies Code.251 and
the conflict provision of section 74.002, do rule 4 of the Texas Rules
of Civil Procedure and section 16.072 of the Texas Civil Practice &
Remedies Code nonetheless operate to extend the statute of
limitations in a Chapter 74 health care liability claim when the last
day of the applicable limitations period falls on a weekend or legal
holiday?
5
V. STATEMENT OF FACTS
A. Plaintiff Alleges Negligence by Defendants
Plaintiff timely filed his Original Petition against Dr. Carcamo only. (See
POP at 1). In that Original Petition, Plaintiff asserted a health care liability claim
against Dr. Carcamo based on alleged negligence in diagnosing and treating his
abdominal pain and recurrent diverticulitis, as well as alleged negligence that
allegedly caused a bowel perforation that necessitated multiple surgeries. (POP at
2-4).
Dr. Botla provided a consultation to Dr. Carcamo on the morning of
December 17, 2011. (P1AOP at 2). After evaluating Plaintiff, Dr. Botla
recommended a colonoscopy and ordered a colon prep for that procedure. (Id.).
That evening, Plaintiff complained of continued abdominal pain, and a repeat CT
scan showed a bowel perforation. (Id. at 3). Dr. Carcamo performed surgery on
Plaintiff on December 18, 2011 and again on December 21, 2011. (Id.). Plaintiff’s
lawsuit against Dr. Botla asserts negligence related to Dr. Botla’s December 17,
2011 recommendation for a colonoscopy and order for the colon prep, on the
theory that the colon prep contributed to the bowel perforation. (See P1AOP at 4-
5; P4AOP at 3, 5).
6
B. Plaintiff Provides a Chapter 74 Notice Letter But Attaches a
Deficient Medical Authorization
Prior to filing suit, and within the two-year statute of limitations provided by
section 74.251 of the Texas Civil Practice & Remedies Code, Plaintiff sent to Dr.
Carcamo (1) a notice letter dated June 11, 2013, pursuant to section 74.051(a), and
(2) a purported medical authorization, pursuant to section 74.052. (Ex. A to POP;
Apx. Tab B). Plaintiff did not send Dr. Botla a notice letter or a medical
authorization at any time.1
The medical authorization sent to Dr. Carcamo, however, was defective
because it did not track the language of section 74.052(c), it authorized the release
of Plaintiff’s medical records only to his own attorneys, and it did not identify all
the patient’s physicians and health care providers for the previous five years.
(Apx. Tab B). The original medical authorization stated:
I, Salvador Del Toro, Jr. (name of patient or authorized
representative), hereby authorize Gerardo E. Carcamo, M.D. (name of
physician or other health care provider to whom the notice of health
care claim is directed) to obtain and disclose (within the parameters
set out below) to Mauzé Law Firm the protected health information
described below.
(Apx. Tab B). Also, the authorization did not list Dr. Botla as a physician who
examined, evaluated, or treated Plaintiff in the five years prior to the incident made
1
In his first amended and later petitions, Plaintiff alleged that the “statute of limitations
prohibited the providing of written notice of said claim to Defendant Botla.” (P1AOP at 6).
TEX. CIV. PRAC. & REM. CODE § 74.051(c) (Notice given as provided in chapter tolls limitations
and tolling shall apply to all parties and potential parties).
7
the basis of his claim and did not authorize Dr. Botla to obtain Plaintiff’s medical
records. (Id.).
In his answer to Plaintiff’s original petition, filed the day before the statute
of limitations expired, Dr. Carcamo pleaded for abatement of the lawsuit because
of the defective medical authorization. (Ex. G to Botla MSJ). Although Plaintiff
later provided Dr. Carcamo with revised medical authorizations,2 Plaintiff provided
those to Dr. Carcamo after December 17, 2013, the date on which the two-year
statute of limitations expired (on January 8, 2014 and January 23, 2014). (Ex. 5, 6
to Opp.).
C. Plaintiff Files His Health Care Liability Claim
Plaintiff timely filed his health care liability claim against Dr. Carcamo on
November 20, 2013. (POP at 1). Plaintiff did not sue Dr. Botla within two years
of Dr. Botla’s care and treatment of Plaintiff – he did not sue Dr. Botla until March
3, 2014. (P1AOP at 1).
D. Dr. Botla Moves for Summary Judgment on Limitations
Dr. Botla filed a traditional motion for summary judgment on his affirmative
defense of limitations. (Botla MSJ at 1-13). Dr. Botla asserted that the defective
medical authorization provided to Dr. Carcamo did not trigger the 75-day tolling
period in section 74.051(c) and that, as a result, Plaintiff had to have sued Dr. Botla
2
Dr. Botla does not concede that these authorizations were sufficient.
8
before December 17, 2013 to be within limitations. (Id. at 1-2). Dr. Botla argued
alternatively that, if the trial court found the original medical authorization
sufficient, the extended limitations period (two years and 75 days) expired on
March 2, 2014, and, because Plaintiff did not sue Dr. Botla until March 3, 2014,
limitations barred his lawsuit. (Id. at 2).
Plaintiff filed his Opposition to Defendant Ravi Botla, M.D.’s Motion for
Summary Judgment, arguing a different accrual date applied to Plaintiff’s claim
against Dr. Botla (December 18, 2011), that he provided timely notice to Dr.
Carcamo within the two-year period, and that the original medical authorization
substantially complied with section 74.052 and was sufficient to trigger the 75-day
tolling provision of section 74.051(c). (Opp. at 1-6). Plaintiff also argued that, if
limitations did expire on Sunday, March 2, 2014, rule 4 of the Texas Rules of Civil
Procedure and section 16.072 of the Texas Civil Practice & Remedies Code
extended his deadline to file suit against Dr. Botla until Monday, March, 3, 2014.
(Id. at 6-7).
E. Trial Court Conducts Hearing on Dr. Botla’s Motion
The trial court, the Hon. Peter Sakai, conducted a hearing on Dr. Botla’s
motion on September 16, 2014, and he invited the parties to submit additional
arguments supportive of their respective positions. Both Plaintiff and Dr. Botla
9
filed supplemental letter briefs, on September 29, 2014 and October 1, 2014,
respectively.
On October 10, 2014, the trial court advised the parties of its rulings via
letter (i.e., denying Dr. Botla’s motion and granting Dr. Botla’s request to permit
an immediate appeal from the trial court’s Order) and requested preparation of an
appropriate order. (TC letter ruling). On January 22, 2015, the trial court signed
its Order Denying Motion for Summary Judgment and for Severance of Defendant
Ravi Botla, M.D. and Granting Permission to Appeal. (Apx. Tab A). The trial
court found “three controlling questions of law as to which there is a substantial
ground for difference of opinion” (see Issues Presented, supra), and the trial court
made the following substantive rulings on these legal issues in the Order:
1. The original medical authorization was sufficient to trigger the 75-
day tolling provision in section 74.051(c), despite its wording
authorizing disclosure only to Plaintiff’s counsel’s law firm and its
failure to identify all of Plaintiff’s health care providers for the prior
five years;
2. Dr. Botla had standing to challenge the defective medical
authorization provided to Dr. Carcamo3 and to assert it was
insufficient to trigger the limitations tolling provision; and
3. Dr. Botla provided care on both December 17 and 18, 2011, such
that to the extent Plaintiff establishes any negligent act or omission on
December 18, 2011 or thereafter, Plaintiff timely filed his petition
against Dr. Botla on March 3, 2014. Alternatively, to the extent that
3
Dr. Botla agrees with this ruling and will not challenge it if this Court grants permission
for him to appeal.
10
December 17, 2011 triggers the applicable limitations period, tolling
extended that period to March 2, 2014 and rule 4 of the Texas Rules
of Civil Procedure and section 16.072 of the Texas Civil Practice &
Remedies Code applied to extend limitations through Monday, March
3, 2014, irrespective of section 74.002 and the “notwithstanding any
other law” language of section 74.251, and Plaintiff’s petition against
Dr. Botla was timely filed.
(Apx. Tab A at 1-3). In addition, the trial court found that an immediate appeal of
the Order may materially advance the ultimate termination of the litigation
because: (1) if the Order is reversed on grounds that the medical authorization did
not trigger the 75-day tolling provision, Plaintiff’s claim against Dr. Botla would
be barred by limitations and dismissed with prejudice; and (2) even if the medical
authorization did trigger the 75-day tolling provision, Plaintiff’s claim may be
barred by limitations if rule 4 and section 16.072 do not extend limitations from
Sunday, March 2, 2014 to Monday, March 3, 2014. (Id. at 3). And, the trial court
granted permission to Dr. Botla to pursue an interlocutory appeal of the Order,
pursuant to section 51.014(d) of the Texas Civil Practice & Remedies Code. (Id.).
VI. SUMMARY OF THE ARGUMENT
This Court should accept Dr. Botla’s appeal. The trial court’s Order
presents two controlling issues of law on which there are substantial grounds for
differences of opinion. The first arises out of Dr. Botla’s challenge to Plaintiff’s
section 74.052(c) medical authorization, and the dispute is whether it had to track
the precise language and requirements of the statute (as multiple appellate courts
11
recognize), or whether mere “substantial compliance” with the statutory requisites
is sufficient (as fewer appellate courts have concluded) to constitute proper notice
that triggers the 75-day tolling provision in section 74.051(c). The trial court ruled
that Plaintiff’s authorization, which did not track the language of and otherwise
comply with section 74.052(c), was nonetheless sufficient to trigger the tolling
provision. Resolution of this issue is material (if not critical) in this case because,
if Dr. Botla is correct, the defective medical authorization did not trigger the 75-
day tolling provision, limitations expired in December 2013, and Plaintiff’s claim
filed against Dr. Botla in March 2014 is time-barred.
The second issue assumes, for argument’s sake, that Plaintiff’s medical
authorization was sufficient to trigger the 75-day tolling provision of section
74.051(c), thereby giving Plaintiff an additional 75 days to sue Dr. Botla. Dr.
Botla asserts Plaintiff’s claim accrued on December 17, 2011, the date of the
alleged tort (recommending a colonoscopy and colon prep for a patient with a
gastrointestinal obstruction), such that (a) Plaintiff had to commence his claim by
March 2, 2014 (two years and 75 days later) to be timely; and (b) Plaintiff’s claim
filed on March 3, 2014 is barred by limitations because no other law, statute, or
rule can apply in a health care liability claim to extend the absolute limitations
deadline contained in section 74.251. Plaintiff argued Dr. Botla was negligent on
December 17 and 18, 2011, such that his claim accrued on the last day of
12
treatment, at least by December 18, 2011, and he timely filed his claim on March
3, 2014.
The trial court ruled that, if Plaintiff establishes a negligent act or omission
by Dr. Botla on December 18, 2011 or thereafter, his claim against Dr. Botla filed
on March 3, 2014 is timely; alternatively, the court ruled, if Plaintiff’s claim
accrued on December 17, 2011, rule 4 of the Texas Rules of Civil Procedure and
section 16.072 of the Texas Civil Practice & Remedies Code applied to extend the
limitations deadline from Sunday, March 2, 2014 to Monday, March 3, 2014 and,
thus, Plaintiff timely sued Dr. Botla. This legal issue involving statutory
interpretation is a matter of first impression under Texas law and, thus, should be
considered a controlling question of law on which there is substantial ground for
difference of opinion. Resolution of this issue also is material (if not critical) in
this case because, if Dr. Botla is correct, Plaintiff’s claim against him is barred by
limitations.
The trial court’s Order presents issues that meet the statutory criteria for a
permissive appeal. This Court should accept this appeal so that the litigants and
the courts do not expend time, energy, and resources in proceeding through a trial,
only to have a judgment subsequently reversed on appeal because limitations
barred Plaintiff’s claim against Dr. Botla.
13
VII. ARGUMENT
A. Standards for Permissive Interlocutory Appeals
Generally, an order denying a summary judgment motion is not appealable
because it is an interlocutory order. E.g., Gulley v. State Farm Lloyds, 350 S.W.3d
204, 206 (Tex. App.—San Antonio 2011, no pet.). An interlocutory order that
does not dispose of all issues against all parties is not immediately appealable,
except in situations expressly authorized by statute. Id.
Section 51.014 of the Civil Practice and Remedies Code designates the civil
orders that may be appealed on an interlocutory basis, and subsection (d) of section
51.014 permits an interlocutory appeal of an otherwise non-appealable order, such
as denial of a summary judgment motion:
(d) On a party's motion or on its own initiative, a trial court in a civil
action may, by written order, permit an appeal from an order that is
not otherwise appealable if:
(1) the order to be appealed involves a controlling question of law as
to which there is a substantial ground for difference of opinion; and
(2) an immediate appeal from the order may materially advance the
ultimate termination of the litigation.
TEX. CIV. PRAC. & REM. CODE § 51.014(d). Upon the trial court’s certification that
its order meets these statutory requirements, the court of appeals may accept an
appeal permitted by section 51.014(d). See TEX. CIV. PRAC. & REM. CODE §
51.014(f).
14
Texas courts have recognized that, when the legal issue addresses the statute
of limitations, that issue presents a controlling question of law. See, e.g., Gale v.
Lucio, 445 S.W.3d 849, 853 (Tex. App.—Houston [1st Dist.] 2014, pet. filed); see
also BNSF Ry. Co. v. Acosta, No. 08-13-00268-CV, 2014 WL 5794620, at *2
(Tex. App.—El Paso, Nov. 7, 2014, no. pet.). Likewise, Texas courts have
recognized that a substantial ground for difference of opinion may occur if the
issue is one of first impression (i.e., appellate courts have not addressed the issue
previously). See, e.g., Belehu v. Lawniczak, 437 S.W.3d 913, 915 (Tex. App.—
Houston [14th Dist.] 2014, pet. filed) (issue of first impression involving statutory
interpretation); Certain Underwriters at Lloyd’s of London Subscribing to Policy
Number: £FINFR0901509 v. Cardtronics, Inc., 438 S.W.3d 770, 774, 778 (Tex.
App.—Houston [1st Dist.] 2014, no pet.) (no other court had construed insurance
policy language at issue). Accordingly, as explained more fully below, the issues
Dr. Botla desires to have reviewed by this Court meet the criteria for a permissive
appeal under section 51.014(d) of the Texas Civil Practice & Remedies Code, and
Dr. Botla urges the Court to grant him permission to appeal from the interlocutory
Order.
15
B. Controlling Question of Law No.1: Whether Plaintiff’s Original
Medical Authorization was Legally Sufficient to Trigger the 75-
Day Tolling Provision in Section 74.251(c)
A Chapter 74 claimant may extend the absolute two-year statute of
limitations by 75 days by complying with the statute’s pre-suit notice provisions:
(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.
****
(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(a), (c). To toll the statute of limitations
pursuant to Chapter 74, a plaintiff must provide both the statutorily required notice
and the statutorily required authorization form. Jose Carreras, M.D., P.A. v.
Marroquin, 339 S.W.3d 68, 74 (Tex. 2011). Together, the notice and medical
authorization form encourage pre-suit investigation, negotiation, and settlement of
health care liability claims. See id. at 73. If the authorization does not accompany
the notice, the claimant may not receive the benefit of the notice – tolling. Id. at
72.
16
Here, Plaintiff provided a form of a medical authorization to Dr. Carcamo,
but not in the form required by section 74.052(c). Dr. Botla argued that Plaintiff’s
medical authorization did not follow the precise language in section 74.052 and
only authorized Dr. Carcamo to obtain and disclose Plaintiff’s protected health
information (“PHI”) to Mauze Law Firm (Plaintiff’s counsel). (Apx. Tab B at 1).
It did not allow Dr. Carcamo to obtain Plaintiff’s PHI to investigate and evaluate
Plaintiff’s health care liability claim, and it did not list all of Plaintiff’s medical
providers for five years prior to the incident (including Dr. Botla). (See id.; Botla
MSJ at 9-10).
Dr. Botla argued that Texas courts require the medical authorization to track
the precise text included in section 74.052(c), and that an authorization that permits
the release of a patient’s medical records only to the patient’s attorney is defective
and does not trigger the tolling provision. (Botla MSJ at 8-9). E.g., Cantu v.
Mission Reg. Med. Ctr., No. 13-12-00568-CV, 2014 WL 1879292, *4 (Tex. App.–
Corpus Christi, May 8, 2014, no pet.) (mem. op.); see also Brannan v. Toland, No.
01-13-00051-CV, 2013 WL 4004472, at *2-3 (Tex. App.—Houston [1st Dist.],
Aug. 6, 2013, pet. denied) (mem. op.). Dr. Botla also argued that the statute and
Texas courts require the authorization to list the patient’s physicians and health
care providers for the previous five years, or it does not satisfy the purposes of the
statute. (Botla MSJ at 8-9, 10). E.g., Mitchell v. Methodist Hosp., 376 S.W.3d
17
833, 837 (Tex. App.—Houston [1st Dist.] 2012, pet. denied); Nicholson v. Shinn,
No. 01-07-00973-CV, 2009 WL 3152111, at *5-6 (Tex. App.—Houston [1st Dist.],
Oct. 1, 2009, no pet.) (mem. op.).
Plaintiff, on the other hand, argued that his medical authorization
substantially complied with section 74.052 and was sufficient to trigger the 75-day
tolling period because it fulfilled the purposes of the notice statute. (Opp. at 5-6).
E.g., Mock v. Presbyterian Hosp. of Plano, 379 S.W.3d 391, 395 (Tex. App.—
Dallas 2012, pet. denied); Rabatin v. Kidd, 281 S.W.3d 558 (Tex. App.—El Paso
2008, no pet.). Despite making this argument, Plaintiff gave Dr. Carcamo not one,
but two, revised authorizations (although he provided both after the expiration of
the absolute two-year statute of limitations and, thus, they were ineffective to
trigger the tolling provision). (Exs. 5, 6 to Opp.). Plaintiff also argued the
authorization was sufficient because Dr. Carcamo was able to obtain Plaintiff’s
medical records from Nix Hospital using the original medical authorization.
(PSLB at 1).
The trial court essentially agreed with Plaintiff’s arguments and case law,
ruling that Plaintiff’s original medical authorization was sufficient to trigger the
75-day tolling provision in section 74.051(c). (Apx. Tab A at 2). However, as
explained above, the legal issue of whether a medical authorization must
specifically comply with the language and requirements of section 74.052(c), or
18
whether “substantial compliance” with the statutory requirements is sufficient to
trigger the 75-day tolling provision, is a question of Texas law as to which there
are substantial grounds for differences of opinion. Accordingly, Dr. Botla urges
this Court to grant permission to appeal the trial court’s Order so that this Court
can interpret the statute, determine whether strict or substantial compliance is the
test, determine whether Plaintiff’s original medical authorization meets the Court’s
test, and determine whether the medical authorization triggered the 75-day tolling
provision as to Plaintiff’s claim against Dr. Botla.
C. Controlling Question of Law No. 2: Whether Dr. Botla Had
Standing to Challenge the Medical Authorization Provided to
Another Defendant
Plaintiff asserted in the trial court that Dr. Botla did not receive Chapter 74
notice and could not have obtained any medical records of Plaintiff with the
medical authorization provided to Dr. Carcamo; thus, Dr. Botla lacked standing to
argue that the medical authorization provided to Dr. Carcamo is insufficient. (Opp.
at 4). The trial court disagreed with Plaintiff and ruled that a defendant physician
who does not receive a section 74.051(a) notice letter and medical authorization
has standing to complain that an authorization provided to another defendant in the
same lawsuit is insufficient to trigger the 75-day tolling provision. (Apx. Tab A at
2). Dr. Botla agrees with this ruling and does not intend to challenge it if this
Court permits the appeal from the Order.
19
D. Controlling Question of Law No. 3: Whether a Statute or Civil
Procedure Rule Can Trump Chapter 74’s Limitation Provision
and Extend the Limitations Deadline from a Sunday to a Monday
On this third issue, the trial court ruled: (a) that Dr. Botla provided care to
Plaintiff on both December 17, 2011 and December 18, 2011; (b) to the extent
Plaintiff proves any negligent act or omission occurred on December 18, 2011,
Plaintiff timely sued Dr. Botla on March 3, 2014 (two years and 75 days later); (c)
to the extent Plaintiff’s claim accrued on December 17, 2011, limitations expired
on Sunday, March 2, 2014; (d) rule 4 of the Texas Rules of Civil Procedure and
section 16.072 of the Texas Civil Practice & Remedies Code apply in this case and
extended the limitations period through Monday, March 3, 2014, irrespective of
the “notwithstanding any other language” of section 74.251 and the conflict
provision of section 74.002; and (e) Plaintiff timely sued Dr. Botla even if his
claim accrued on December 17, 2011. (Apx. Tab A at 2-3).
Dr. Botla contests the trial court’s statutory interpretation on this issue
(relating to a claim that accrued on December 17, 2011). Section 74.251(a)
provides, in relevant part:
Notwithstanding any other law and subject to Subsection (b),4 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
4
Subsection (b) contains the statute of repose.
20
the claim or the hospitalization for which the claim is made is
completed. . . .
TEX. CIV. PRAC. & REM. CODE § 74.251(a) (emphasis added). In addition, section
74.002 provides that, “In the event of a conflict between this chapter and another
law, including a rule of procedure or evidence or court rule, this chapter controls to
the extent of the conflict.” Id. § 74.002.
The Texas Supreme Court has held that the two-year statute of limitations in
section 74.251(a) (and its predecessor, section 10.01 of article 4590i) is “absolute.”
E.g., Molinet v. Kimbrell, 356 S.W.3d 407, 415 (Tex. 2011); see also Bala v.
Maxwell, 909 S.W.2d 889, 892-93 (Tex. 1995) (per curiam) (By including the
“notwithstanding any other law” language, “the Legislature unequivocally
expressed its intent that, when the time limitations of section 10.01 conflict with
another law, section 10.01 governs.”). The Texas Supreme Court also has held that
the malpractice act’s limitations provision trumps other limitations provisions in
Chapters 16 and 33 of the Texas Civil Practice & Remedies Code that would
operate to extend the time to file a health care liability claim. Molinet, 356 S.W.3d
at 413-44 (section 33.004); Bala, 909 S.W.2d at 892-93 (section 16.003); see also
Hill v. Milani, 686 S.W.2d 610, 611 (Tex. 1985) (sec. 10.01 trumped absence-
from-the-state tolling provision in former art. 5537).
Given this law, Dr. Botla argued that civil procedure rule 4 (which extends
time periods that end on a weekend or legal holiday) and section 16.072 (which
21
extends limitation periods that end on a weekend or legal holiday) conflict with
section 74.251(a); therefore, the limitations provision of Chapter 74 controls,
limitations on Plaintiff’s claim expired on March 2, 2014 (two years and 75 days
after December 17, 20115), and Plaintiff’s claim against Dr. Botla filed on March
3, 2014 was untimely. (Botla MSJ at 10-11; Reply at 8-9; DSLB at 4-5). Plaintiff,
on the other hand, argued that the “notwithstanding any other law” language in the
limitations provision does not foreclose (or trump) rules that are procedural in
nature, citing Chilkewitz v. Hyson, 22 S.W.3d 825 (Tex. 1999) (construing civil
procedure rule 28 regarding suits in assumed name). (Opp. at 6-7). Plaintiff
argued that rule 4 and section 16.072 were procedural in nature and, thus, applied
to extend the limitations deadline to March 3, 2014. (See id.).
This issue presents a controlling question of law as to which there is a
substantial ground for difference of opinion because the parties presented opposing
legal arguments, the issue involves a statute of limitations, and the issue is one of
first impression6 – no Texas court has yet addressed whether rule 4 and section
16.072 apply in health care liability claims to extend the absolute two-year (or two-
year-and-75-day) statute of limitations in section 74.251(a). Accordingly, Dr.
5
Assuming, without conceding, that the medical authorization was sufficient to trigger the
75-day tolling provision.
6
See Belehu, 437 S.W.3d at 915; Gale, 445 S.W.3d at 853; Cardtronics, Inc., 438 S.W.3d
at 774, 778.
22
Botla urges this Court to grant permission to appeal the trial court’s Order so that
this Court can interpret the statute, determine whether section 74.251 trumps rule 4
and section 16.072, and determine whether, if Plaintiff’s claim accrued on
December 17, 2011 and if the medical authorization was sufficient to trigger the
75-day tolling provision, Plaintiff timely sued Dr. Botla within two years and 75
days.
E. Lastly, Immediate Appeal of the Order Will Materially Advance
the Ultimate Termination of the Litigation
Finally, Dr. Botla asserts that immediate appeal of the Order will materially
advance the ultimate termination of the litigation. When the controlling legal
issues address the statute of limitations, those issues are material to the ultimate
resolution or termination of the litigation. Gale, 445 S.W.3d at 853.
Here, if Dr. Botla is correct on the first legal issue (i.e., the medical
authorization was defective and did not trigger the 75-day tolling provision),
Plaintiff’s health care liability claim is barred by the statute of limitations and will
be dismissed with prejudice. Alternatively, if the medical authorization was
sufficient to add 75 days to the absolute two-year limitation period, Plaintiff did
not sue Dr. Botla until two years and 76 days from the date of the tort and, thus, his
claim still would be barred by limitations, unless this Court determines that rule 4
of the Texas Rules of Civil Procedure and section 16.072 of the Texas Civil
Practice & Remedies Code do not conflict with Chapter 74’s absolute statute of
23
limitations and apply to extend the limitations period by one day, from Sunday,
March 2, 2013, to Monday, March 3, 2013.
If this Court does not accept the appeal, but Appellant’s arguments are
ultimately vindicated via a post-trial appeal, the litigants and the courts will have
expended needless time, energy, and resources in a trial of this case. Thus, this
Court should accept the appeal in the interest of judicial economy.
THEREFORE, Appellant Ravi Botla, M.D. respectfully prays this Court
grant his Petition for Permission to Appeal the Order in all respects, and grant him
all such other and further relief as this Court deems just.
24
Respectfully submitted,
COOPER & SCULLY, P.C.
By: /s/Diana L. Faust
DIANA L. FAUST
diana.faust@cooperscully.com
Texas Bar No. 00793717
MICHELLE E. ROBBERSON
michelle.robberson@cooperscully.com
Texas Bar No. 24073089
900 Jackson Street, Suite 100
Dallas, Texas 75202
TEL: (214) 712-9500
FAX: (214) 712-9540
EVANS, ROWE & HOLBROOK, P.C.
BRETT B. ROWE
bbrowe@evans-rowe.com
Texas Bar No. 17331750
NICKI K. ELGIE
nelgie@evans-rowe.com
Texas Bar No. 24069670
10101 Reunion Place, Suite 900
San Antonio, Texas 78216
TEL: (210) 340-6555
FAX: (210) 340-6664
ATTORNEYS FOR APPELLANT
25
CERTIFICATE OF COMPLIANCE
I hereby certify that we prepared this Petition using Microsoft Word 2003,
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 4,456 words.
/s/ Diana L. Faust
DIANA L. FAUST
CERTIFICATE OF SERVICE
I hereby certify that I served a true and correct copy of this Petition upon the
following counsel of record by the method indicated, on this 6th day of February,
2015:
George W. Mauze, II VIA EFILE
gmauze@mauzelawfirm.com
Mauze Law Firm
2632 B4roadway, Suite 401S
San Antonio, Texas 78215
Counsel for Appellee
/s/Diana L. Faust
DIANA L. FAUST
26
ORAL ARGUMENT REQUESTED
NO.
IN THE FOURTH COURT OF APPEALS
AT SAN ANTONIO, TEXAS
RAVI BOTLA, M.D.,
Appellant,
v.
SALVADOR DEL TORO, JR.,
Appellee.
On Appeal from the 131st District Court
Bexar County, Texas, Cause No. 2013-CI-19135
(Hon. Peter Sakai)
APPENDIX TO APPELLANT’S PETITION FOR PERMISSION TO
APPEAL ORDER DENYING MOTION FOR SUMMARY JUDGMENT
In compliance with rule 28.3 of the Texas Rules of Appellate Procedure,
Appellant Ravi Botla, M.D. submits this Appendix to his Petition for Permission to
Appeal Order Denying Motion for Summary Judgment, containing the following
items:
Tab A: January 22, 2015 Order Denying Motion for Summary
Judgment and for Severance of Defendant Ravi Botla, M.D.
and Granting Permission to Appeal
Tab B: Plaintiff’s June 11, 2013 notice letter to Dr. Carcamo and his
June 7, 2013 Medical Authorization
27
Tab C: November 20, 2013 Plaintiff’s Original Petition
Tab D: March 3, 2014 Plaintiff’s First Amended Original Petition
Tab E: December 31, 2014 Plaintiff’s Fourth Amended Original
Petition
Tab F: August 14, 2014 Motion for Summary Judgment and for
Severance of Defendant, Ravi Botla, M.D. (with exhibits)
Tab G: September 4, 2014 Plaintiff’s Opposition to Defendant Ravi
Botla, M.D.’s Motion for Summary Judgment (with exhibits)
Tab H: September 11, 2014 Reply to Plaintiff’s Opposition to Ravi
Botla, M.D.’s Motion for Summary Judgment
Tab I: September 29, 2014 Supplemental Letter Brief of Plaintiff
Tab J: October 1, 2014 Supplemental Letter Brief of Defendant Ravi
Botla, M.D.
Tab K: October 10, 2014 Letter Ruling by Judge Peter Sakai on
Defendant Ravi Botla, M.D.’s Motion for Summary Judgment
D/920583v7
28
APPENDIX TAB “A”
h4:?1) , TrAPANIPP3 - egtilLED 1-410 P0002/0005 F-835
01-22-' 15 '15:47 FROM- EvaPO •
2013C119135 -0131
CAUSE NO. 2013-CI-19135
„SALVADORDEL-TORO,JR, • • • ----- IN,THE-DISTRICT'COURT'''--- •
VS. 131ST JUDICIAL DISTRICT
GERARDO E. CARCAMO, M.D. AND §
RAVI BOTLA, M.D, BEXAR COUNTY, TEXAS
ORDER DENYING MOTION FOR SUI rA ige
OF "3mLauLik
1 TO APPEAL.
On the 16th day of September, 2014 and 6th day of January, 2015, came on to
be heard the Motion for Summary Judgment and for Severance of Defendant Ravi
Botta, M.D. The Court, having considered the Motion, Plaintiff's Opposition,
Defendant's Reply, letter briefings, pleadings timely filed, the summary judgment
evidence, and argument of counsel, hereby DENIES the Motion for Summary
Judgment and for Severance for the reasons more specifically set forth below.
The Court hereby GRANTS Defendant's motion for permission to appeal this
Order pursuant to Texas Civil Practice and Remedies Code Section 51.014(d), as
to the legal issues and substantive rulings contained herein,
THE COURT FINDS that this Order involves three controlling questions of law as
to which there is a substantial ground for a difference of opinion:
1. Was Plaintiffs medical authorization attached to his Chapter 74 notice letter
sufficient to toll the statute of limitations pursuant to Section 74.051(c) of the
Texas Civil Practice and Remedies Code?
2, Does a defendant health care provider or physician, who did not receive a
notice letter and authorization under section 74,051(a) of the Texas Civil
Practice and Remedies Code, have standing to complain that an authorization
provided to another health care provider or physician named and sued as a
defendant in the same lawsuit is insufficient to toll the statute of limitations
4 pursuant to Section 74.051(c)?
3
2
6
G
$regglunfl413 5€6F41 LED 1-410 PO003/0005 F-835
01-22-' 15 15:47 FROM- EvaPS?
3. In light of the "notwithstanding any other law" language of Texas Civil Practice
and Remedies Code Section 74.251 and the conflict provision of Section
74,002,does Rule_4_ of .the Texas Rules of Civil Procedure and Texas-Civil
Practice and Remedies Code Section 16.072 nonetheless operate to extend
the statute of limitations in a Chapter 74 health care liability claim when the
last day of the applicable limitations period falls on a weekend or legal
holiday?
In denying Defendant Ravi Botla, M,D.'s Motion for Summary Judgment through
this Order, the Court makes the following substantive rulings on the above-stated legal
questions presented:
1. Plaintiff's medical authorization attached to his Chapter 74 notice letter was
sufficient to loll the statute of limitations pursuant to Section 74.051(c) of the
Texas Civil Practice and Remedies Code, The language in Section A of the
Authorization providing that Dr. Gerardo E. Carcamo, M.D. could "obtain and
disclose (within the parameters set out below) to Mauze Law Firm" did not render
the authorization insufficient to toll the statute of limitations as to Defendant Ravi
Botla, M.D, because Defendant Gerardo E. Carcamo, M.D. requested and
obtained medical records with said authorization. Likewise, Plaintiff's failure in
Section B.2 of the Authorization to identify some of the physicians or health care
providers who examined, evaluated, or treated Plaintiff or a pharmacy which filled
prescriptions during a period commencing the five years prior to the incident
making the basis of Plaintiff's claim (The People's Clinic, which performed an
employment physical; Seton Medical Center; HEB Pharmacy) did not render the
authorization insufficient to toll the statute of limitations.
2. A defendant health care provider or physician who does not receive a Section
74.051(a) notice letter and medical authorization does have standing to complain
that an authorization provided to another health care provider or physician
named and sued in the same lawsuit is insufficient to toll the statute of limitations
as to the challenging defendant health care provider or physician.
3. Defendant Ravi Botla, M.D. provided care on both. December 17th and 18th,
2011. To the extent that Plaintiff establishes any negligent act or omission on
December 18, 2011, or thereafter, the petition was flied timely on March 3, 2014,
However, to the extent that December 17, 2011 triggers the applicable limitations
period, Section 74,051(c) operates to toll that period through Sunday, March 2,
2014. Rule 4 of the Texas Rules of Civil Procedure and Section 16.072 of the
Civil Practice and Remedies Code apply and their operation extends the
applicable statute of limitations period through Monday, March 3, 2014,
irrespective of the "notwithstanding any other law" language of Section 74.251
and the conflict provision of Section 74.002 of the Texas Civil Practice and
2
01-222 15 15:47 FROM- Eva9 roiSPANIAD3tilWegli LED 1-410 P0004/0005 F-835
Remedies Code, Thus, Plaintiff's petition naming Ravi Botla, M.D. as a
defendant was timely filed.
THE COURT FURTHER FINDS that an immediate appeal of this Order may
materially advance the ultimate termination of the litigation because if this Order is
reversed (1) Plaintiff's claim against Defendant Ravi Botla, M.D. will be barred by the
statute of limitations and therefore dismissed with prejudice if Plaintiffs medical
authorization failed to toll the applicable limitations period; and (2) even assuming the
medical authorization was sufficient to trigger tolling of limitations pursuant to section
74.051(c) of the Texas Civil Practice and Remedies Code, Plaintiff's claim against
Defendant Ravi Botla, M.D. may be barred by the statute of limitations If Section
74,251's period of limitations shall not be extended by operation of Rule 4 of the Texas
Rules of Civil Procedure and Section 16.072 of the Texas Civil Practice and Remedies
Code,
IT IS FURTHER ORDERED that Defendant Ravi Botta, M.D. is granted
permission to pursue an interlocutory appeal of this Order pursuant to Texas Civil
Practice and Remedies Code Section 51,014(d).
0
IT IS SO ORDERED.
Signed this date:
V
0 APPROVED AS TO FORM ONLY:
MAUZE LAW FIRM
2632 Broadway, Suite 401S
San Antonio, Texas 78215
3
rolgIMITP3 6litfi LED 1-410 P0005/0005 F-835
01-22-'15 15:47 FROM- EvaPP
Phone: (210) 225-6262
Fax: (210) 354-3909
Email uze •► mauz-ta rm.c
ORGE W. M IZE, II
State Bar No, 3238800
ATTORNEY FOR PLAINTIFF
EVANS, ROWE & HOLBROOK, P.C.
10101 Reunion Place, Suite 900
San Antonio, Texas 78216
Phone: (210) 340-6555
Fax: (210) 340-6664
Email: bbroweA§L.Lats-row com
Email: netoleaevati$-rowe.com.
By:
BRETT B. RSWE
State Bar No. 17331750
NICK! K. ELGIE
State Bar No. 24069670
ATTORNEYS FOR DEFENDANT RAVI BOTLA, M.D.
4
APPENDIX TAB “B”
AUZ LAW F
GEORGE W. MAUZE, II, ATTORNEY 2632 BROADWAY
SUITE 401 South
SAN ANTONIO, TEXAS 78215
TELEPHONE 210.225.6262
FACSIMILE'210.354,3909
EMAIL: gmauze@mauzelowfIrm.com
WWW.MAUZELAWFIRM.COM
June 11, 2013
PERSONAL L CONFIDENTIAL CMR]RR #7012-3050-0002-3901-1372
Gerardo E. Carcamo, M.D.
414 Navarro, Suite 810
San Antonio, TX 78205
Re: Salvador Del Toro, Jr.
Dear Dr. Carcamo:
Please be advised that our law firm has been retained by Salvador Del Toro, Jr. to
represent him in any and all claims he may have against you arising from the facts stated herein.
On or about December 15, 2011, Mr. Del Toro was admitted to Nix Hospital after being
evaluated by Dr. James Lackey with the Riverwalk Clinic for increased lower abdominal pain,
nausea, and vomiting. After a CT scan obtained by the Riverwalk Clinic showed findings of ".
. a severely diseased sigmoid colon with underlying diverticular burden and a stricture," he was
referred to Nix Hospital where he was further evaluated and assessed by Bridget K. Fiechtner,
M.D. Based on Dr. Fiechtner's assessment and CT scan findings, Mr. Del Toro was admitted for
further treatment and evaluation and discussed the patient's case with you. On December 16,
2011 Mr. Del Toro was seen in consultation by you. On the evening of December 17, 2011, you
ordered and Mr. Del Toro was given GoLYTELY for gastrointestinal prep prior to colonoscopy.
Shortly thereafter, he began having worsening abdominal pain throughout the evening with
vomiting. On December 18, 2011 at approximately 5:00 o'clock a.m., Mr. Del Toro had
worsening and change in the quality of his pain. He was sent emergently for a CT of the
abdomen and pelvis which revealed the presence of free air consistent with perforation of a
hollow viscus. You were called and Mr. Del Toro was emergently taken to the operating room
on December 18, 2011. Due to the perforation of his colon, you immediately performed a right
hemicolectomy, sigmoidectomy, and end-colostomy with Hartmann pouch and wound VAC
placement. On December 21, 2011, Mr. Del Toro underwent another surgery by you for
washout and wound VAC change. Mr. Del Toro remained hospitalized until December 30,
2011. Since then, Mr. Del Toro has necessitated frequent medical attention, necessitated and
undergone two additional corrective surgeries.
The complications associated from the perforation of his colon which you "expected",
have caused him severe pain and mental anguish, severe discomfort, disfigurement, and financial
hardship. Although, you clearly knew of his partial obstruction in his colon based on the CT
findings, you ordered GoLYTELY which is contraindicated in a patient suspected of having
gastrointestinal obstruction. You further state in your December 18, 2011, operative report, that
"Unfortunately he was unable to have a bm 'as expected' and he perforated.".
F,
c, EXHIBITii....
[ i's : . :
241623117621
.71..1-2,-.7.1...,,,.....1......,...- -'
Dr. Carcamo
June 11, 2013
Page 2
The foregoing acts and omissions to act constitute negligence. As a result of such
negligence, Mr. Del Toro has suffered severe medical complications associated with his
perforated colon.
In accordance with Chapter 74.051(a) of the Texas Civil Practices & Remedies Code, this
letter constitutes your sixty (60) days notice that Salvador Del Toro, Jr. intends to assert health
care liability claims against you. If this matter is not resolved within sixty (60) days, then a
lawsuit will be filed.
In an effort to settle this claim without the necessity of filing a lawsuit, my client hereby
tenders an offer of settlement to you in the amount of Eight Hundred Thousand Dollars
($800,000.00), such consisting of $250,000.00 for noneconomic damages plus economic
damages including loss of income, and health care expenses in the amount of $550,000.00.
Attached hereto is a release for medical records in accordance with §74.052 of the Texas
Civil Practice & Remedies Code, Additionally, please accept this letter as our request for copies
of any and all medical records, diagnostic studies, whether digital, or film. Enclosed herewith is
a HIPAA release authorizing you to provide true, correct, and complete copies of same.
The standard professional liability insurance policy requires that the insured promptly
give the insurance carrier notice of any claim. If you or your insurance carrier wish to discuss an
amicable and expedient resolution of this claim, then please do not hesitate to give me a call.
Very truly yours,
George W. Mau4'
GWM/ag
enclosures
xc: Mr. Salvador Del Toro, Jr.
AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION
PURSU NT TO TEX. CIV. PRAC. & REM. CODE, CHAPTER 74 § 74.052
A. I, Salvador Del Toro, Jr. (name of patient or authorized representative), hereby
authorize Gerardo E. Carcamo, M.D. (name of physician or other health care provider to
whom the notice of health care claim is directed) to obtain and disclose (within the
parameters set out below) to Mauze Law Firm the protected health information
described below for the following specific purposes:
1 To facilitate the investigation and evaluation of the health care claim described in
the accompanying Notice of Health Care Claim; or
2. Defense of any litigation arising out of the claim made the basis of the
accompanying Notice of Health Care Claim.
The health information to be obtained, used, or disclosed extends to and includes the
verbal as well as the written and is specifically described as follows:
1. The health information in the custody of the following physicians or health care
providers who have examined, evaluated, or treated Salvador Del Toro, Jr.
(patient) in connection with the injuries alleged to have been sustained in
connection with the claim asserted in the accompanying Notice of Health Care
Claim:
Nix Hospital, 414 Navarro, San Antonio, TX 78205
Gerardo E. Carcamo, M.D., 414 Navarro, Suite 830, San Antonio, TX 78205
This authorization shall extend to any additional physicians or health care
providers that may in the future evaluate, examine, or treat Salvador Del Toro, Jr.
(patient) for injuries alleged in connection with the claim made the basis of the
attached Notice of Health Care Claim; and
2. The health information in the custody of the following physicians or health care
providers who have examined, evaluated, or treated Salvador Del Toro, Jr.
(patient) during a period commencing five years prior to the incident made the
basis of the accompanying Notice of Health, Care Claim:
Riverwalk Clinic, 414 Navarro, Suite 809, San Antonio, TX 78205
Val Verde Regional Medical Center, 801 Bedell Avenue, Del Rio, TX 78840
Antonio Cadena, M.D., 2201 North Bedell, Suite A, Del Rio, TX 78840
C. Excluded Health Information—the following constitutes a list of physicians or health care
providers possessing health care information concerning Salvador Del Toro, Jr. (patient)
to which this authorization does not apply because I contend that such health care
information is not relevant to the damages being claimed or to the physical, mental, or
emotional condition of Salvador Del Toro, Jr. (patient) arising out of the claim made the
basis of the accompanying Notice of Health Care Claim: NONE.
D. The persons or class of persons to whom the health information of Salvador Del Toro, Jr.
(patient) will be disclosed or who will make use of said information are:
1. Any and all physicians or health care providers providing care or treatment to
Salvador Del Toro, Jr. (patient);
2. Any liability insurance entity providing liability insurance coverage or defense to
any physician or health care provider to whom Notice of Health Care Claim has
been given with regard to the care and treatment of Salvador Del Toro, Jr.
(patient);
3. Any consulting or testifying experts employed by or on behalf of Gerardo E.
Camara°, M.D. (name of physician or health care provider to whom Notice of
Health Care Claim has been given) with regard to the matter set out in the Notice
of Health Care Claim accompanying this authorization;
4. Any attorneys (including secretarial, clerical, or paralegal staff) employed by or on
behalf of Gerardo E. Camaro, M.D. (name of physician or health care provider
to whom Notice of Health Care Claim has been given) with regard to the matter
set out in the Notice of Health Care Claim accompanying this authorization; and
5. Any trier of the law or facts relating to any suit filed seeking damages arising out of
the medical care or treatment of Salvador Del Toro, Jr. (patient).
E. This authorization shall expire upon resolution of the claim asserted or at the conclusion
of any litigation instituted in connection with the subject matter of the Notice of Health
Care Claim accompanying this authorization, whichever occurs sooner.
F. I understand that, without exception, I have the right to revoke this authorization in
writing. I further understand the consequence of any such revocation as set out in
Section 74.052, Civil Practice and Remedies Code.
G. I understand that the signing of this authorization is not a condition for continued
treatment, payment, enrollment, or eligibility for health plan benefits.
H. I understand that information used or disclosed pursuant to this authorization may be
subject to redisclosure by the recipient and may no longer be protected by federal HIPAA
privacy regulations.
Signature of
Date:
r
f3
Sa vador``Del Toro, Jr.
Patient's Name: Salvador Del Toro, Jr.
Patient's D.O.B.: 12.25.1973
Patient's SSN: 451.77.9676
APPENDIX TAB “C”
2013-C1-19135
131ST JUDICIAL DISTRICT COURT
SALVADOR DEL TORO JR US GERARDO E CARCA
DATE FILED: 11/20/2013
SALVADOR DEL TORO, JR. ERIC CRJ16
IN THE DISTI.
oi-
V. JUDICIAL DISTRICT
GERARDO E. CARCAMO, M.D. BEXAR COUN 1 TEXAS
PLAINTIFF'S ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Salvador Del Toro, Jr. (hereinafter referred to as "Plaintiff') and files this
petition complaining of Gerardo E. Carcamo, M.D. (hereinafter referred to as "Defendant") and for
cause of action would show unto this Honorable Court as follows:
I.
DISCOVERY CONTROL PLAN
Pursuant to Tex. R. Civ. P. 190, discovery in this case is intended to be conducted under
Level 3.
II.
PARTIES
Plaintiff, Salvador Del Toro, Jr., at all times relevant to this lawsuit, has been an individual
residing in Del Rio, Val Verde County, Texas.
Defendant, Gerardo E. Carcamo, M.D., is, and at all times relevant to this lawsuit has been, a
physician duly licensed to practice medicine in the State of Texas and resides in Bexar County,
Texas. Defendant may be served with process by certified mail, return receipt requested, to
addressee only at 414 Navarro, Suite 810, San Antonio, Texas 78205.
1
TACases\Del Toro.12041Pleadings\PetitIon.docx
III.
VENUE AND JURISDICTION
This Court has jurisdiction of this cause because the damages sought are within the
jurisdictional limits of this Court. Venue is proper in Bexar County, Texas in that such is the county
in which the events giving rise to this claim occurred.
IV.
FACTUAL BACKGROUND
This lawsuit is founded upon medical negligence committed by Defendant Gerardo E.
Carcamo, M.D. On or about December 15, 2011, Mr. Del Toro was admitted to Nix Hospital after
being evaluated by Dr. James Lackey for increased lower abdominal pain, nausea, and vomiting, A
CT scan was ordered and performed, such reflecting findings of ". . a severely diseased sigmoid
colon with underlying diverticular burden and a stricture". Mr. Del Toro was referred to Nix
Hospital where he was further evaluated and assessed by Bridget K. Fiechtner, M.D. Based on Dr.
Fiechtner's assessment and CT scan findings, Mr. Del Toro was admitted for further treatment and
evaluation. On December 16, 2011, Mr. Del Toro was seen in consultation by Defendant Gerardo E.
Carcamo, M.D. Defendant Gerardo E. Carcamo recommended a colonoscopy. On the evening of
December 17, 2011, Defendant Gerardo E. Carcamo, M.D. ordered, and Mr. Del Toro was
administered, GoLYTELY for gastrointestinal prep prior to colonoscopy. Shortly thereafter, he
began having worsening abdominal pain throughout the evening with vomiting. On December 18,
2011 at approximately 5:00 o'clock a.m., Mr. Del Toro had worsening and change in the quality of
his pain. He was sent emergently for a CT of the abdomen and pelvis which revealed the presence of
free air consistent with perforation of a hollow viscus. Defendant Gerardo E. Carcamo, M.D. was
called and Mr. Del Toro was emergently taken to the operating room on December 18, 2011.
2
Mases\Del Toro.12041PleadingsTetition,docx
Defendant Gerardo E, Carcamo, M.D. immediately performed a right hemicolectomy,
sigmoidectomy, and end-colostomy with Hartmann pouch and wound VAC placement. On
December 21, 2011, Mr. Del Toro underwent another surgery by Defendant Gerardo E. Carcamo,
M.D. for washout and wound VAC change. Mr. Del Toro remained hospitalized until December 30,
2011, Thereafter, Mr. Del Toro necessitated two additional corrective surgeries,
The complications associated from the perforation of his colon caused Mr. Del Toro severe
physical pain and mental anguish, physical impairment, disfigurement, and financial losses.
Although Defendant Gerardo E. Carcamo, M.D. clearly knew of the obstruction of the colon based
on the CT findings, Defendant Gerardo E. Carcamo, M.D. ordered GoLYTELY which is
contraindicated in a patient suspected of having gastrointestinal obstruction.
V.
NEGLIGENCE OF DEFENDANT
Defendant Gerardo E, Carcamo, M.D. owed a general duty of care to Salvador Del Toro, Jr.,
to provide health care, attention and/or treatment as a reasonably prudent physician would have
under the same or similar circumstances. Such duty required that said Defendant render health care
in conformity with the minimum applicable standard of care for a person under the same or similar
circumstances as Salvador Del Toro, Jr. Said Defendant breached that duty by engaging in the
following acts and/or omissions to act, such constituting negligence:
1. failing to appropriately treat Mr. Del Toro for a severe diseased sigmoid colon with
diverticular burden and stricture;
2. failing to consider alternative surgical interventions for Mr, Del Toro who was
suspected of having a gastrointestinal obstruction;
ordering GoLYTELY to prepare his colon for a colonoscopy which is contraindicated
in a patient suspected of having a gastrointestinal obstruction; and
3
ThCases\Del Toro.1204\PleadingsTetition.docx
4. failing to otherwise provide medical attention, care and/or treatment to a patient in
the same or similar condition in accordance with the applicable standard of care.
Such acts and/or omissions to act, whether taken singularly or collectively, constitute a direct
and proximate cause of the injuries and damages of Salvador Del Toro, Jr. for which he seeks
recovery.
VI.
DAMAGES
As a direct and proximate cause of the negligence of Defendant Gerardo E. Carcamo, M.D.,
Salvador Del Toro, Jr. has suffered injuries, including severe physical and mental pain and anguish
and disfigurement, which based upon a reasonable degree of medical probability, he will continue to
suffer for many years in the future, if not for the balance of his natural life. Additionally, Mr. Del
Toro suffered physical impairment and a loss of enjoyment of life which, based upon a reasonable
degree of medical probability, he will continue to suffer in the future. Furthermore, he has sustained
a loss of income and/or loss wage earning capacity. As a result of his injuries, Mr. Del Toro has also
incurred substantial reasonable medical and other health care expenses for necessary medical and
health care and, based upon a reasonable degree of medical probability, he will continue to incur
reasonable expenses for necessary medical and health care in the future.
VII.
NOTICE
Plaintiff would further show that on or about June 11, 2013, more than sixty (60) days prior
to filing of this cause, lie provided written notice of said claim by certified mail return receipt
requested to Defendant Gerardo E. Carcarno, M.D. Plaintiff otherwise fully complied with the notice
provisions pursuant to Chapter 74.051(a) of the Texas Civil Practices & Remedies Code. A true and
4
TACases\Del Toro.1204\PleadingsTetition.docx
correct copy of said notice is attached hereto marked as Exhibit "A" and is incorporated herein by
reference for all purposes.
WHEREFORE, PREMISES CONSIDERED, Plaintiff Salvador Del Toro, Jr. respectfully
prays that Defendant Gerardo E. Carcamo, M.D. be cited to appear and answer herein and that, upon
final trial, Plaintiff have and recover judgment in his favor against Defendant for the following:
1, actual damages within the jurisdictional limits of this Court;
2, pre judgment and post-judgment interest at the maximum rate allowed by law;
3. costs of suit; and
4 such other and further relief at law or in equity, general or special, to which Plaintiff
may be justly entitled. •
Respectfully submitted,
MAUZE LAW FIRM
2632 Broadway, Suite 401S
San Antonio, Texas 78215
Telephone: 210.225,6262
Facsimile: 210.354,3909
By.
G/(eorge W. Maul& II
TBC #13238800
ATTORNEY FOR PLAINTIFF
T:\Cases\Del Toro.12041PleadingsTetition.docx
VIAUZIt _MY F RAF
GEORGE W. MAUZE, II, ATTORNEY 2632 BROADWAY
SUITE 401 South
SAN ANTONIO, TEXAS 78215
TELEPHONE 210.225.6262
FACSIMILE 210.354.3909
EMAIL: gmauze@mauzelawfirm.com
VVWWMAUZELAWFIRM.COM
June 11, 2013
PERSONAL CONFIDENTIAL CMRRR #7012-3050-0002-3901-1372
Gerardo E. Carcamo, M.D.
414 Navarro, Suite 810
San Antonio, TX 78205
Re: Salvador Del Toro, Jr.
Dear Dr. Carcanio:
Please be advised that our law firm has been retained by Salvador Del Toro, Jr. to
represent him in any and all claims he may have against you arising from the facts stated herein.
On or about December 15, 2011, Mr. Del Toro was admitted to Nix Hospital after being
evaluated by Dr. James Lackey with the Riverwallc Clinic for increased lower abdominal pain,
nausea, and vomiting. After a CT scan obtained by the Riverwallc Clinic showed findings of ".
. a severely diseased sigmoid colon with underlying diverticular burden and a stricture," he was
referred to Nix Hospital where he was further evaluated and assessed by Bridget K. Fiechtner,
M.D. Based on Dr. Fiechtner's assessment and CT scan findings, Mr. Del Toro was admitted for
further treatment and evaluation and discussed the patient's case with you. On December 16,
2011 Mr. Del Toro was seen in consultation by you. On the evening of December 17, 2011, you
ordered and Mr. Del Toro was given GoLYTELY for gastrointestinal prep prior to colonoscopy.
Shortly thereafter, he began having worsening abdominal pain throughout the evening with
vomiting. On December 18, 2011 at approximately 5:00 o'clock a.m., Mr. Del Toro had
worsening and change in the quality of his pain. He was sent emergently for a CT of the
abdomen and pelvis which revealed the presence of free air consistent with perforation of a
hollow viscus. You were called and Mr. Del Toro was emergently taken to the operating room
on December 18, 2011. Due to the perforation of his colon, you immediately performed a right
hemicolectomy, sigmoidectomy, and end-colostomy with Hartmann pouch and wound VAC
placement. On December 21, 2011, Mr. Del Toro underwent another surgery by you for
washout and wound VAC change. Mr. Del Toro remained hospitalized until December 30,
2011. Since then, Mr. Del Toro has necessitated frequent medical attention, necessitated and
undergone two additional corrective surgeries.
The complications associated from the perforation of his colon which you "expected",
have caused him severe pain and mental anguish, severe discomfort, disfigurement, and financial
hardship. Although, you clearly knew of his partial obstruction in his colon based on the CT
findings, you ordered GoLYTELY which is contraindicated in a patient suspected of having
gastrointestinal obstruction. You further state in your December 18, 2011, operative report, that
"Unfortunately he was unable to have a bm 'as expected' and he perforated.".
Dr. Chemin
June 11, 2013
Page 2
The foregoing acts and omissions to act constitute negligence. As a result of such
negligence, Mr. Del Toro has suffered severe medical complications associated with his
perforated colon.
In accordance with Chapter 74.051(a) of the Texas Civil Practices & Remedies Code, this
letter constitutes your sixty (60) days notice that Salvador Del Toro, Jr. intends to assert health
care liability claims against you. If this matter is not resolved within sixty (60) days, then a
lawsuit will be filed.
In an effort to settle this claim without the necessity of filing a lawsuit, my client hereby
tenders an offer of settlement to you in the amount of Eight Hundred Thousand Dollars
($800,000.00), such consisting of $250,000.00 for noneconomic damages plus economic
damages including loss of income, and health care expenses in the amount of $550,000.00.
Attached hereto is a release for medical records in accordance with §74.052 of the Texas
Civil Practice & Remedies Code. Additionally, please accept this letter as our request for copies
of any and all medical records, diagnostic studies, whether digital, or film. Enclosed herewith is
a HIPAA release authorizing yOu to provide true, correct, and complete copies of same.
The standard professional liability insurance policy requires that the insured promptly
give the insurance carrier notice of any claim. If you or your insurance carrier wish to discuss an
amicable and expedient resolution of this claim, then please do not hesitate to give me a call.
Very truly yours,
George W. Mauz0I
GWM/ag
enclosures
xc: Mr. Salvador Del Toro, Jr.
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APPENDIX TAB “D”
WNG* -201a.C1-190$
SAVADOX DEL 'Togo, ,TR, IN THE DISTRICT COM
MAI JUDICIAL DISTMCT
GERARDO E. CARCAMO, M.D. AND
RAYIBUILA, M.D. BEXAR COUNTY, TEXAS
LAINTIFF'S MST AMENDED ORIOINAL PETITION.
VET KJI ORAF DB.7:dt OPSAID COURT:
MAI COMES Salvador 1".)01 Toro, Jr.(hereinafter referred to-at 'T..laintiffl and Illes this
First Amended Ddgina! Petition complaining of Gerardo E. Citroarna (hereinafter referred to
as "Defendant Caroam 51 Ravi. Botla, lierptn,after xploged to as "Defendant
AcitlaNtgehlafter colleettmelyagerredtp,a#'Defendants"Yarcdfor caus&ofaetion would show unto
this Hbrofabie Coikt: a MI:Mk
DiscovERy 01S1141.014.11,AN
Pursuant to Tex. R, Civ, P, 190, discovery in this ease intehded to '150' CO dada
Level 3.
PARTIES
Plaintiff;,Salvador Del Toro, Jr., at all 0.trieS'teleVaxittbiiiiiflaWilitithath6tri an individual
resitlingit Det E 0„. Val'Vet& etUil Uttit
Defendan'ti eetar,do:K -eftetn.01,144.:410,. antdat 411 dote talovant to. this. lawsuit ha.steen, a
**Ian duty licensed to .practice: tgot*Iti $(11te of Texo and resides in Bexar County,
Texas. Said Defendant has •appeared :and answered herein::
MasesTel Toro.12001eadIngs\PetRion-M111.doex
Defendant, Ravi Bala, ., xs, Oak all times relevant to tbis lawsuit has been, a physician
duly liconsed tb practice, medicine in the State of Texas and resides in Bexar County;Texas,
Defendant may be served with private process service. at .621 Camden Street, Suite 1202, San
Antonio, Texas 78215.
VENUE AND JURISDICTION
This Court has jurisdiction ,itit flits cause because: the damages sought *are within the
jurisdictional limits of this Court. Venue is.proper iriBexar, County, Texas in. that:such is the county
in. whith the events: giving rise to this claim occurred.
IV.
FACTUAL 'BACKGROUND
This lawsuit is founded upon medical negligence cOmmitted.by Defendants..
On or about December 15, 2011, Mt. Del Toro was admitted. to Nix Hospital after being
evaliutted Dr. Jarnes• Lackey for increased: lower abdominal pain, nausea, and. Vomiting. AMT
Beall was ordered and performed, such reflectinghitlings of ". , , a severely diseasedsigrnold colon
with underlying diverticular burden and a stricture". Mr, Del Toro was referred to Nix. Hospital
where .ho was f-urther evaluated.and assessed byBridget K. Fieentner,..M.D.. Based onDp,Rientitn a
assessment and CT scan findings, Mr. Del Toro was admitted for further treatment and evaluation.
On Decernber 16, '201.1, Mr. Del Toro was seen in consultatiOn by Defendant Carew.° and.
DefendairtBotia. Defendants, singularly or collectively, developed anion fbr acolbnoscopy. On the
evening of December 17, 201I, Defendant Carcamo and/or Defendant 13otla ordered, Mt*. Del
Toro was administered, GoLYTMY for gastrointestinal prep prior to colonoscopy. Shortly
thereafter, lie begat having worsening:abdominal pain throughout the evening with vcimiting. On
2
TACases\Del Toro.12041Pleadfngs\Petition-AM1,docx
December 1$0 20.114 approximately 5:00 o'clock a.rn„11./4.001: Toro had worsening:and Ohange in
the quality of hiSpain. He was sent emergently foraCT.Ofthe abdomen andpelvis which revealed
the presence of free air consistent with perforation of a hollow visCus: 'Defendant CiFeaMQ was
called and Mr. Del Toro was emergent!, taken.: tO:the operating room on December 18, 2011.
Defendant C4roanio. immediately. performs ft right hertiloolectonay,:signadidectorny, and end-
cOlostorny With Hartmann pouch and WoUnd VACplaCexterit OnDeceiiih 214611, VI:Da:Tao
underwent another surgery'hy Defendant 0:4010Mfor washenband watiilVAGehange: IV% Del
Toro remained hospitalized until December Q, '2011. Thereafter, WO:et Toro necessitated two
additional corrective .surgeries.
The complications: associated frOrnthe perforation of his colon caused Mn Del Toro severe
physical pain and 'mental ,anguish, physical; iMpairitiont, disfigurement,: and ilivliA04.16sSeS.
Although Dereridanta Clearly knew of the Obstruction, of the colon based on 'the eT. .trill tilts,.
Defendant. Carcerno and/or 'Defendant aotht..ordered GoLYTtlaY which is conWnditated in
patient suspected of having ,gastrointestinal obstruction..
V.
NEGLIGENCE OF DEFENDANT CARCAMO
Defendant Catcatne owed a general duty etcare to Salvador DelToitb:, ik4 to provide health
ease, attention: Kildialteattnent. as a reasonably‘prudent physician waild have tinder the same or
411110 04131,101 COS Such duty required that said. Defendant carom° roridot health care in
conform! 3 WO Ole Ininimum applicable standard of care for a person under the same or similar
circumstances. as Salvador, Del Toro, Jr. Said Defendant breached that duty by engaging in the
following acts and/or othissions to act, such constituting negligencet
TACases‘Del Torg,1204 \ Plead ings1PatitionAM I .11ocx
fAiling to appropriately'treat Mr. Del Toro for'a severe. diseased igtiioid colon With
diVcrtioulat hilrdeuluid Siridur0;
failing to consider .alternative mica' interventions for Mr. Del Toro who was,
suspected of having &gastrointestinal obstmetion;
ordering GoLYTBLYto pxoparehis colon:for avolonosoopy which is contraindicated.
in a patient Suspected of having a, gastmintestirial obstruction; and
4. failing to otheriVise provide medical attention, dare.and/or treat/10Mb a patient in
the same or similareondition ittaccordance•with the,applicable.steridard Of care.
Such acts and/Or omissions to Act; whether taken Singularly or collectively, coristitute a direct
arid proximate cause of injuries and damages ct, Salsiador Del Tore Irk for which lie seeks
recovery..
V.I.
NEGLIGENCE OF DEFENDANT BOTLA
DefendantBotla owed'a general duty ofcareloSalvador Del Toi9,,,frii.tc) ppyiclOcaltlregei
attetitlimi titidiateatitientat'a. reasonably prudent valid hAvelitickt the Sahie.or
oittilitistmeo„ ..Such dutyttotitilrod thataitid:Deteridatitt.30tla irenderhealth tare Ini c onfortitity with
the ranirown applicable standatd ,Orearolor: ,altiersogroxiciettha:.satne orohnilor Virctonstances as
Salvador Del: Toro, Jr. Said Defendant breached tliatdutybyengagingin the folloWingactsAnclior
omissions to act, •suchoonstitutingnegligence;:
1.. felliiv to appropriately treat Mr. Del Toro for a severe diseased OP-19W c.01011 with
diverticulat burden and stricture;
l rig TO. consider altertiatiVe surgical interveritions. for Mt Del Toro who was
suspected of having a gastrointestinal obstruction;
ordering GoLYTELY to prep= his colon fora pcionoscopy which is contraindicated
in a patient suspected of having a gastrointestinal obstruction; and
Masestol Ton12041PleiglingOetitionA 101 Ilacx
failing to otherwise provide medical attention, care and/or treatment to a patient in.
the same or similar condition in accordance with the applicable standard of care,.
Such acts and/or otnlasioslovt,whether taken singularly or collectively, constitute a direct
and proximate cause of the itkhiries And damages of Salvador Del Toro, Jr. for which he seeks
recovery.
VII.
DAMAGES
As a direet and pi:akin:late cause of thaneg IjIenee of Deferkdatts, Salvador.Del TOW,Jr,11
suffered injuries, including severe physical and mental pain andAriouiSh and disfigaremantiwhich
based owl a reasonable degree of medical probibility.,10 will continuoto suffer far rnanyyears
the future, if not far the 'balance of his natural life; Additionally, Mr. Del Toro suffered physical
impairment and a loss of enjoyment 4t *WA based upon a reasonable degree of niedical
probability, he Will continue to suffer:n the:future. Pinthentare; he.has sustained a logs of:ince-Me
and/or loss wage earning capacity. As a result of his injurie4 Mt. Del Tore :has .also incurred
substantial reasonable medical and other health date expenses fat eaessaty medical and :health are
tuatt, based upon a reasonable degree: of medical prohabilityi he will continue to incur reasonable
eVerP&Iifor necessary medical and health care in the ibture,,
NOTICE
Plaintiff would fittha show that on or about lithe 1.1., 2013, Mare thati (60) days prior
to filing of this cause, he provided voitteri notice of said claim by certified mail rettnn receipt
requested to Defendant catcatno. Plaintiff otherwise:fully complied with the notice provisions
pursuant Chapter 711;051.4) of 1i Texas CIA Practices: 86 Remedies Code: A true.and correct
5
MasesTel Toro.12041Pleadl ngs1PotItionAM 1 .doox.
.topyasaid notice is attachedb.eatortiorked as EkhibitnAillud itingorporatedheteinbyriference
fottillptirposes.
The -statute of '.limitations prohibited the providing of written notice of said elaitn to
Defendant aotla.
WHEREFORE,. PREMISES. CONSIDERED, Plaintiff Salvador Del Toro, rr. respect .illy
prays that Defendant Botla be cited to 'appear And aits*eflibitin and that, upon final trial, Plaintiff
have and recoverJudgnient.in hitfavOt'againgDefendatits,Jointly and:severalty, for the following:
1, actual ilanagOt Within theiorisdietiOnal limit's„Ofthia Ccutt;
pre-jUdginent and pOstifjndonent interest at the rtaxinuttn. rate Allowed by law;
Wats crstlit; at d..
such other and further relief at law or in equity; genetat or special) tOleich.Plaititiff
may be justly entitled,
Respectfbily submitted,
1.01.,AVPIRM
2631 Atoulway, Suite 40 1
;sap. Antonio; Texas 752I5
Telephone: 2-10,225..6262
Vacsirnire: '210,354.'3909
urge.
T8e#131388tFC1
ATTORNVZ VORPLAINTIFY
T:ICaseaDel Toro.12041PleadIngs1PetItIon-011.docx
CERTIFICATE OF:SE'VXCI
I hereby certify that on this 3rd day of MEtreh,.2014., orkte andeorteet•eopy ofBaintiff's First.
Amended 'Original Petition has been sent by via fax And topiat mail to!
-Mir. 'W.:Richard Wagner, Esq.
'Wagner Celia, LLP
7718 Broadway, Suite 100
aim Antonio, TX 78209
ttaseaVlifTiiro.1200loathaA01:10lltion4AM
GAUZE LAW FIRM
GEORGE W. MAU2t, ATTORNEY 2s3ttRoADWAY
;sutre4oi South
SAN ANTONIO/ T.ExAt 7E 1E:
LEPHONE 210.226E2E2
FAOSPORX 210.35090e
EP/1411..t.urnmizeematogol6viifitn.com
WWW.MAUZELAWFIRM,OOM
ate 04011
PERSONAL & CONFIDENTIAL OMR 97012-3050-0002-1901.1372
Gerardo B. Cattalo°, M.D.
414 Navarro, Suite 810
San Antonio, TX 78205
Re: Salvador Del Toro, Jr.
a. irettino:
Please be adViSed that our law Ann has been .retained by Salvador Del Totoi Jr. to
represent him in any:and all claiinShe.may have againstyen, firiainglkorn theSacts stated herein,
On.or about December 15, 2011, Mr.- Del Toro was Catliattti to Nix, Hospital`` tiftet.b.eilig
evaluated by Dr. James Lackey with the RiVerwalk Clinic. for irtOrelged low0 abatninal Pain;
nausea, and vomiting. After a CT scan obtained britOltiVerwalk Clinic showed:ndings of"...
. a severely diseased siginoid colon, with utulotyits afv6rficular burden and a:Atticture," be was
referred to Nix Hospital where lie was tirther evaltiated and assessed by Bridget K. .Fiechtner,
M.D: Based on Dr. Pieebtner's assessment and CT scan findings, Mr. Del TorO,Was admitted for
tattier treatMent and evaluation and dWtssed the.patient's:'cose With yo.u, On. December:10,
:261 I Mr: Del Toro was :seenin. consultation you, On the evening of DecetubOr 17, 2011,. you
ordered Arid Mr, Del Toio was given 00.;YTBLY for, gastrointestinal prep prior to colonoscopY,.
Shortly thereafter, he began having worsening: Abdominal pain throughout the evening with.
vorniting. On December 18). 2011 . at approxiniately o'nlOck 4411„ tilt, Del Toro had
worsening and change in the quality of his pain. He was sent emergently for :it CT of the
abdomen and pelVis Which revealed the presence of free. air consistent with 'perforation of
hollbw viscusp You were: called: and Mr. Del.Toro was ornergently taken to the operating:room
on: December. 2011, Due to the perthration of his colon, you immediately performed aright
hemieoleotomy, sigmoidectordy, and end-colostomy With Hattinaun poudh and wound VAC
placement. On December 21, 2011., Mr, Del Toro underwent .another surgery by you for
Washout and wound VAC change. NIr.. Del Toro, remained hospitaligod : until December 30,
20.11. SinCe then, Mr, Del Toro has AeceSSitatott frequent Medleal attention, necessitated and
undergone two additionEd otirrective surgeries:
The complications associated #orrt "the: perfOratibt of 'his' colon, •wbieb. you. "expected",
have caused him:sovore pain and mental anguish, severedisecanfort; disfigurement,; and Anancial
Although, you: clearly knew of his partial obstruction in his colen based on the CT
findings, you ordered GOLYTELY which is contraindicated in a patient suspected of having
gastrointestinal obstruction, "You further state in your December 1:8; 2011, operative report, that
"Unfortunately he was W441:4;t0 have:a bin 'us expected'' and he perforated."..
Dr. Camara°
June 11, 2013
Page 2
The foregoing tots and omissions M act constitute negligence. M a. result of such
negligence, Mr. Del Toro has suffered severe niedloal complications associated with his
perforated colon.
In accordance with Chapter 74.051(a) ofth'rea45 Mil Practices.84 Remedies•Code4his
letter constitutes your sncty (60) days notice that .Salyatior Del Toro, Jr. intends to assert health
came liability. Claims against you. It this matter is not resolved. within:sixty (60) days, then a
lawsuit will be filed:
hi an effort to settle- this •Clain without the necessity of filing a lawsuit, my client hereby
tenders an offer of settlement to you in the amount: of ight Hunched Thousand Dollars
($800,000.00); $141 consisting of $250,000.00 for noneconomic daniages plus economic
damages includirig loss of income, and, health care expenses in the amount of $550,000.00,
Attached hereto is a release for medical records hi. accordance with §74.052 :of the Texas
Civil Practide & XeModi.04 Code. Additionally, please accept this letter as our request for copies
of any and all medical records, diagnostic studies, whetherdigital, Enclosed.erewith is
a. HIPAktelease authorizing you to provide true, correct, and ceanplete copies °ramie,
The standard professional liability insurance policy Y•etnt res That the 'Mated promptly
give the insurance carrier notice of any claim,.. If you or your insurance carrier wish to .discuss an
amicable and expedient resolution _of this claim, then please do not hesitate to give me a call.
Very truly yours,
(C't
Geo ge W. MauzVII
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APPENDIX TAB “E”
FILED
12/31/2014 8:52:51 AM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Brenda Carrillo
CAUSE NO: 2013-CI-19135
SALVADOR DEL TORO, JR. IN THE DISTRICT COURT
V. 131st JUDICIAL DISTRICT
GERARDO E. CARCAMO, M.D. AND
RAVI BOTLA, M.D. BEXAR COUNTY, TEXAS
PLAINTIFF'S FOURTH AMENDED ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Salvador Del Toro, Jr. (hereinafter referred to as "Plaintiff') and files this
Third Amended Original Petition complaining of Gerardo E. Carcamo, M.D. (hereinafter referred to
as "Defendant Carcamo") and Ravi Botla, M.D. (hereinafter referred to as "Defendant
Botla")(hereinafter collectively referred to as "Defendants") and for cause of action would show unto
this Honorable Court as follows:
I.
DISCOVERY CONTROL PLAN
Pursuant to Tex. R. Civ. P. 190, discovery in this case is intended to be conducted under
Level 3.
II.
PARTIES
Plaintiff, Salvador Del Toro, Jr., at all times relevant to this lawsuit, has been an individual
residing in Del Rio, Val Verde County, Texas.
Defendant, Gerardo E. Carcamo, M.D., is, and at all times relevant to this lawsuit has been, a
physician duly licensed to practice medicine in the State of Texas and resides in Bexar County,
Texas. Said Defendant has appeared and answered herein.
1
T:\Cases\Del Toro.1204\PleadingsTetition-AM4.clocx
Defendant, Ravi Botla, M.D., is, and at all times relevant to this lawsuit has been, a physician
duly licensed to practice medicine in the State of Texas and resides in Bexar County, Texas. Said
Defendant has appeared and answered herein.
VENUE AND JURISDICTION
This Court has jurisdiction of this cause because the damages sought are within the
jurisdictional limits of this Court. Venue is proper in Bexar County, Texas in that such is the county
in which the events giving rise to this claim occurred.
IV.
FACTUAL BACKGROUND
This lawsuit is founded upon medical negligence committed by Defendants.
On or about December 15, 2011, Mr. Del Toro presented himself to Dr. James Lackey for
increased lower abdominal pain for 3 — 4 days, nausea, and vomiting. He was fatigued and had not
been eating or taking many fluids. He had a history of diverticulitis and hospitalizations for acute
diverticulitis, the most recent approximately 1 month prior. A CT scan was ordered and performed,
such reflecting findings of ". . . a severely diseased sigmoid colon with underlying diverticular
burden and a stricture". Mr. Del Toro was referred to Nix Hospital where he was further evaluated
and assessed by Bridget K. Fiechtner, M.D. Dr. Fiechtner noted he was in mild distress with pain,
his abdomen was distended, and bowel sounds were hypoactive. She reviewed the CT scan and
noted the stricture is of particular concern because it appears to be partially obstructing the colon.
Based on Dr. Fiechtner's assessment and CT review, Mr. Del Toro was admitted for further
treatment and evaluation. On December 16, 2011, Mr. Del Toro was seen in consultation by
Defendant Carcamo who recommended a plan for surgery — either laparoscopic or possible open
2
T:Cases\Del Toro.1204 \Pleadings \Petition-AM4.docx
colon resection with possible colostomy placement. Mr. Del Toro agreed to the surgery but wanted
it performed by a surgeon in Austin who had previously performed surgeries on family members.
After the hospital inquired with the surgeon in Austin and discovered he would not be available until
Monday, Mr. Del Toro requested surgery that day by Defendant Carcamo. Defendant Carcamo had
left the hospital already and informed the nursing staff that he would see Mr. Del Toro the next
morning. The next morning on December 17, 2011, Defendant Botla, a gastroenterologist, consulted
with Mr. Del Toro. He recommended a colonoscopy. Mr. Del Toro refused the colonoscopy and
again expressed his decision to proceed with the surgery recommended by Defendant Carcamo.
Defendant Carcamo spoke to Mr. Del Toro who again expressed his decision to proceed with the
recommended surgery, but Defendant Carcamo changed his plan and now recommended Mr. Del
Toro proceed first with a colonoscopy. He explained the "importance of colonoscopy" and
persuaded Mr. Del Toro to consent. On December 17, 2011, Defendant Botla ordered, and Mr. Del
Toro was administered, GoLYTELY for gastrointestinal prep prior to colonoscopy. He did not have
a bowel movement after the GoLYTELY was administered. Shortly thereafter, Mr. Del Toro began
complaining of severe pain to his abdomen. Both Defendants were notified but failed to examine
Mr. Del Toro or order any diagnostic tests. Mr. Del Toro's abdominal pain worsened to a scale of 10
out of 10, he began crying, and was very upset. He suffered severe pain for the next 12 hours. A CT
scan was ordered STAT on the morning of December 18, 2011. It revealed the presence of free air,
such indicative of a perforated colon. He was emergently taken to the operating room and Defendant
Carcamo performed an exploratory laparotomy. He found a perforation in the right colon, fecal
contamination of the peritoneum which had progressed to peritonitis and sepsis, and he performed a
right hemicolectorny (necessitated because of the perforated colon from the colon prep),
3
T:\Cases\Del Toro.1204\Pleadings\Petition-AM4,docx
sigmoidectomy (necessitated because of the diverticulitis, stricture, and obstruction), and end-
colostomy with Hartmann pouch and wound VAC placement. On December 21, 2011, Mr. Del Toro
underwent another exploratory laparotomy, drainage of an intra-abdominal abscess, colostomy
revision, placement of wound VAC, and refill of ONQ pump. Mr. Del Toro remained hospitalized
until December 30, 2011. He was re-admitted in February 2012 and on February 17, 2012,
Defendant Carcamo performed laparoscopic adhesiolysis and a cholecystectomy. Mr. Del Toro
again was admitted to the hospital in March 2012 and Defendant Carcamo performed another
laparoscopic adhesiolysis, laparoscopic splenic flexure takedown, laparoscopic colostomy reversal,
and parastomal hernia repair.
V.
NEGLIGENCE OF DEFENDANT CARCAMO
Defendant Carcamo owed a general duty of care to Salvador Del Toro, Jr., to provide health
care, attention and/or treatment as a reasonably prudent general surgeon would have under the same
or similar circumstances. Such duty required that said Defendant Carcamo render health care in
conformity with the minimum applicable standard of care for a person under the same or similar
circumstances as Salvador Del Toro, Jr. Said Defendant breached that duty by engaging in the
following acts and/or omissions to act, such constituting negligence:
1. failing to appropriately treat Mr. Del Toro for a severe diseased sigmoid colon with
diverticular burden, stricture, and obstruction;
2. recommending a colonoscopy which requires colon preparation when such was
contraindicated because of the gastrointestinal obstruction;
3. failing to timely diagnose and treat the colon perforation on December 17-18, 2011;
and
4
T:\Cases\Del Toro.1204\Pleadings\Petition-AM4.docx
4. failing to otherwise provide medical attention, care and/or treatment to a patient in
the same or similar condition in accordance with the applicable standard of care.
Such acts and/or omissions to act, whether taken singularly or collectively, constitute a direct
and proximate cause of the injuries and damages of Salvador Del Toro, Jr. for which he seeks
recovery.
VI.
NEGLIGENCE OF DEFENDANT BOTLA
Defendant Botla owed a general duty of care to Salvador Del Toro, Jr., to provide health care,
attention and/or treatment as a reasonably prudent internal medicine physician/gastroenterologist
would have under the same or similar circumstances. Such duty required that said Defendant Botla
render health care in conformity with the minimum applicable standard of care for a person under the
same or similar circumstances as Salvador Del Toro, Jr. Said Defendant breached that duty by
engaging in the following acts and/or omissions to act, such constituting negligence:
1. recommending a colonoscopy, and colon preparation, when it was known that Mr.
Del Toro had severe sigmoid disease, stricture, and obstruction;
ordering GoLYTELY to prepare his colon for a colonoscopy which is contraindicated
in a patient with a gastrointestinal obstruction;
3. failing to timely diagnose and treat the colon perforation on December 17-18, 2011;
and
4. failing to otherwise provide medical attention, care and/or treatment to a patient in
the same or similar condition in accordance with the applicable standard of care.
Such acts and/or omissions to act, whether taken singularly or collectively, constitute a direct
and proximate cause of the injuries and damages of Salvador Del Toro, Jr. for which he seeks
recovery.
5
T: \Cases gel Toro.1204 \Pleadings\Petition-AM4.docx
VII.
DAMAGES
As a direct and proximate cause of the negligence of Defendants, Salvador Del Toro, Jr.
suffered injuries, including severe physical and mental pain and anguish in the past; disfigurement,
which based upon a reasonable degree of medical probability, he will continue to have for the
balance of his natural life; physical impairment and a loss of enjoyment of life in the past; and a loss
of income in the past. Further, Mr. Del Toro incurred substantial reasonable medical and other
health care expenses for necessary medical and health care.
VIII.
NOTICE
Plaintiff would further show that, more than sixty (60) days prior to filing of this cause, he
provided written notice of said claim by certified mail return receipt requested to Defendant
Carcamo. Plaintiff otherwise fully complied with the notice provisions pursuant to Chapter
74.051(a) of the Texas Civil Practices & Remedies Code.
The statute of limitations prohibited the providing of written notice of said claim to
Defendant Botla.
WHEREFORE, PREMISES CONSIDERED, Plaintiff Salvador Del Toro, Jr. respectfully
prays that, upon final trial, Plaintiff have and recover judgment in his favor against Defendants,
jointly and severally, for the following:
actual damages within the jurisdictional limits of this Court;
2. pre judgment and post-judgment interest at the maximum rate allowed by law;
3. costs of suit; and
6
T:\Cases\Del Toro.1204\Pleadings\Petition-AM4.docx
4. such other and further relief at law or in equity, general or special, to which Plaintiff
may be justly entitled.
Respectfully submitted,
MAUZE LAW FIRM
2632 Broadway, Suite 401S
San Antonio, Texas 78215
Telephone: 210.225.6262
Facsimile: 210.354.3909
B ";
,7'
eorge W. Mail
, 4- I
ginauze@matzelawfirm.com
TBC #13238800
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
hereby certify that on this 31st day of December, 2014, a true and correct copy of Plaintiff's
Fourth Amended Original Petition has been sent by via. fax and regular mail to:
Mr. W. Richard Wagner, Esq. Mr. Brett B. Rowe, Esq.
rwagner(i0iagnercario.com bbrowe(D/,evans-rowe.com
Wagner Cario, LLP Evans, Rowe & Holbrook, P.C.
7718 Broadway, Suite 100 10101 Reunion Place, Suite 900
San Antonio, TX 78209 San Antonio, TX 78216
7
T:\Cases\Del Toro.12041PleadingsTetition-AM4.docx
APPENDIX TAB “F”
FILED
8/14/2014 2:38:32 PM'
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Jennifer Brazil
CAUSE NO. 2013-CI-19135
SALVADOR DEL TORO, JR. IN THE DISTRICT COURT
vs. 131ST JUDICIAL DISTRICT
GERARDO E. CARCAMO, M.D. AND
RAVI BOTLA, M.D. BEXAR COUNTY, TEXAS
MOTION FOR SUMMARY JUDGMENT AND FOR SEVERANCE
OF DEFENDANT, RAVI BOTLA, M.D.
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant, Ravi Botla, M.D. ("Dr. Botla"), respectfully files this his Motion for
Summary Judgment and for Severance pursuant to Rule 166a of the Texas Rules of Civil
Procedure on the ground that Plaintiff's claims against him are barred by the applicable
two year statute of limitations. In support of his motion, Dr. Botla respectfully shows the
Court the following:
BASIS OF MOTION
Dr. Botla is entitled to summary judgment that Plaintiff take nothing by this suit
because Defendant has pleaded and established by the summary judgment evidence
described below each element of the affirmative defense of limitations applicable to
Plaintiff's medical malpractice claims.
Specifically, because this is a medical malpractice lawsuit governed by Chapter 74
of the Texas Civil Practice and Remedies Code, the statute of limitations is 2 years. TEX.
CIV. PRAC. & REM. CODE § 74.251(a). Although Chapter 74 tolls the statute of limitations
by 75 days in cases where a defendant is timely served with a statutory notice letter and
sufficient accompanying medical authorization, in this case there was no statutory
sufficient medical authorization served on any defendant prior to the expiration of the
statute of limitations.1 Therefore, Plaintiff had two years from the date of accrual to file
his lawsuit. Plaintiff's cause of action against Dr. Botla accrued on December 17, 2011,
the date on which Dr. Botla treated Plaintiff. Since Plaintiff did not file this lawsuit on or
before December 17, 2013 (suit was filed March 3, 2014), his suit is time-barred and
Texas law mandates its dismissal.
Moreover, even if Plaintiff had timely served Dr. Botla—or any defendant for that
matter—with a sufficient authorization, tolling of the statute of limitations by 75 days would
not save Plaintiff's claims against Dr. Botla since they were filed 2 years and 76 days after
the date of accrual (2 years plus 75 days was Sunday, March 2, 2014). Chapter 74
provides an absolute statute of limitations "notwithstanding any other law," such that
March 2, 2014 was the absolute last day on which Plaintiff's Petition could have been
filed, notwithstanding any other rule of procedure or statute that, outside the context of
medical malpractice cases, might extend limitations or filing deadlines when they fall on
a weekend.
STATEMENT OF FACTS
Plaintiff has sued Dr. Botla alleging claims of negligence arising out of medical
care and treatment Dr. Botla provided to Plaintiff on December 17, 2011. More
specifically, Plaintiff presented to Nix Hospital on December 15, 2011 with complaints of
abdominal pain and a history of recurrent diverticulitis. A CT scan showed a diseased
sigmoid colon with underlying diverticular burdening and stricture. Co-Defendant, Dr.
I Although an authorization was provided to Dr. Botla's co-defendant, Dr. Carcamo, prior to the expiration of
the statute of limitations, it was defective on several grounds, as will be discussed in greater detail in the body
of this Motion. That defective authorization therefore did not operate to toll the statute of limitations.
2
Gerardo Carcamo, evaluated Plaintiff the following morning and recommended surgery.
Pursuant to Dr. Carcamo's request, Dr. Botla consulted on the patient's care on the
morning of December 17, 2011. After evaluating the patient, he recommended a
colonoscopy and ordered a colon prep in relation to same. That evening, Plaintiff
complained of continued abdominal pain. A repeat CT showed bowel perforation.
Plaintiff went to surgery shortly thereafter. Plaintiff's lawsuit against Dr. Botla asserts
negligence related to Dr. Botla's December 17, 2011 recommendation for colonoscopy
and order for the colon prep on the theory that the colon prep contributed to the bowel
perforation.
Plaintiff filed his Original Petition on November 20, 2013, naming only Dr. Carcamo
as a defendant. Prior to filing suit against Dr. Carcamo, on June 11, 2013, Plaintiff served
Dr. Carcamo with a notice letter as required by Chapter 74. Accompanying that notice
letter was an authorization form that allowed Dr. Carcamo to "obtain and disclose to
Mauze Law Firm [Plaintiff's counsel]" protected health information. Contrary to the
purpose of Chapter 74, the authorization thus limited Dr. Carcamo's ability to obtain
records to investigate Plaintiff's claim. Moreover, also contrary to the requirements of the
statute, the authorization failed to include several of Plaintiff's treators over the five years
preceding the health care at issue. In fact, the authorization excluded more treators than
it included. The authorization was therefore defective. As a result, Dr. Carcamo moved
to abate the proceedings for 60 days as allowed under Chapter 74 when Plaintiff does
not comply with the notice and authorization requirements. Since suit was filed against
him within the two year statute of limitations, abatement was his only recourse.
3
It was not until March 3, 2013, 2 years and 76 days after Dr. Botla provided the
care at issue, that Plaintiff amended his Petition to include Dr. Botla as a defendant.
Unlike Dr. Carcamo, Dr. Botla was not provided any notice letter or even the defective
authorization prior to suit be filed against him. He therefore had absolutely no opportunity
to investigate the claims made against him prior to the lawsuit being filed. More
importantly, since Plaintiff failed to serve a statutory sufficient authorization on any health
care provider within two years of the at-issue care and treatment provided by Dr. Botla,
the 75 day tolling period was not triggered and Plaintiff's lawsuit against him is time-barred
by the 2 year statute of limitations. Even had Plaintiff timely served one of the health care
providers with a sufficient authorization, which would have tolled the statute by 75 days,
since the lawsuit was filed 2 years and 76 days after the care at issue was provided,
Plaintiff's lawsuit against Dr. Botla was still filed after the expiration of the absolute 2 year
statute of limitations. In light of the above, Dr. Botla respectfully moves this Court to grant
his Motion for Summary Judgment and dismiss with prejudice Plaintiff's entire lawsuit
against him.
SUMMARY JUDGMENT EVIDENCE
To support the facts in this motion, Dr. Botla offers the following summary-
judgment evidence attached to this motion and incorporates the evidence into this motion
by reference:
a. Exhibit A — Plaintiff's Original Petition (filed November 20,
2013);
b. Exhibit B — Plaintiff's First Amended Petition (filed March 3,
2014);
4
c. Exhibit C — Plaintiff's Second Amended Petition (filed April 8,
2014);
d. Exhibit D — Plaintiff's Chapter 74 Notice Letter to Gerardo E.
Carcamo, M.D. (dated June 11, 2013);
e. Exhibit E — Plaintiff's Authorization Form for Release of
Protected Health Information (dated June 7, 2013) ("Plaintiff's
Pre-Suit Authorization Form"); and
f. Exhibit F — Plaintiff's Objections and Responses to Defendant
Ravi Botla, M.D.'s First Request for Production, response to
request for production number 23 (dated May 8, 2014),
Defendant hereby states his intent to use unfiled discovery
products as summary judgment proof
g. Exhibit G — Original Answer and Jury Demand of Defendant,
Gerardo Carcamo, M.D. (filed December 16, 2013)
IV.
ARGUMENTS & AUTHORITIES
Dr. Botla pleads the affirmative defense of the statute of limitations as to Plaintiff's
entire cause of action against him. Since Plaintiff did not file his suit against Dr. Botla
until 2 years and 76 days after the care at issue was provided, his lawsuit against Dr.
Botla was filed 76 days late and is time barred. Even had Plaintiff complied with the
requirements of Chapter 74 and provided a statutory sufficient authorization within the
limitations period, so as to toll the statute for 75 days, Plaintiff's lawsuit would have still
been untimely filed by 1 day.
A. Summary Judgment Standard
The movant for summary judgment must show that (1) there is no genuine issue of
material fact and (2) the movant is entitled to judgment as a matter of law. TEX. R. Civ. P.
166a(c); Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003); M.D.
Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000); Lear Sigler, Inc. v.
5
Perez, 819 S.W.2d 470, 471 (Tex. 1991). The burden to produce summary-judgment
evidence to raise a fact issue shifts to the nonmovant after the movant has established that
it is entitled to summary judgment as a matter of law. Casso v. Brand, 776 S.W.2d 551, 556
(Tex. 1989).
A defendant may move for summary judgment on the affirmative defense of the
statute of limitations. See Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.
1995). A defendant moving for summary judgment on a limitations defense meets his
burden if he (1) proves when the cause of action accrued and (2) negates the discovery rule
if it was pleaded or otherwise raised by the plaintiff. Rhone-Poulenc, Inc. v. Steel, 997
S.W.2d 217. 224 (Tex. 1999). Where, as here, Plaintiff does not raise the discovery rule in
his pleadings, the defendant is not required to negate it in his motion for summary judgment.
In re Estate of Matejek, 960 S.W.2d 650, 651 (Tex. 1997). In any case, the discovery rule
has no application to this medical malpractice cause of action because the statute of
limitations is absolute. Diaz v. Westphal, 941 S.W.2d 96, 99 (Tex. 1997) (the statute of
limitations provision of 4590i, now Chapter 74, abolished the discovery rule).
B. Applicable Statute of Limitations and Accrual Date
The statute of limitation applicable to a health care liability claim is 2 years from the
accrual date. TEX. Civ. PRAC. & REM. CODE § 74.251(a). A cause of action for a health care
liability claim accrues on the date of the occurrence of the breach or tort. ID; Shah v. Moss,
67 S.W.3d 836, 841 (Tex. 2001) (if, as here, the date the alleged breach occurred is
ascertainable, limitations must begin on that date).
The assertions of negligence against Dr. Botla relate to his recommendation for a
colonoscopy and the order and administration of colon prep. See Plaintiffs First Amended
6
Petition at Exhibit "B" and Plaintiffs Second Amended Petition at Exhibit "C." Those actions
occurred on December 17, 2011. See Plaintiff's Second Amended Petition at Exhibit "C."
Therefore Plaintiff's cause of action against Dr. Botla accrued on December 17, 2011 and
the 2 year statute of limitations began running on that date.
C. Lawsuit Filed After the Expiration of the Two Year Statute of Limitations
Plaintiff's lawsuit against Dr. Botla was not filed until March 3, 2014. See Plaintiff's
First Amended Petition at Exhibit "B" and Plaintiff's Original Petition at Exhibit "A." This
was 2 years and 76 days after the cause of action accrued on December 17, 2011.
Therefore, Plaintiff's lawsuit was filed outside of the 2 year statute of limitations period
and must be dismissed. This result is not changed by the tolling provision of Chapter 74,
which is only triggered if a sufficient authorization is served within the statute of limitations;
here only a defective authorization was served on Dr. Botla's co-defendant. Moreover,
since the statute of limitations under Chapter 74 is absolute "notwithstanding any other
law," nor is the result changed by statutes or rules outside of Chapter 74 that might extend
the limitation deadline in cases that are not health care liability claims.
1. Tolling Period Not Triggered Where Authorization is Defective
If Plaintiff had timely served a sufficient authorization form pursuant to Section
74.052 of the Civil Practice and Remedies Code, the statute of limitations would have
been tolled by 75 days. TEX. Civ. PRAC. & REM. CODE § 74.051(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 . ."). However, since Plaintiff did not serve any health
care provider with a statutorily sufficient authorization within the limitations period, Plaintiff
did not give notice as provided in Chapter 74 and is therefore unable to take advantage of
7
the tolling provision. Carreras v. Marroquin, 339 S.W.3d 68, 74 (Tex. 2011) (failure to serve
the statutorily required authorization form before the expiration of the limitations period bars
application of the tolling provision of Section 74.051(c)); Nicholson v. Shinn, No. 01-07-
00973-CV, 2009 WL 3152111, at *4 (Tex. App.—Houston [1st Dist.] Oct. 1, 2009, no pet.)
(notice is not proper and the statute of limitations is not tolled when notice is provided with
a defective authorization form).
Prior to the expiration of the statute of limitations applicable to Dr. Botla, Plaintiff
served Co-Defendant, Dr. Carcamo, with a notice letter and authorization form. See
Plaintiff's Chapter 74 Notice Letter to Gerardo E. Cacacmo, M.D. at Exhibit "D" and Plaintiffs
Authorization Form for Release of Protected Health Information ("Plaintiff's Pre-Suit
Authorization") at Exhibit "E." Plaintiff never served any other health care provider, including
Dr. Botla, with a notice letter or authorization. See Plaintiff's Second Amended Petition at
Exhibit "C" and Plaintiff's Objections and Responses to Defendant Ravi Botla, M.D.'s First
Request for Production, response to request for production number 23 at Exhibit "F."
Therefore, the only way Plaintiff would get an additional 75 days to file suit against Dr. Botla
is if the authorization served on Dr. Carcamo (Exhibit "E") was statutorily sufficient.
In order to be sufficient, the authorization must track the precise text of Section
74.052(c). TEX. Civ. PRAC. & REM. CODE § 74.052(c) ("The medical authorization required
by this section shall be in the following form . ."). An authorization form that only authorizes
the release of records to the Plaintiff's own attorneys does not track the precise text of
Section 74.052(c) and is defective. See e.g., Cantu v. Mission Regional Medical Center,
No. 13-12-00568-CV, 2014 WL 1879292, *4 (Tex. App.—Corpus Christi, May 8, 2014, no
pet.). Moreover, in order to be sufficient, the authorization must provide the statutorily
8
required list of the patient's physicians and health care providers for the previous five years.
TEX. CIV. PRAC. & REM. CODE § 74.052(c); see also, Mitchell v. Methodist Hospital, 376
S.W.3d 833, 837 (Tex. App.–Houston [1st Dist.] 2012) (statute of limitations should not
be tolled when statutorily required information is omitted from the medical authorization);
Nicholson, 2009 WL 3152111, at *5.2
Plaintiffs Pre-Suit Authorization Form is defective and is therefore insufficient to
trigger 75 day tolling provision under Section 74.051(c). Specifically, Plaintiff's Pre-Suit
Authorization Form is materially defective on two grounds. First, it only provides that Dr.
Carcamo (not Dr. Botla) can "obtain and disclose to Mauze Law Firm [Plaintiff's counsel]"
the protected health information described in the authorization. It therefore does not track
the language of Section 74.052(c) and is defective. See Cantu, 2014 WL 1879292, at *4.
It does not allow Dr. Carcamo—much less Dr. Botla—an opportunity to obtain the medical
records for investigation of the claims. Notably, although Dr. Carcamo was sued within the
limitations period and therefore did not have a statute of limitations defense, in his Original
Answer, filed the day before the expiration of the limitations period, Dr. Carcamo moved to
abate the proceedings based on the defective authorization. See Original Answer and Jury
Demand of Defendant, Gerardo Carcamo, M.D. at Exhibit "G." Therefore, before the
expiration of the 2 year statute of limitations, Plaintiff was on notice that he had served a
defective authorization and did not correct it prior the running of the statute.
2 Although the Dallas and El Paso courts of appeals have, in fact-sensitive circumstances, found imperfect
authorizations sufficient to toll the statutes of limitations, the El Paso case was decided before the Texas
Supreme Court clarified in Carreras the requirements that a plaintiff must meet in order for limitations to be
tolled. Moreover, the holdings of the Houston and Corpus Christi courts of appeals are more in line with the
purpose of the notice and authorization requirements in Chapter 74. See e.g., Mitchell, 376 S.W.3d at 837
(omissions interfere with the statutory design to enhance the opportunity for presuit investigation, negotiation
and settlement). Of course, the Dallas and El Paso decisions are not controlling authority.
9
Second, contrary to the requirement that Plaintiff include all medical providers who
"examined, evaluated, or treated" him "during a period commencing five years prior to the
incident made the basis of the lawsuit, Plaintiff only listed three such medical providers,
failing to list at least four, and probably more, medical providers—the authorization excluded
more providers than it included. See Plaintiffs Pre-Suit Authorization Form at Exhibit "E."
Significantly, the providers excluded from Plaintiffs authorization provided care and
treatment directly related to the claims made in this lawsuit: the providers provided care and
treatment related to prior episodes of diverticulitis, the condition that was being treated
during the care at issue. Therefore, the failure to include these additional providers renders
the authorization defective, and wholly insufficient to allow Dr. Botla the opportunity for pre-
suit investigation of the claims made against him. See Nicholson, 2009 WL 3152111, at *5.
Even had the authorization been directed to Dr. Botla, it was insufficient to allow him
to investigate the claims against him. Not only did it not allow him to obtain the records, it
also failed to include several important providers relevant to Plaintiffs claims. Therefore,
the authorization was defective and did not trigger the 75 day tolling period. Thus, Plaintiff's
lawsuit against Dr. Botla is barred by the statute of limitations since it was filed more than 2
years after the date of accrual, September 17, 2011.
2. Two Year Statute of Limitations is Absolute
Notwithstanding the fact that Plaintiff's Pre-Suit Authorization was defective and
insufficient to toll the statute, even had it appropriately tracked the language of the statute
and included all of Plaintiff's medical providers, so as to trigger the 75 day tolling period,
Plaintiff's case would still be time-barred since he filed 2 years and 76 days after Dr. Botla
treated Plaintiff (the 2 years and 75 days fell on Sunday, March 2, 2014). Chapter 74
10
provides an absolute two year statute of limitations that applies "notwithstanding any other
law," such that the deadline cannot be extended even if, as here, it falls on a weekend.
Section 74.251 sets forth the applicable statute of limitations in health care liability
claims, stating in no uncertain terms that the statute of limitations is absolute:
"Notwithstanding any other law . . . no health care liability claim may be commenced
unless the action is filed within two years . . ." TEX. Civ. PRAC. & REM. CODE § 74.251(a).
The Texas Supreme Court has repeatedly held that Section 74.251(a) imposes an absolute
2 year statute of limitations. See Diaz v. Westphal, 941 S.W.2d 96, 99 (Tex. 1997).
Moreover, Chapter 74 also provides that "[i]n the event of a conflict between [Chapter 74]
and another law, including a rule of procedure or evidence or court rule, this chapter controls
to the extent of the conflict." TEX. Civ. PRAC. & REM. CODE § 74.002. Thus, the absolute
2 year statute of limitations applies even if another statute or rule of procedure would alter,
interrupt, toll, or postpone the running of the statute of limitations in a claim not governed by
Chapter 74. See Molinet v. Kimbrell, 356 S.W.3d 407, _ (Tex. 2011) (absolute 2 year
limitations period of Section 74.251(a) prevailed over Responsible Third Party Statute that
allowed plaintiffs to sue parties after the expiration of the statute of limitations if they were
named a responsible third party by another defendant).
Therefore, notwithstanding any other law that would toll the statute of limitations
when the last day of the limitations period falls on a weekend, even if a sufficient
authorization had been served, the limitations period expired on March 2, 2014, 1 day before
Plaintiff first filed suit against Dr. Botla. Plaintiff's cause of action against Dr. Botla is
therefore time-barred and should be dismissed with prejudice.
11
V.
CONCLUSION & PRAYER
WHEREFORE, PREMISES CONSIDERED, Dr. Botla respectfully prays that this
Court grant his Motion for Summary Judgment as to all claims and causes of action
against him brought by Plaintiff, enter summary judgment that Plaintiff take nothing by
this suit, and sever Plaintiff's cause(s) of action against Dr. Botla so that the judgment will
be final. Dr. Botla further prays for such other and further relief to which he may be justly
entitled.
Respectfully submitted,
Is/ Nicki K. Elgie
BRETT B. ROWE
State Bar No. 17331750
NICKI K. ELGIE
State Bar No. 24069670
EVANS, ROWE & HOLBROOK, P.C.
10101 Reunion Place, Suite 900
San Antonio, Texas 78216
Direct Line: (210) 384-3271
Facsimile: (210) 340-6664
Email: bbrowe(a'evans-rowe.com
Email: nelqieevans-rowe.com
ATTORNEYS FOR DEFENDANT,
RAVI BOTLA, M.D.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing motion has been sent,
in accordance with the Texas Rules of Civil Procedure on this 14th day of August, 2014:
by facsimile and eService to:
George W. Mauze, II
Mauze Law Firm
2632 Broadway, Suite 401S
San Antonio, Texas 78215
Telecopier: (210) 354-3909
Email: gmauzeAmauzelawfirm.com
12
W. Richard Wagner
Wagner Cario, LLP
7718 Broadway
San Antonio, Texas 78209
Telecopier: (210) 979-9141
Email: rwagnerwagnercario.com
/s/ Nicki K. Elgie
BRETT B. ROWE / NICKI K. ELGIE
CAUSE NO. 2013-CI-19135
SALVADOR DEL TORO, JR. IN THE DISTRICT COURT
vs. 131ST JUDICIAL DISTRICT
GERARDO E. CARCAMO, M.D. AND
RAVI BOTLA, M.D. BEXAR COUNTY, TEXAS
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND FOR SEVERANCE
OF DEFENDANT RAVI BOTLA, M.D.
On this day came on to be heard the Motion for Summary Judgment of Defendant
Ravi Botla, M.D. The Court, having considered the Motion, pleadings timely filed, the
summary judgment evidence, and argument of counsel, hereby rules that said motion is
meritorious and should be in all things GRANTED because Plaintiff filed his lawsuit
against Dr. Botla after the expiration of the statute of limitations.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiff take
nothing against Defendant Ravi Botla, M.D.; that Plaintiff's claims and causes of action
against Defendant Ravi Botla, M.D. are hereby dismissed with prejudice; that Plaintiff's
claims and causes of action against Defendant Ravi Botla, M.D. are hereby severed from
all other causes of action alleged in Plaintiff's Second Amended Petition; and that the
severed causes of action shall be and are hereby assigned the separate cause number
of . All remaining causes of action against other
defendants shall proceed under the original cause number. All relief requested that is not
expressly granted is hereby denied.
Signed this date:
HONORABLE JUDGE PRESIDING
---
2013-C1-19135 DONN( P
1318T JUDICIAL DISTRICT COURT 016 1 I'
• seTiPorcopir
SALVADOR DEL TORO JR US GERARDO E CARCA
7,S1
DATE FILED: 11/20/2013
SALVADOR DEL TORO, JR. IN THE DIS/T,RIC741earkl5
V. JUDICIAL DISTRICT
GERARDO E. CARCAMO, M.D. BEXAR COUN AS
PLAINTIFF'S ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Salvador Del Toro, Jr, (hereinafter referred to as "Plaintiff') and files this
petition complaining of Gerardo E. Carcamo, M.D. (hereinafter referred to as "Defendant") and for
cause of action would show unto this Honorable Court as follows:
I.
DISCOVERY CONTROL PLAN
Pursuant to Tex. R. Civ. P. 190, discovery in this case is intended to be conducted under
Level 3.
IL
PARTIES
Plaintiff, Salvador Del Toro, Jr., at all times relevant to this lawsuit, has been an individual
residing in Del Rio, Val Verde County, Texas,
Defendant, Gerardo E. Carcamo, M.D., is, and at all times relevant to this lawsuit has been, a
physician duly licensed to practice medicine in the State of Texas and resides in Bexar County,
Texas, Defendant may be served with process by certified mail, return receipt requested, to
addressee only at 414 Navarro, Suite 810, San Antonio, Texas 78205,
1
T:\Cases\Del Toro.1204\Pleadings\Petition.doox
HI.
VENUE AND JURISDICTION
This Court has jurisdiction of this cause because the damages sought are within the
jurisdictional limits of this Court. Venue is proper in Bexar County, Texas in that such is the county
in which the events giving rise to this claim occurred.
IV.
FACTUAL BACKGROUND
This lawsuit is founded upon medical negligence committed by Defendant Gerardo E.
Carcamo, M.D. On or about December 15, 2011, Mr. Del Toro was admitted to Nix Hospital after
being evaluated by Dr. James Lackey for increased lower abdominal pain, nausea, and vomiting. A
CT scan was ordered and performed, such reflecting findings of ". . a severely diseased sigmoid
colon with underlying diverticular burden and a stricture", Mr. Del Toro was referred to Nix
Hospital where he was further evaluated and assessed by Bridget K. Fiechtner, M.D. Based on Dr.
Fiechtner's assessment and CT scan findings, Mr. Del Toro was admitted for further treatment and
evaluation. On December 16, 2011, Mr. Del Toro was seen in consultation by Defendant Gerardo E.
Carcamo, M.D. Defendant Gerardo E. Carcamo recommended a colonoscopy. On the evening of„
December 17, 2011, Defendant Gerardo E. Carcamo, M.D. ordered, and Mr. Del Toro was
administered, GoLYTELY for gastrointestinal prep prior to colonoscopy. Shortly thereafter, he
began having worsening abdominal pain throughout the evening with vomiting, On December 18,
2011 at approximately 5:00 o'clock a.m., Mr. Del Toro had worsening and change in the quality of
his pain. He was sent emergently for a CT of the abdomen and pelvis which revealed the presence of
free air consistent with perforation of a hollow viscus. Defendant Gerardo E. Carcamo, M.D. was
called and Mr. Del Toro was emergently taken to the operating room on December 18, 2011.
2
T:1Cases\Del Toro.12041PleadingsTetition.docx
Defendant Gerardo B. Carcamo, M.D. immediately performed a right hemicolectomy,
sigmoidectomy, and end-colostomy with Hartmann pouch and wound VAC placement. On
December 21, 2011, Mr. Del Toro underwent another surgery by Defendant Gerardo a Carcamo,
M.D. for washout and wound VAC change. Mr. Del Toro remained hospitalized until December 30,
2011. Thereafter, Mr. Del Toro necessitated two additional corrective surgeries.
The complications associated from the perforation of his colon caused Mr. Del Toro severe
physical pain and mental anguish, physical impairment, disfigurement, and financial losses.
Although Defendant Gerardo B. Carcamo, M.D. clearly knew of the obstruction of the colon based
on the CT findings, Defendant Gerardo E. Carcamo, M.D. ordered GoLYTELY which is
contraindicated in a patient suspected of having gastrointestinal obstruction.
V.
NEGLIGENCE OF DEFENDANT
Defendant Gerardo E, Carcarno, M.D. owed a general duty of care to Salvador Del Toro, Jr.,
to provide health care, attention and/or treatment as a reasonably prudent physician would have
under the same or similar circumstances. Such duty required that said Defendant render health care
in conformity with the minimum applicable standard of care for a person under the same or similar
circumstances as Salvador Del Toro, Jr. Said Defendant breached that duty by engaging in the
following acts and/or omissions to act, such constituting negligence:
1. failing to appropriately treat Mr. Del Toro for a severe diseased sigmoid colon with
diverticular burden and stricture;
2. failing to consider alternative surgical interventions for Mr. Del Toro who was
suspected of having a gastrointestinal obstruction;
3. ordering GoLYTELY to prepare his colon for a colonoscopy which is contraindicated
in a patient suspected of having a gastrointestinal obstruction; and
3
T: \ Cases \Del Toro.12041Pleadings1Petition.docx
4. failing to otherwise provide medical attention, care and/or treatment to a patient in
the same or similar condition in accordance with the applicable standard of care,
Such acts and/or omissions to act, whether taken singularly or collectively, constitute a direct
and proximate cause of the injuries and damages of Salvador Del Toro, Jr. for which he seeks
recovery.
VI.
DAMAGES
As a direct and proximate cause of the negligence of Defendant Gerardo E. Carcamo, M.D.,
Salvador Del Toro, Jr. has suffered injuries, including severe physical and mental pain and anguish
and disfigurement, which based upon a reasonable degree of medical probability, he will continue to
suffer for many years in the future, if not for the balance of his natural life. Additionally, Mr, Del
Toro suffered physical impairment and a loss of enjoyment of life which, based upon a reasonable
degree of medical probability, he will continue to suffer in the future. Furthermore, he has sustained
a loss of income and/or loss wage earning capacity. As a result of his injuries, Mr. Del Toro has also
incurred substantial reasonable medical and other health care expenses for necessary medical and
health care and, based upon a reasonable degree of medical probability, he will continue to incur
reasonable expenses for necessary medical and health care in the future.
VII.
NOTICE
Plaintiff would further show that on or about June 11, 2013, more than sixty (60) days prior
to filing of this cause, he provided written notice of said claim by certified mail return receipt
requested to Defendant Gerardo E. Carcamo, M.D. Plaintiff otherwise fully complied with the notice
provisions pursuant to Chapter 74.051(a) of the Texas Civil Practices & Remedies Code. A true and
4
TACaseseel Tora,12041Pleadings‘Petition.docx
correct copy of said notice is attached hereto marked as Exhibit "A" and is incorporated herein by
reference for all purposes.
WHEREFORE, PREMISES CONSIDERED, Plaintiff Salvador Del Toro, Jr. respectfully
prays that Defendant Gerardo E. Carcamo, M.D. be cited to appear and answer herein and that, upon
final trial, Plaintiff have and recover judgment in his favor against Defendant for the following:
1. actual damages within the jurisdictional limits of this Court;
2. pre-judgment and post-judgment interest at the maximum rate allowed by law;
3. costs of suit; and
4. such other and further relief at law or in equity, general or special, to which Plaintiff
may be justly entitled.
Respectfully submitted,
MAUZE LAW FIRM
2632 Broadway, Suite 401S
San Antonio, Texas 78215
Telephone: 210,225.6262
Facsimile: 210.354,3909
---1
,forge W. Matte, II
TBC #13238800
ATTORNEY FOR PLAINTIFF
TACases\Del Toro.12041Pleadings\Petition.docx
MAUZt LAW FOR
GEORGE W. MAUZE, II, ATTORNEY 2632 BROADWAY
SUITE 401 South
SAN ANTONIO, TEXAS 78215
TELEPHONE 210.225,6282
FACSIMILE 210,354,3908
EMAIL: gmauzeemauzelawfirm.Eom
WWW.MAUZEIAWFIRM,COM
June 11, 2013
PERSONAL CONFIDENTIAL CMR]RR #7012-3050-0002-3901-1372
Gerardo E. Camino, M.D.
414 Navarro, Suite 810
San Antonio, TX 78205
Re: Salvador Del Toro, fr.
Dear Dr. Carcamo:
Please be advised that our law firm has been retained by Salvador Del Toro, Jr. to
represent him in any and all claims he may have against you arising from the facts stated herein.
.On or about December 15, 2011, Mr. Del Toro was admitted to Nix Hospital after being
evaluated by Dr. James Lackey with the Riverwalk Clinic for increased lower abdominal pain,
nausea, and vomiting. After a CT scan obtained by the Riverwalk Clinic showed findings of ". .
. a severely diseased sigmoid colon with underlying diverticular burden and a stricture," he was
referred to Nix Hospital where he was further evaluated and assessed by Bridget K. Fiechtner,
M.D. Based on Dr. Fiechtner's assessment and CT scan findings, Mr. Del Toro was admitted for
further treatment and evaluation and discussed the patient's case with you. On December 16,
2011 Mr. Del Toro was seen in consultation by you. On the evening of December 17, 2011, you
ordered and Mr: Del Toro was given GoLYTELY for gastrointestinal prep prior to colonoscopy.
Shortly thereafter, he began having worsening abdominal pain throughout the evening with
vomiting. On December 18, 2011 at approximately 5:00 o'clock a.m., Mr. Del Toro had
worsening and change in the quality of his pain. He was sent emergently for a CT of the
abdomen and pelvis which revealed the presence of free air consistent with perforation of a
hollow viscus. You were called and Mr. Del Toro was emergently taken to the operating room
on December 18, 2011. Due to the perforation of his colon, you immediately performed a right
hemicolectomy, sigmoidectomy, and end-colostomy with Hartmann pouch and wound VAC
placement. On December 21, 2011, Mr. Del Toro underwent another surgery by you for
washout and wound VAC change. Mr. Del Toro remained hospitalized until December 30,
2011. Since then, Mr. Del Toro has necessitated frequent medical attention, necessitated and
undergone two additional corrective surgeries.
The complications associated from the perforation of his colon which you "expected",
have caused him severe pain and mental anguish, severe discomfort, disfigurement, and financial
hardship. Although, you clearly knew of his partial obstruction in his colon based on the CT
findings, you ordered GoLYTELY which is contraindicated in a patient suspected of having
gastrointestinal obstruction. You further state in your December 18, 2011, operative report, that
"Unfortunately he was unable to have a bm 'as expected' and he perforated.".
Dr. Carcamo
June 11, 2013
Page 2
The foregoing acts and omissions to act constitute negligence. As a result of such
negligence, Mr. Del Toro has suffered severe medical complications associated with his
perforated colon.
In accordance with Chapter 74.051(a) of the Texas Civil Practices & Remedies Code, this
letter constitutes your sixty (60) days notice that Salvador Del Toro, Jr. intends to assert health
care liability claims against you. If this matter is not resolved within sixty (60) days, then a
lawsuit will be filed.
In an effort to settle this claim without the necessity of filing a lawsuit, my client hereby
tenders an offer of settlement to you in the amount of Eight Hundred Thousand Dollars
($800,000.00), such consisting of $250,000.00 for noneconomic damages plus economic
damages including loss of income, and health care expenses in the amount of $550,000.00.
Attached hereto is a release for medical records in accordance with §74.052 of the Texas
Civil Practice & Remedies Code. Additionally, please accept this letter as our request for copies
of any and all medical records, diagnostic studies, whether digital, or film. Enclosed herewith is
a HIPAA release authorizing yOu to provide true, correct, and complete copies of same.
The standard professional liability insurance policy requires that the insured promptly
give the insurance carrier notice of any claim. If you or your insurance carrier wish to discuss an
amicable and expedient resolution of this claim, then please do not hesitate to give me a call.
Very truly yours,
George W. Mauze/ri
GWM/ag
enclosures
xc: Mr. Salvador Del Toro, Jr.
U.S. Postal Service-,
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FILED
4/8/2014 2:17:44 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Brenda Carrillo
CAUSE NO: 2013-CI-19135
SALVADOR DEL TORO, JR. IN THE DISTRICT COURT
V. 131st JUDICIAL DISTRICT
GERARDO E. CARCAMO, M.D. AND
RAVI BOTLA, M.D. BEXAR COUNTY, TEXAS
PLAINTIFF'S SECOND AMENDED ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Salvador Del Toro, Jr. (hereinafter referred to as "Plaintiff') and files this
Second Amended Original Petition complaining of Gerardo E. Carcamo, M.D. (hereinafter referred
to as "Defendant Carcamo") and Ravi Botla, M.D. (hereinafter referred to as "Defendant
Botla")(hereinafter collectively referred to as "Defendants") and for cause of action would show unto
this Honorable Court as follows:
I.
DISCOVERY CONTROL PLAN
Pursuant to Tex. R. Civ. P. 190, discovery in this case is intended to be conducted under
Level 3.
II.
PARTIES
Plaintiff, Salvador Del Toro, Jr., at all times relevant to this lawsuit, has been an individual
residing in Del Rio, Val Verde County, Texas.
Defendant, Gerardo E. Carcamo, M.D., is, and at all times relevant to this lawsuit has been, a
physician duly licensed to practice medicine in the State of Texas and resides in Bexar County,
Texas. Said Defendant has appeared and answered herein.
1
TACases\Del Toro.1204\Pleadings\Petition-AM2.docx
Defendant, Ravi Botla, M.D., is, and at all times relevant to this lawsuit has been, a physician
duly licensed to practice medicine in the State of Texas and resides in Bexar County, Texas. Said
Defendant has appeared and answered herein.
HI.
VENUE AND JURISDICTION
This Court has jurisdiction of this cause because the damages sought are within the
jurisdictional limits of this Court. Venue is proper in Bexar County, Texas in that such is the county
in which the events giving rise to this claim occurred,
IV.
FACTUAL BACKGROUND
This lawsuit is founded upon medical negligence committed by Defendants.
On or about December 15, 2011, Mr. Del Toro presented himself to Dr, James Lackey for
increased lower abdominal pain for 3 — 4 days, nausea, and vomiting. He was fatigued and had not
been eating or taking many fluids. He had a history of diverticulitis and hospitalizations for acute
diverticulitis, the most recent approximately 1 month prior. A CT scan was ordered and performed,
such reflecting findings of ". . a severely diseased sigmoid colon with underlying diverticular
burden and a stricture". Mr. Del Toro was referred to Nix Hospital where he was further evaluated
and assessed by Bridget K. Fiechtner, M.D. Dr. Fiechtner noted he was in mild distress with pain,
his abdomen was distended, and bowel sounds were hypoactive. She reviewed the CT scan and
noted the stricture is of particular concern because it appears to be partially obstructing the colon.
Based on Dr. Fiechtner's assessment and CT review, Mr. Del Toro was admitted for further
treatment and evaluation. On December 16, 2011, Mr. Del Toro was seen in consultation by
Defendant Carcamo who recommended a plan for surgery — either laparoscopic or possible open
2
TACases\Del Toro.1204\PleadingsTetition-AM2,docx
colon resection with possible colostomy placement. Mr. Del Toro agreed to the surgery but wanted
it performed by a surgeon in Austin who had previously performed surgeries on family members.
After the hospital inquired with the surgeon in Austin and discovered he would not be available until
Monday, Mr. Del Toro requested surgery that day by Defendant Carcamo. Defendant Carom had
left the hospital already and informed the nursing staff that he would see Mr. Del Toro the next
morning. The next morning, Defendant Botla, a gastroenterologist, consulted with Mr. Del Toro.
He recommended a colonoscopy. Mr. Del Toro refused the colonoscopy and again expressed his
decision to proceed with the surgery recommended by Defendant Carcamo. Defendant Carcamo
spoke to Mr. Del Toro who again expressed his decision to proceed with the recommended surgery,
but Defendant Carcamo changed his plan and now recommended Mr. Del Toro proceed first with a
colonoscopy. He explained the "importance of colonoscopy" and persuaded Mr. Del Toro to
consent, Defendants consulted each other regarding the plan for a colonoscopy. Defendant Botla
ordered, and Mr. Del Toro was administered, GoLYTELY for gastrointestinal prep prior to
colonoscopy, He did not have a bowel movement after the GoLYTELY was administered. Shortly
thereafter, Mr. Del Toro began complaining of severe pain to his abdomen. Both Defendants were
notified. Mr. Del Toro's abdominal pain worsened to a scale of 10 out of 10, he began crying, and
was very upset. He suffered severe pain for the next 12 hours. A CT scan was ordered STAT the
following morning of December 18, 2011. It revealed the presence of free air, such indicative of a
perforated colon. He was emergently taken to the operating room and Defendant Carcamo
performed an exploratory laparotomy. He found a perforation in the right colon, fecal contamination
of the peritoneum which had progressed to peritonitis and sepsis, and he performed a right
hemicolectomy (necessitated because of the perforated colon from the colon prep), sigmoidectomy
3
T:\Cases\Dei Toro.1204\Pleadings\Petition-AM2.docx
(necessitated because of the diverticulitis, stricture, and obstruction), and end-colostomy with
Hartmann pouch (necessitated because of the sigmoidectomy) and wound VAC placement. On
December 21, 2011, Mr. Del Toro underwent another exploratory laparotomy, drainage of an intra-
abdominal abscess, colostomy revision, placement of wound VAC, and refill of ONQ pump. Mr.
Del Toro remained hospitalized until December 30, 2011, He was re-admitted in February 2012 and
on February 17, 2012, Dr. Carcamo performed laparoscopic adhesiolysis and a cholecystectomy.
Mr. Del Toro again was admitted to the hospital in March 2012 and Dr. Carcamo performed another
laparoscopic adhesiolysis, laparoscopic splenic flexure takedown, laparoscopic colostomy reversal,
and parastomal hernia repair.
V.
NEGLIGENCE OF DEFENDANT CARCAMO
Defendant Carcamo owed a general duty of care to Salvador Del Toro, Jr., to provide health
care, attention and/or treatment as a reasonably prudent general surgeon would have under the same
or similar circumstances. Such duty required that said Defendant. Cal-earn° render health care in
conformity with the minimum applicable standard of care for a person under the same or similar
circumstances as Salvador Del Toro, Jr. Said Defendant breached that duty by engaging in the
following acts and/or omissions to act, such constituting negligence:
failing to appropriately treat Mr. Del Toro for a severe diseased sigmoid colon with
diverticular burden, stricture, and obstruction;
2. recommending a colonoscopy which requires colon preparation when such was
contraindicated because of the suspected gastrointestinal obstruction;
3, failing to timely intervene surgically after Mr. Del Toro had a known colon
perforation, such delay resulting in severe infection and further injuries; and
4
T:\Cases\Det Toro.12041Pleadings\PetitIon-AM2.doex
4. failing to otherwise provide medical attention, care and/or treatment to a patient in
the same or similar condition in accordance with the applicable standard of care.
Such acts and/or omissions to act, whether taken singularly or collectively, constitute a direct
and proximate cause of the injuries and damages of Salvador Del Toro, Jr. for which he seeks
recovery.
VI.
NEGLIGENCE OF DEFENDANT BOTLA
Defendant Botla owed a general duty of care to Salvador Del Toro, Jr., to provide health care,
attention and/or treatment as a reasonably prudent internal medicine physician/gastroenterologist
would have under the same or similar circumstances. Such duty required that said Defendant Botla
render health care in conformity with the minimum applicable standard of care for a person under the
same or similar circumstances as Salvador Del Toro, Jr. Said Defendant breached that duty by
engaging in the following acts and/or omissions to act, such constituting negligence:
1. recommending a colonoscopy, which requires colon preparation, when it was known
that Mr. Del Toro had severe sigmoid disease, stricture, and obstruction;
2. ordering GoLYTELY to prepare his colon for a colonoscopy which is contraindicated
in a patient suspected of having a gastrointestinal obstruction; and
3. failing to otherwise provide medical attention, care and/or treatment to a patient in
the same or similar condition in accordance with the applicable standard of care.
Such acts and/or omissions to act, whether taken singularly or collectively, constitute a direct
and proximate cause of the injuries and damages of Salvador Del Toro, Jr. for which he seeks
recovery.
5
T:\Cases\Del Toro.1204\Pleadings\Petition-AM2.docx
VII.
DAMAGES
As a direct and proximate cause of the negligence of Defendants, Salvador Del Toro, Jr. has
suffered injuries, including severe physical and mental pain and anguish which based upon a
reasonable degree of medical probability, he will continue to suffer for many years in the future, if
not for the balance of his natural life. Additionally, Mr, Del Toro suffered physical impairment and a
loss of enjoyment of life which, based upon a reasonable degree of medical probability, he will
continue to suffer in the future, Furthermore, he has sustained a loss of income and/or loss wage
earning capacity. As a result of his injuries, Mr. Del Toro has also incurred substantial reasonable
medical and other health care expenses for necessary medical and health care and, based upon a
reasonable degree of medical probability, he will continue to incur reasonable expenses for necessary
medical and health care in the future.
VIII.
NOTICE
Plaintiff would further show that on or about June 11, 2013, more than sixty (60) days prior
to filing of this cause, he provided written notice of said claim by certified mail return receipt
requested to Defendant Carcamo. Plaintiff otherwise fully complied with the notice provisions
pursuant to Section 74.051(a) of the Texas Civil Practices & Remedies Code. A true and correct
copy of said notice is attached hereto marked as Exhibit "A" and is incorporated herein by reference
for all purposes.
The statute of limitations prohibited the providing of written notice of said claim to
Defendant Botla.
6
MasesTel Toro.12041PIeadings\Petition•AM2.docx
WHEREFORE, PREMISES CONSIDERED, Plaintiff Salvador Del Toro, Jr. respectfully
prays that, upon final, trial, Plaintiff have and recover judgment in his favor against Defendants,
jointly and severally, for the following:
1, actual damages within the jurisdictional limits of this Court;
2, pre-judgment and post-judgment interest at the maximum rate allowed by law;
3. costs of suit; and
4. such other and further relief at law or in equity, general or special, to which Plaintiff
may be justly entitled.
Respectfully submitted,
MAUZE LAW FIRM
2632 Broadway, Suite 401S
San Antonio, Texas 78215
Telephone: 210,225.6262
Facsimile: 210.354.3909
eorge W. Mauz
TBC #13238800
ATTORNEY FOR PLAINTIFF'
CERTIFICATE OF SERVICE
I hereby certify that on this 8th day of April, 2014, a true and correct copy of Plaintiff's
Second Amended Original Petition has been sent by via fax and regular mail to:
Mr. W. Richard Wagner, Esq. Mr, Brett B. Rowe, Esq.
Wagner Cario, LLP Evans, Rowe & Holbrook, P,C,
7718 Broadway, Suite 10.0 10101 Reunion Place; Suite 900
San Antonio, TX 78209 San Antonio, TX 78216
George W. Matizej
7
Masos\Del Toro.1204\Pleadings\Petition-AM2,docx
IMUZE LAW FIR
GEORGE W. MAUZE, IL ATTORNEY 2632 BROADWAY
SUITE 401 South
SAN ANTONIO, TEXAS 78215
TELEPHONE 210.225.6262
FACSIMILE 210.364.3903
EMAIL: pmauze@mauzelawfkm.com
ONW.MAUZELAWFIRTYLCOM
June 11, 2013
PE SONAL & CONFIDENTIAL CMRIRR #7012-3050-0002-3901-1372
Gerardo R Careamo, M.D.
414 Navarro, Suite 810
San Antonio, TX 78205
Re: Salvador Del Toro, Jr.
Dear Dr. Carcamo:
Please be advised that our law firm has been retained by Salvador Del Toro, Jr. to
represent him in any and all claims he may have against you arising from the facts stated herein.
On or about December 15, 2011, Mr. Del Toro was admitted to Nix Hospital after being
evaluated by Dr. James Lackey with the Riverwalk Clinic for increased lower abdominal pain,
nausea, and vomiting. After a CT scan obtained by the Riverwalk Clinic showed findings of ".
. a severely diseased sigmoid colon with underlying diverticular burden and a stricture," he was
referred to Nix Hospital where he was further evaluated and assessed by Bridget K. Fiechtner,
M.D. Based on Dr. Fiechtner's assessment and CT scan findings, Mr. Del Toro was admitted for
further treatment and evaluation and discussed the patient's case with you. On December 16,
2011 Mr. Del Toro was seen in consultation by you. On the evening of December 17, 2011, you
ordered and Mr. Del Toro was given GoLYTELY for gastrointestinal prep prior to colonoscopy.
Shortly thereafter, he began having worsening abdominal pain throughout the evening with
vomiting. On December 18, 2011 at approximately 5:00 o'clock a.m., Mr. Del Toro had
worsening and change in the quality of his pain. He was sent emergently for a CT of the
abdomen and pelvis which revealed the presence of free air consistent with perforation of a
hollow viscus. You were called and Mr. Del Toro was emergently taken to the operating room
on December 18, 2011. Due to the perforation of his colon, you immediately performed a right
hemicolectorny, sigmoidectomy, and end-colostomy with Hartmann pouch and wound VAC
placement. On December 21, 2011, Mr. Del Toro underwent another surgery by you for
washout and wound VAC change. Mr. Del Toro remained hospitalized until December 30,
2011. Since then, Mr. Del Toro has necessitated frequent medical attention, necessitated and
undergone two additional corrective surgeries.
The complications associated from the perforation of his colon which you "expected",
have caused him severe pain and mental anguish, severe discomfort, disfigurement, and financial
hardship. Although, you clearly knew of his partial obstruction in his colon based on the CT
findings, you ordered GoLYTELY which is contraindicated in a patient suspected of having
gastrointestinal obstruction. You further state in your December 18, 2011, operative report, that
"Unfortunately he was unable to have a bin 'as expected' and he perforated.",
Dr. C6rcamo
June 11, 2013
Page 2
The foregoing acts and omissions to act constitute negligence. As a result of such
negligence, Mr. Del Toro has suffered severe medical • complications associated with his
perforated colon,
In accordance with Chapter 74.051(a) of the Texas Civil Practices & Remedies Code, this
letter constitutes your sixty (60) days notice that Salvador Del Toro, Jr. intends to assert health
care liability claims against you. If this matter is not resolved within sixty (60) days, then a
lawsuit will be filed.
In an effort to settle this claim without the necessity of filing a lawsuit, my client hereby
tenders an offer of settlement to you in the amount of Eight Hundred Thousand Dollars
($800,000.00), such consisting of $250,000.00 for noneconomic damages plus economic
damages including loss of income, and health care expenses in the amount of $550,000.00,
Attached hereto is a release for medical records in accordance with §74.052 of the Texas
Civil Practice & Remedies Code. Additionally, please accept this letter as our request for copies
of any and all medical records, diagnostic studies, whether digital, or film. Enclosed herewith is
a HIPAA release authorizing yOu to provide true, correct, and complete copies of same,
The standard professional liability insurance policy requires that the insured promptly
give the insurance carrier notice of any claim. If you or your insurance carrier wish to discuss an
amicable and expedient resolution of this claim, then please do not hesitate to give me a call.
Very truly yours,
/ •
(
George W. Mauz0I
GWM/ag
enclosures
xc: Mr. Salvador Del Toro, Jr.
otal Sertncer.
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AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION
PURSUANT TO TEX. CIV, FRAC, & REM. CODE CHAPTER 74 74,052
I, Salvador Del Toro, Jr. (name of patient or authorized representative), hereby
authorize Gerardo E. Carcamo, M.D. (name of physician or other health care provider to
whom the notice of health care claim is directed) to obtain and disclose (within the
parameters set out below) to Mauz6 Law Firm the protected health information
described below for the following specific purposes:
1. To facilitate the investigation and evaluation of the health care claim described in
the accompanying Notice of Health Care Claim; or
2, Defense of any litigation arising out of the claim made the basis of the
accompanying Notice of Health Care Claim,
B, The health information to be obtained, used, or disclosed extends to and includes the
verbal as well as the written and is specifically described as follows:
1, The health information in the custody of the following physicians or health care
providers who have examined, evaluated, or treated Salvador Del Toro, Jr,
(patient) in connection with the injuries alleged to have been sustained In
connection with the claim asserted in the accompanying Notice of Health Care
Claim:
Nix Hospital, 414 Navarro, San Antonio, TX 78205
Gerardo E, Carcamo, M.D., 414 Navarro, Suite 830, San Antonio, TX 78205
This authorization shall extend to any additional physicians or health care
providers that may in the future evaluate, examine, or treat Salvador Del Toro, Jr,
(patient) for injuries alleged in connection with the claim made the basis of the
attached Notice of Health Care Claim; and
2, The health information in the custody of the following physicians or health care
providers who have examined, evaluated, or treated Salvador Del Toro, Jr.
(patient) during a period commencing five years prior to the incident made the
basis of the accompanying Notice of Health Care Claim:
Riverwalk Clinic, 414 Navarro, Suite 809, San Antonio, TX 78205
Val Verde Regional Medical Center, 801 Bedell Avenue, Del Rio, TX 78840
Antonio Cadena, M,D., 2201 North Bedell, Suite A, Del Rio, TX 78840
C. Excluded Health Information—the following constitutes a list of physicians or health care
providers possessing health care information concerning Salvador Del Toro, Jr. (patient)
to which this authorization does not apply because I contend that such health care
information is not relevant to the damages being claimed or to the physical, mental, or
emotional condition of Salvador Del Toro, Jr. (patient) arising out of the claim made the
basis of the accompanying Notice of Health Care Claim: NONE.
D. The persons or class of persons to whom the health information of Salvador Del Toro, Jr.
(patient) will be disclosed or who will make use of said information are:
1. Any and all physicians or health care providers providing care or treatment to
Salvador Del Toro, Jr. (patient);
2. Any liability insurance entity providing liability Insurance coverage or defense to
any physician or health care provider to whom Notice of Health Care Claim has
been given with regard to the care and treatment of Salvador Del Toro, Jr,
(patient);
• • 3. Any oonaulting or testifying experts employed by or on behalf of Gerardo E.
Carcamo, M.D. (name of physician or health care provider to whom Notice of
Health Care Claim has been given) with regard to the matter set out in the Notice
of Health Care Claim accompanying this authorization;
4. Any attorneys (including secretarial, clerical, or paralegal staff) employed by or on
behalf of Gerardo E. Carcamo, M.D. (name of physician or health care provider
to whom Notice of Health Care Claim has been given) with regard to the matter
set out in the Notice of Health Care Claim accompanying this authorization; and
5, Any trier of the law or facts relating to any suit filed seeking damages arising out of
the medical care or treatment of Salvador Del Toro, Jr. (patient).
E, This authorization shall expire upon resolution of the claim asserted or at the conclusion
of any litigation instituted in connection with the subject matter of the Notice of Health
Care Claim accompanying this authorization, whichever occurs sooner,
F. I understand that, without exception, I have the right to revoke this authorization in
writing. I further understand the consequence of any such revocation as set out in
Section 74.052, Civil Practice and Remedies Code.
G. I understand that the signing of this authorization is not a condition for continued
treatment, payment, enrollment, or eligibility for health plan benefits.
H, I understand that information used or disclosed pursuant to this authorization may be
subject to redisclosure by the recipient and may no longer be protected by federal HIPAA
privacy regulations.
Signature o 1.
Date;
Sa ado 'el Toro, Jr.
Patient's Name: Salvador Del Toro, Jr,
Patient's D,0.13.: 12.25.1973
Patient's SSW 451.77.9676
AUTHORIZATION FORM RELEASE OF PROTECTED HEALTH INFORMATION
A. I, Salvador Del Toro, Jr., hereby authorize Gerardo E. Carcamo, M.D. to obtain and
disclose to Mauze Law Firm (within the parameters set out below) the protected health
information described below for the following specific purposes
1, To facilitate the investigation and evaluation of my potential claim for damages arising
from injuries I have sustained,
B, The health information to be obtained, used, or disclosed extends to and includes the verbal
as well as the written and is specifically described as follows:
1. The health information in the custody of the following physicians or health care
providers who have examined, evaluated or treated Salvador Del Toro, Jr. in
connection with the injuries alleged to have been sustained.
C. The persons or class of persons to whom the health information of
Salvador Del Toro, Jr, will be disclosed or who will make use of said Information are;
1. Any and all physicians or health care providers providing care or treatment to
Salvador Del Toro, Jr.;
2. Any liability insurance entity providing liability insurance coverage or defense to any
person hereafter named as Defendant;
3, Any consulting or testifying experts employed by or on behalf of any person hereafter
named as a Defendant;
4, Any attorneys (including secretarial, clerical, or paralegal staff) employed by or on
behalf of any person hereafter named as a Defendant; and
5. Any trier of the law or facts relating to any suit filed seeking damages arising out of
the injuries and damages sustained by Salvador Del Toro, Jr,.
D, I understand that, without exception, I have the right to revoke this authorization in writing. I
further understand the consequence of any such revocation as set out in Section 74052,
Civil Practice and Remedies Code,
E, I understand that the signing of this authorization is not a condition for continued Treatment,
payment, enrollment, or eligibility for health plan benefits,
I understand that information used or disclosed pursuant to this authorization may be subject
to redisciosure by the recipient and may no longer be protected by federal HIPAA privacy
regulations,
0, This authorization will expire 12 months from the date of execution by the representative of
the patient.
H. Copies of this Authorization shall be deemed the same as the original. Also, facsimile
copies or electronic versions of a signature of any party shall be deemed the same as the
original.
Signature tient:
Date:
Salve :6- ',el Toro, Jr,
Name of Patient: Salvador Del Toro, Jr.
Patient's 110,13.: 12.25.1973
Patient's SSN: 451.77.9676
• Miami
CAUSE NO: 2013-CI-19135
SALVADOR DEL TORO, JR. IN THE DISTRICT COURT
V. 131't JUDICIAL DISTRICT
GERARDO E. CARCAMO, M.D. AND
RAVI 130TLA, M.D. BEXAR COUNTY, TEXAS
PLAINTIFF'S OBJECTIONS AND RESPONSES TO DEFENDANT RAVI BOTLA, M.D.'S
FIRST REQUEST FOR PRODUCTION
TO: Defendant Ravi Botla, M.D.,
by and through his attorney of record,
Mr. Brett B. Rowe, Esq.
Evans, Rowe & Holbrook, P.C.
10101 Reunion Place, Suite 900
San Antonio, Texas 78216
COMES NOW Plaintiff Salvador Del Toro, Jr, ("Plaintiff'), and serves his Objections and
Responses to Defendant Ravi Botla, M.D,'s First Request for Production.
Respectfully submitted,
MAUZE LAW FIRM
2632 Broadway, Suite 401S
San Antonio, Texas 78215
Tel: 210.225.6262
Fax: 210.354,3909
G rge W. Mauze,
State Bar No. 132 8800
ATTORNEY FOR PLAINTIFF
TACases\Del Toro.1204\DiscoverABo la) Resp•RFP.docx Page 1
CERTIFICATE OF SERVICE
hereby certify that on day of May, 2014, a true and correct copy of Plaintiff's
Objections and Responses to Defendant Ravi Botla, M.D.'s First Request for Production has been
sent by certified mail, return receipt requested, to:
Mr. W. Richard Wagner, Esq. Mr. Brett B. Rowe, Esq.
Wagner Cario, LLP Evans, Rowe & Holbrook, P.C.
7718 Broadway, Suite 100 10101 Reunion Place, Suite 900
San Antonio, TX 78209 San Antonio, TX 78216
Geo W. Mauze,
TACases \Del Toro.1204\DIscovery\(E3otla) Resp-RFP.docx Page 2
Plaintiff objects to the instructions and definitions to the extent that they would purport to alter, vary,
or impose different obligations upon Plaintiff than those provided by law.
Plaintiff further objects to the definition of "documents" because such is overly broad and
compliance with Defendant's discovery requests would be unduly burdensome.
REQUEST FOR PRODUCTION NO. 1: Please produce a copy of your birth certificate.
RESPONSE:
The following responsive document is attached hereto:
1. Birth Certificate of Salvador Del Toro,. Jr,, bate-stamped MLF/Del Toro.0043.
REQUEST FOR PRODUCTION NO. 2: Please produce a copy of your social security card. In lieu
of your social security card, you may identify the information that would appear on this card
including: your full legal name and your social security number,
RESPONSE:
The following responsive document is attached hereto:
1. Social Security card of Salvador Del Toro, Jr., bate-stamped MLF/Del Toro.0015.
REQUEST FOR PRODUCTION NO. 3: Please produce a copy of your driver's license.
RESPONSE:
The following responsive document is attached hereto:
1. Texas Commercial Driver's License of Salvador Del Toro, Jr., bate-stamped
MLF/Del Toro .0016.
REQUEST FOR PRODUCTION NO. 4: Please produce copies of any diplomas or documentation
reflecting accomplishment of educational programs including any vocational educational training or
certifications. In lieu of this information, you may identify the information contained in such
documents including: the name of the institution, the degree or certificate obtained, and the date the
degree or certificate was obtained.
RESPONSE:
In lieu of producing the responsive documents, Plaintiff would respond:
Obtained GED in 1992 from Eagle Pass High School.
Obtained Commercial Driver's License training in 2006 from Star Career Training.
IROMOVAWMaNIO04,6
TACases\Del Toro,1204DiseoverASo la) Resp-RFP.docx Page 3
REQUEST FOR PRODUCTION NO, 5: For any consulting expert whose impressions and opinions
have been reviewed by a testifying expert, please provide the following:
1. All documents reflecting the expert's name, address, and phone number;
2. All documents reflecting the subject matter on which the expert opined;
3, All documents reflecting the facts known by the expert that relate to or form the basis of the
expert's mental impressions and opinions formed or made in connection with the case in
which the discovery is sought, regardless of when and how the factual information was
acquired;
4. All documents reflecting the expert's mental impressions and opinions formed or made in
connection with the case in which discovery is sought, and any methods used to derive them;
5, All documents, tangible things, reports, models, or data compilations that have been provided
to, reviewed by, or prepared by or for the expert;
6. The expert's current resume and bibliography.
RESPONSE:
Plaintiff objects to said discovery request because pursuant to Rule 195.1 T.R.C.P.
information regarding designated testifying experts is only available through a request for
disclosure pursuant to Rule 194 of the T.R.C.P.
Subject to said objection, and without waiving same, none.
REQUEST FOR PRODUCTION NO. 6: Please produce a copy of each of your Marriage licenses
and copies of any divorce decrees.
RESPONSE:
The following responsive document is attached hereto:
1. Marriage License of Salvador Del Toro, Jr., bate-stamped MLF/Del Toro.0017
0018.
REQUEST FOR PRODUCTION NO. 7: Please produce copies of birth certificates for each of your
children, including your natural, adopted, or stepchildren. If adopted, please provide adoption
papers.
RESPONSE:
The following responsive documents are attached hereto:
1. Birth Certificate of Jakeb Ryan Del Toro, bate-stamped MLF/Del Toro,0019;
2. Birth Certificate of Kristofer Michael Del Toro, bate-stamped MLF/Del Toro.0020;
3. Birth Certificate of Emily Nycole Del Toro, bate-stamped MLF/Del Toro.0021; and
4. Birth Certificate of Megan Michelle Del Toro, bate-stamped MU/Del Toro.0022,
TACases \ Del Toro, 1204Discovery1(Botla) RespaFP.doex Page 4
REQUEST FOR PRODUCTION NO, 8: If you were not born in the United States, please produce
copies of any papers authorizing your residence or work in the United States.
RESPONSE:
N/A.
REQUEST FOR PRODUCTION NO. 9: If you are claiming past lost wages, future lost wages,
diminishment of earning capacity or other employment related benefits, then please produce copies
of all federal income tax returns and attached schedules filed by you or on your behalf within the past
ten years.
RESPONSE:
Plaintiff objects to said discovery request as overly broad.
Plaintiff further object to providing income tax returns filed by Plaintiff as such are not
relevant and/or reasonably calculated to lead to the discovery of admissible evidence, is
harassing, and such request constitutes an invasion of Plaintiff's personal, privacy, and
constitutional rights,
Subject to said objections, and without waiving same, the following responsive documents
are attached hereto:
1. IRS, Wage and Income Transcript/Form W-2 Wage and Tax Statements for 2009,
2010, 2011, 2012, and 2013, bate-stamped MLF/Del Toro.0044 - 0049.
REQUEST FOR PRODUCTION NO. 10: If you are claiming to have incurred past loss of wages or
income, or future loss of wages or income, or diminishment in your current or future earning
capacity, then please produce copies of all employment applications made by you or on your behalf
within the past ten years. If you do not have copies, you are specifically requested to contact those
persons with whom you have made application and ask for a copy of your application. This request
includes applications made since the date of the incident which is the subject of this lawsuit.
RESPONSE:
Plaintiff objects to said discovery request as overly broad and beyond the scope of
permissible evidence.
Plaintiff objects to said discovery request because the information sought is not relevant or
reasonably calculated to lead to the discovery of admissible evidence.
Mases1Del Toro,12C4DiscoverABotl a) Resp-RFP,docx Page 5
REQUEST FOR PRODUCTION NO. 11: If you are claiming any physical injury, please produce
copies of all health, life or disability insurance applications made by you or on your behalf within the
past ten years, including those made after the incident which is the subject of this lawsuit.
RESPONSE:
Plaintiff objects to said discovery request because the information sought is not relevant or
reasonably calculated to lead to the discovery of admissible evidence, and an invasion of his
personal and/or property rights.
Subject to said objection, and without waiving same, none.
REQUEST FOR PRODUCTION NO. 12: Please produce copies of all medical expenses, invoices,
charges and any other bills or expenses which you claim were incurred as result of the incident which
is the subject of this lawsuit or for which you claim this defendant is legally responsible.
RESPONSE:
The following responsive documents have previously been produced:
1. medical expenses from Nix Hospital for admissions 12.15.11, 2.17.12, 3.15.12, and
3.30.12, bate-stamped MLF/Del Toro/ME - Nix Hosp.0001 - 0039.
REQUEST FOR PRODUCTION NO. 13: Please produce any paper or writing or document which
you claim is evidence of any claim you are making for lost income, lost wages, or loss of earning
capacity.
RESPONSE:
Plaintiff objects to said discovery request as overly broad. Subject to said objection, and
without waiving same:
The following responsive documents have previously been produced:
1. medical records from Nix Hospital by affidavit, bate-stamped MLF/Del Toro/Nix
Hosp.0001 - 0899;
2. medical records from James Lackey, M.D./Alamo Medical Group by affidavit, bate-
stamped (MLF)Lackey/ACIV1G.001 - 009; and
3. medical records of Gerardo Carcamo, M.D., bate-stamped (MLF)Carcamo.001 - 011.
The following responsive documents are contained on the CD attached hereto:
4. medical records from Val Verde Regional Medical Center by affidavit, bate-stamped
(MLF) Val Verde Hosp.0001 - 0243; and
5. medical records from Antonio Cadena, M.D./Cadena Family Practice by affidavit,
bate-stamped (MLF) MR - Cadena. 0001 - 0044.
TACases\ Del Toro.12040iscovery\(Botla) RespaFP.docx Page 6
The following responsive documents are attached hereto:
6. IRS, Wage and Income Transcript/Form W-2 Wage and Tax Statements for 2009,
2010, 2011, 2012, and 2013, bate-stamped MLF/Del Toro.0044 0049.
REQUEST FOR PRODUCTION NO. 14: If you have been a party to any criminal, civil or workers
compensation proceedings within the past ten years, then please produce copies of all pleadings or
papers filed on your behalf in each proceeding.
RESPONSE:
N/A.
REQUEST FOR PRODUCTION NO. 15: Please produce each statement made by, adopted by or
otherwise attributable to this Defendant. The term "statement" includes tape recordings, writings,
video recordings, documents or any recorded material allegedly made by, adopted by or attributable
to this Defendant. For a further and additional definition of "statement" you are referred to T.R.C.P.
192.3(h).
RESPONSE:
None other than those which may be contained in the medical records, pleadings, and
deposition transcripts of depositions to be taken.
REQUEST FOR PRODUCTION NO, 16: Please produce all photographs, video tapes, sound
recordings, models, drawings, illustrations, mock-ups, or reconstructions which relate to any of your
allegations of liability or negligence or which relate to any of your allegationsregarding damages.
Without limiting the scope of this request, you are specifically requested to produce each photograph
of any injury claimed by you, each "day in the life video-tape", each "this was his life before the
injury video-tape" and similar materials.
RESPONSE:
The following responsive photographs are attached hereto:
1. Nine (9) photographs of Salvador Del Toro, Jr., bate-stamped MLF/Del Toro.0023 -
0031.
REQUEST FOR PRODUCTION NO. 17: Please produce all writings or documentation which you
claim supports your claim for any expense (medical or non-medical) not previously identified by you
in your responses to these Requests for Production.
RESPONSE:
None.
T: \Cases\ Del Toro.1204DiscoverOotla) Respal,P,doex Page 7
REQUEST FOR PRODUCTION NO. 18: If you submitted any of the medical expenses for which
you now seek recovery in this lawsuit to any health, disability, life or other insurer for total or partial
payment, then please produce copies of all correspondence between you and each insurer as well as
all claim forms, proofs of loss and supporting documentation submitted to each insurer.
RESPONSE:
The following responsive documents are attached hereto:
1. Letter from Mame Law Firm to United Healthcare dated 1.20.14, bate-stamped
MLF/Del Toro.0032 - 0034;
2. Letter from UMR (United Healthcare Co.) to Mauze Law Firm dated 128.14, bate-
stamped MLF/Del Toro.0035 - 0036;
3. Letter from Optum on behalf of United Healthcare to Mauze Law Firm dated 4,1.14,
bate-stamped MLF/Del Toro.0037 - 0038; and
4. Letter from Mauze Law Firm to WebTPA, Inc. dated 2.4.14, bate-stamped MLF/Del
Toro.0039 0041.
REQUEST FOR PRODUCTION NO. 19: Please produce all correspondence, claim forms or other
documentation relating to any claim by you or on your behalf for Social Security benefits.
RESPONSE:
None.
REQUEST FOR PRODUCTION NO. 20: If you are claiming any physical injury or loss of wages or
earning capacity, past or future, then please sign the attached medical authorization form; Form
4506-Request for Copy of Tax Return (Internal Revenue Service records); SSA 3288-Consent for
Release of Information (Social Security Administration records); Authorization for Release of
Employment Records, and produce the original of each.
RESPONSE:
Plaintiff objects to signing Defendant's medical authorization form because it is
impermissibly overly broad and thereby constitutes an absolute waiver of Plaintiff's
physician/patient privilege.
Plaintiff further objects to providing income tax returns filed by Plaintiff as such are not
relevant and/or reasonably calculated to lead to the discovery of admissible evidence, and
such request constitutes an invasion of Plaintiff's personal, privacy, and constitutional rights.
Plaintiff further objects to signing Defendant's Social Security release of information
because it is impermissibly overly broad and not relevant and/or reasonably calculated to lead
to the discovery of admissible evidence.
TACases\llel Toro.1204\Discover(Bo la) RespaFP.docx Page 8
Subject to said objections, and without waiving same, the following responsive documents
are attached hereto:
1. Executed Chapter 74 Authorization to Release Health Information; and
2, Executed Authorization for Employer to Release Information,
REQUEST FOR PRODUCTION NO. 21: If you claim to have sustained any physical or mental
injury, then please produce all medical, hospital or similar records reflecting any care, service, exam
or consultation received by you from any health care provider SINCE the incident which forms the
basis of your complaint against this defendant.
RESPONSE:
The following responsive documents have previously been produced:
1. medical records from Nix Hospital by affidavit, bate-stamped MLF/Del Toro/Nix
Hosp.0001 - 0899;
2. medical records of Gerardo Carcamo, M.D., bate-stamped (MLF)Carcamo,001 - 011;
3, medical expenses from Nix Hospital for admissions 12.15.11, 2.17.12, 3.15.12, and
3.30.12, bate-stamped MLF/Del Toro/ME - Nix Hosp.0001 - 0039.
The following responsive documents are contained on the CD attached hereto:
4. medical records from Val Verde Regional Medical Center by affidavit, bate-stamped
(MLF) Val Verde Hosp.0001 - 0243; and
5, medical records from Antonio Cadena, M.D./Cadena Family Practice by affidavit,
bate-stamped (MLF) MR - Cadena. 0001 - 0044.
REQUEST FOR PRODUCTION NO. 22: If you claim to have sustained any physical or mental
injury, then please produce all medical, hospital or similar records reflecting any care, service, exam
or consultation received by you from any health care provider within ten years BEFORE the incident
which forms the basis of your complaint against this defendant.
RESPONSE:
Plaintiff objects to such discovery request insofar as it seeks medical information unrelated to
the condition complained about and, thus, is overly broad, seeks irrelevant information, seeks
information not reasonably calculated to lead to the discovery of admissible evidence, and
seeks information which is privileged pursuant to T.R.E. 509.
Without waiving the foregoing objections, and subject to same, the following responsive
documents have previously been produced:
1. medical records from James Lackey, M.D./Alamo Medical Group by affidavit, bate-
stamped (MLF)Lackey/ACMG.001 - 009.
T:\Cases\Del Toro. 204‘DiscoverNBo la) RespRFP.docx Page 9
REQUEST FOR PRODUCTION NO. 23: Please produce all notice of claim letters or similar
documents sent by you, or on your behalf to any person or organization including any doctor,
hospital or health care provider. A notice of claim letter includes any letter or document purporting
to place a person or organization on notice of a possible claim.
This request is not limited to letters to health care providers but also includes
• letters to drug companies,
• insurance companies
RESPONSE:
The following responsive document has previously been produced insofar as it is attached as
Exhibit A to Plaintiff's Second Amended Original Petition and all prior petitions:
1. Notice letter dated 6.11.13 to Gerardo Careamo, M.D.
REQUEST FOR PRODUCTION NO. 24: Please produce all letters or documents relating to any
communication by you (or on your behalf) to or from any person or organization (or the
representative of any such person or organization including the insurer, attorney or any representative
of any such person or organization) which you have ever contended could be responsible for any
injury claimed by you.
Without limiting the scope of this request, it would include all letters, demands, negotiations,
allegations or settlement related communications with potential or actual defendants or their insurers,
or attorneys. It specifically includes all communications with persons or entities or their insurance
company representatives who received Chapter 74 notice letters. It specifically includes any
communications related to agreements, commitments, or understandings between the communicants
during discovery or at trial.
RESPONSE:
The following responsive document has previously been produced insofar as it is attached as
Exhibit A to Plaintiff's Second Amended Original Petition and all prior petitions:
1. Notice letter dated 6.11.13 to Gerardo Carcarno, M.D.
The following responsive document is attached hereto:
2. Letter from American Physicians Insurance to George W. Mauze, II dated 6.18,13,
bate-stamped MLF/Del Toro.0042.
REQUEST FOR PRODUCTION NO. 25: Please produce all medical literature, articles, journals,
learned treatises, policies, procedures, books or other writings or documents (as that term is defined
herein) which your experts will use or refer to at trial or your attorney will use to cross examine any
of the witnesses.
RESPONSE:
Plaintiff objects to producing documents in regards to experts not retained by Plaintiff
including treating health care providers and Defendant's experts because the discovery
es\De1 Toro.12044DiscoverABotla) Resp-RFP,docx Page 10
responsive from nonretained treating health care providers and Defendant's retained experts
is not known to Plaintiff and/or is equally available to Defendant,
Plaintiff further objects to said discovery request because the information sought constitutes
or contains attorney work product which is exempt from discovery pursuant to T.R.C.P.
192.5,
Plaintiff further objects to said discovery request because pursuant to Rule 195.1 T.R.C.P.
information regarding designated testifying experts is only available through a request for
disclosure pursuant to Rule 194 of the T.R,C.P,
REQUEST FOR PRODUCTION NO, 26: Please produce any diary, log or similar document made
or kept by Plaintiff in connection with the incident which is the subject of this lawsuit or any of the
events following the incident through to the present day.
RESPONSE:
None.
REQUEST FOR PRODUCTION NO. 27: Please produce all writings, recordings or other things
which reflect or relate to any agreement with any party or former party to this case. This includes
settlements, partial settlements, Mary Carter agreements, hi-low agreements, guaranty agreements,
agreements regarding the use of witnesses, arguments or positions to be taken at trial, selectien of the
jury, withdrawal of witnesses, election for settlenient credits, or any other understanding or deal.
RESPONSE:
None.
REQUEST FOR PRODUCTION NO. 28: Please produce all documents or things which you
contend or suspect have been altered, modified, obliterated, destroyed or tampered with by any party
or former party to this case of any physician, hospital or health care provider.
RESPONSE:
None.
neases\Del Toro.1204Discoven),(Bo la) Resp-RFP.doex Page I I
REQUEST FOR PRODUCTION NO. 29: Please produce any communication with Medicare,
Medicaid, or any other governmental agency or entity responsible for collection of these debts. This
request specifically includes any documentation that would indicate what liens the government has
on any settlement plaintiff(s) may receive in this case. Please sign the enclosed release for Medicare
records. Please also provide a separate authorization for release of Medicaid records. (Please be
advised that plaintiff should immediately contact Medicare and Medicaid to determine the amounts
of any such liens. Settlement or a judgment cannot be funded unless and until plaintiff provides
written proof that all governmental liens have been satisfied. Mediation will also be unsuccessful
until plaintiff can prove the amounts of these government liens.)
RESPONSE:
Plaintiff objects to signing Defendant's release for Medicare records because Plaintiff is not a
Medicare recipient.
Plaintiff further objects to signing an authorization for release for Medicaid records because
Plaintiff is not a Medicaid recipient.
Subject to said objections, and without waiving same, the following responsive documents
are attached hereto:
1. Letter from Mauze Law Firm to United Healthcare dated 1.20.14, bate-stamped
MLF/Del Toro.0032 - 0034;
2. Letter from UMR (United Healthcare Co.) to Mauze Law Firm dated 3.28.14, bate-
stamped MLF/Del Toro.0035 - 0036;
3. Letter from Optum on behalf of United Healthcare to Mauze Law Firm dated 4.1.14,
bate-stamped MLF/Del Toro.0037 - 0038; and
4. Letter from Mauze Law Firm to WebTPA, Inc. dated 2.4.14, bate-stamped MLF/Del
Toro.0039 0041.
REQUEST FOR PRODUCTION NO. 30: Please produce copies of all statements of any witness or
person identified as having knowledge of relevant facts OR who may be called to testify at trial.
RESPONSE:
None other than those which may be contained in the medical records, pleadings, and
deposition transcripts of depositions to be taken,
REQUEST FOR PRODUCTION NO. 31: Please produce all trial exhibits which may be offered
into evidence or used at trial.
RESPONSE:
Plaintiff objects to said discovery request because the information sought is not within the
scope of permissible discovery because there has not been a pretrial conference pursuant to
Rule 166 T.R.C.P. or discovery control order pursuant to Rule 190.4 T.R.C.P. requiring
disclosure of this information.
T:\Cases\Del Toro. 204\DiscoverABotla) Resp-RFP oox Page 12
Plaintiff further objects to said discovery request because the information sought constitutes
or contains attorney work product which is exempt from discovery pursuant to T.R.C.P.
192,5.
Plaintiff further objects to said discovery request because Defendant may not use same to
require Plaintiff to marshal all of Plaintiffs available proof or the proof Plaintiff intends to
offer at trial.
REQUEST FOR PRODUCTION NO. 32: Please produce a copy of the conditional payment letter
from CMS.
RESPONSE:
None.
REQUEST FOR PRODUCTION NO. 33: In the event any plaintiff was attending school or any
form of training or educational program at any time within 5 years of the incident made the basis of
this lawsuit, then please produce copies of all documents reflecting the performance of each plaintiff
in each school or program over the past 10 years. This includes all report or grade cards or
evaluations of any plaintiff.
RESPONSE:
N/A.
REQUEST FOR PRODUCTION NO. 34: Pursuant to Rule 609(f), of the Texas Rules of Civil
Evidence, please produce all evidence of a criminal conviction for this defendant or anyone plaintiff
claims was an employee or agent of this defendant, which you will use as evidence in any
examination of any witness,
RESPONSE:
None.
REQUEST FOR PRODUCTION NO. 35: Please produce a copy of any agreement, promise,
contract or warranty of cure provided by this defendant related to the incident made the basis of this
case,
RESPONSE:
None,
REQUEST FOR PRODUCTION NO. 36: Please timely produce a copy of any settlement demand
or "Stower' s Demand" made to any defendant. Please produce said documents at the time they are
transmitted.
RESPONSE:
None.
'Moses\ Del Toro,1204\DiscoverMotla) Resp-RFP,cloox Page 13
REQUEST FOR PRODUCTION NO. 37: Please produce a copy of any Chapter 74 notice letters
and the certified mail return receipt card (green card) for any notice letters sent within two years after
the date of this incident.
RESPONSE:
The following responsive document has previously been produced insofar as it is attached as
Exhibit A to Plaintiff's Second Amended Original Petition and all prior petitions:
1, Notice letter dated 6,11.13 to Gerardo Camaro°, M.D. and Track and Confirm (proof
of receipt) from USPS website, Green card was never returned to Plaintiffs counsel.
REQUEST FOR PRODUCTION NO. 38: Correspondence with witnesses or those who have
knowledge of relevant facts: All letters, correspondence and any other documents from Plaintiff's
counsel to an individual listed as a witness or person with knowledge of relevant facts about this
case, and all letters, correspondence and any other document from any such person to Plaintiff's
counsel,
RESPONSE:
Plaintiff objects to said discovery request because documents from Plaintiffs counsel to any
person constitutes or contains attorney work product which is exempt from discovery
pursuant to T.R.C.P. 192.5.
Subject to said objection, and without waiving same, none,
REQUEST FOR PRODUCTION NO. 39: Please produce a copy of a picture of the patient at or near
the time of the incident. If there is no picture available at or near the time of the incident, then please
produce a copy of a most recent picture of the patient.
RESPONSE:
The following responsive photographs are attached hereto:
1, Nine (9) photographs of Salvador Del Toro, Jr., bate-stamped MLF/Del Toro.0023 -
0031.
REQUEST FOR PRODUCTION NO. 40: If you received Medicare or Medicaid benefits, please
produce a copy of your notification to the Texas Department of Human Services regarding this
unsettled tort claim pursuant to Section 32.033 of the Texas Human Resources Code.
RESPONSE:
N/A.
mememos
\ Cases\ Del Toro. 12040iscoverWliotla) Resp-RFP.doox Page 14
REQUEST FOR PRODUCTION NO. 41: If you are or become a Medicare recipient, please
complete the CMS form, pages 1 and 2, regarding your basic information.
RESPONSE:
None.
REQUEST FOR PRODUCTION NO. 42: Please produce an actual copy of the Medicare Health
Insurance Claim Number (HICN) card. Submission of the number alone is not sufficient; a copy of
the HICN card is required even Utile claimant is deceased.
RESPONSE:
None.
T: Cases \ Del Toro,1204DiscoverABotl a) Resp-Iff.doox Page 15
•
FILED
12/16/2013 9:19:28 AM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Laura Rodriguez
CAUSE NO, 2013-CI-19135
SALVADOR DEL TORO, JR. JUDICIAL DISTRICT COURT
Plaintiff,
VS, 131ST JUDICIAL DISTRICT
GERARDO E. CARCAMO, M.D.
Defendant. BEXAR COUNTY, TEXAS
ORIGINAL ANSWER AND JURY DEMAND OF DEFENDANT, GERARDO
CARCAMOtM.D. WITH REQUEST FOR DISCLOSURE
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Defendant, GERARDO CARCAMO, M.D., and files this his Original
Answer to the Plaintiffs Petition, and in response thereto would respectfully show unto the
Court the following:
GENERAL DENIAL
This Defendant denies generally the material allegations contained in Plaintiff's Petition
saying that inasmuch as they are allegations of fact, Plaintiff should be required to prove them by
a preponderance of the evidence to the jury, if the Plaintiff can do so,
TO THE COURT ONLY
II.
HEALTH CARE LIABILITY CLAIM GOVERNED Y
CHAPTER 74 OF TCP&RC
Defendant affirmatively pleads that this lawsuit is a health care liability claim governed
by Chapter 74 of the Texas Civil Practice & Remedies Code,
K:\WP\ WRW WefforoCaroamoWloadings \Dafendant \Original Ans & JO of DefCarcamo.doo
INADEQUATE NOTICE
Defendant denies that Plaintiff provided appropriate notice pursuant to Chapter 74.051(a)
of the Texas Civil Practices & Remedies Code in that Plaintiffs medical authorization only
allows for the disclosure of pertinent medical records to the "Mauze Law Firm" not Defendant or
his counsel. Therefore, Defendant pleads for abatement of this matter.
IV,
LIMITATION OF CIVIL LIABILITY
Defendant continues to deny that he was in any way negligent in his care and treatment of
Salvador Del Toro, Jr. or that the Plaintiff should recover damages from him; however,
alternatively pleads the limitation on civil liability set forth in Tex, Civ. Prac. & Rem. Code §§
74,301 - 74,303, as applicable.
V.
MEDICAL BILLS PAID VERSUS INCURRED
Defendant continues to deny that he was in any way negligent in his care and treatment of
Salvador Del Toro, Jr. or that the Plaintiff should recover damages from him; however,
alternatively asserts that any medical or healthcare expenses sought by the Plaintiff as damages
herein are limited pursuant to Chapter CPRC §41.0105 to the amount actually paid by or on
behalf of Salvador Del Toro, Jr.
VI,
PERIODIC PAYMENT PROVISION
Defendant affirmatively pleads the applicability of CPRC §74.503 (periodic payments) in
the unlikely event of an adverse Judgment against him,
K:\WP\VVRW \DelToroCaroamoWleadings\Dol'ondant\Original Ans & JD of Def Carcamo,doo 2
VII,
FINANCE CODE
Defendant affirmatively pleads the provisions of §304.101 of the Finance Code
pertaining to prejudgment interest,
VIII.
DISCOVERY CONTROL PLAN
Defendant contends discovery in this case should be conducted under Level 3, TRCP
190.4 et seq, and hereby requests the deposition of the Plaintiff at a reasonable time following
Plaintiffs compliance with CPRC §74.351, the exchange of preliminary written discovery, and
the procurement by Defendant of all pertinent medical records.
IX,
JURY DEMAND
In accordance with Texas Rule of Civil Procedure 216, this Defendant demands a trial by
jury, for which the jury fee is being submitted.
X.
REQUESTS FOR DISCLOSURE
Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Plaintiff is requested to
disclose, within thirty (30) days of service of this Request, the information or material described
in Rule 194,2(a) through 194,2(1).
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant, GERARDO CARCAMO,
M.D., prays that upon final trial and hearing hereof, Plaintiff takes nothing by way of this
lawsuit, that Defendant goes hence, without day, and recover costs in his behalf expended, and
K:1WKWRW1DelToroCnroamo\Pleadings\Defendant\Original Ans & JO of Def Carcino.cloo 3
any other and further relief, at law or in equity, to which this Defendant may show himself justly
entitled,
Respectthlly submitted,
WAGNER CARIO, LLP
7718 Broadway
San Antonio, Texas 78209
(210) 979-7555 (TELEPHONE)
(210)979-9141 (TELEcoPIER)
BY: i 4.iati
ichard Wagner
TEXAS BAR No, 2066 130
ATTORNEY FOR DEFENDANT
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was forwarded to
counsel of record on this the 16th day of December, 2013, as follows:
VIA FAX AND
CMRRR# 7013 0600 0002 0735 1520
George Mauze
Mauze Law Firm, PLLC
2632 Broadway, Suite 401S
San Antonio, Texas 78215
te, VI
ichard Wagner
KAWP\WRW\DelToroCarcamoWleadings\ Defendant \Original Ans & JD of Def Carcamo,cloo 4
APPENDIX TAB “G”
CAUSE NO: 2013-CI-19135
SALVADOR DEL TORO, JR. IN THE DISTRICT COURT
131st JUDICIAL DISTRICT
GERARDO E. CARCAMO, M.D. AND
RAVI BOTLA, M.D. BEXAR COUNTY, TEXAS
PLAINTIFF'S OPPOSITION TO DEFENDANT RAVI BOTLA, M.D.'S MOTION FOR
SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Plaintiff Salvador Del Toro, Jr. (hereinafter referred to as "Plaintiff'), in
the above-entitled and numbered cause and files his Opposition to the Motion for Summary
Judgment of Defendant Ravi Botla, M.D. (hereinafter referred to as "Defendant") and in
opposition to said motion, Plaintiff would respectfully show unto the Court the following:
I.
NATURE OF CLAIM
This lawsuit is founded upon the negligence of Defendant in his medical attention, care,
and treatment of Plaintiff during the hospitalization at Nix Hospital from December 15, 2011
through December 30, 2011 (Exhibit 1). Defendant ordered a colonoscopy prep on December
17, 2011 for a colonoscopy on December 18, 2011. Plaintiff's colon perforated, such not
diagnosed and treated until December 18, 2011. He developed several complications including
peritonitis and sepsis.
II.
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Pursuant to TEX. R. Civ. P. 166a Defendant filed a traditional motion for summary
judgment based upon his affirmative defense of the statute of limitations.
1
TACases\Del Toro.1204\Pleadings\Opp to D BotlEI:SMS.I.docx
III.
SUMMARY JUDGMENT STANDARD
A. Purpose of a Summary Judgment
A summary judgment is a harsh remedy and must be strictly construed. Querner v.
Rindfuss, 966 S.W.2d 661, 670 (Tex. App. — San Antonio 1998, pet. denied).
B. Standard of Review
When considering the summary judgment evidence, the trial court shall make every
reasonable inference and resolve all doubts in favor of the non-movants. Nixon v. Mr. Property
Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Gandara v. Slade, 832 S.W.2d 164, 166
(Tex. App. — Austin 1992, no writ).
C. Motion for Summary Judgment Based Upon An Affirmative Defense
Defendant has the burden of proof to establish his statute of limitations affirmative
defense as a matter of law. Hellman v. Mateo, 772 S.W.2d 64, 66 (Tex. 1989).
IV.
FACTS RELIED UPON WHICH PRECLUDE SUMMARY JUDGMENT
Plaintiff, in opposition to Defendant's Motion for Summary Judgment relies upon the
evidence in the following exhibits attached hereto, and fully incorporated herein:
Exhibit 1: Plaintiff's Third Amended Original Petition
Exhibit 2: Excerpts from medical records of Nix Hospital
Exhibit 3: Chapter 74 Notice letter to Gerardo Carcamo, M.D.
Exhibit 4: Excerpts of medical records and bill of Defendant
Exhibit 5: Email, cover letter, and revised Chapter 74 authorization
Exhibit 6: Email, cover letter, and Chapter 74 authorization including additional
providers
Exhibit 7: 2011 — 2014 Calendars
-2-
T:\Cases\Del "foro.12041Pleadings\Opp to D Botla's NIS.I.docx
The foregoing exhibits establish the following facts:
1. December 15, 2011 — Plaintiff was admitted to Nix Hospital (Exhibit 2)
2. December 17, 2011 — Defendant ordered a colon prep for a planned colonoscopy on
December 18, 2011 (Exhibits 2 & 4)
3. December 18 — Date of diagnosis and first treatment of perforated colon (Exhibits 2
& 4)
4. June 11, 2013 - Chapter 74 notice letter with medical authorization sent to Gerardo
Carcamo, M.D. (Exhibit 3)
5. November 20, 2013 -- Plaintiffs Original Petition against Gerardo Carcamo, M.D.
filed
6. March 2, 2014 — Sunday (2 years, 75 days from December 17, 2011) (Exhibit 7)
7. March 3, 2014 — Monday, Plaintiffs First Amended Original Petition which named
Defendant filed
8. March 3, 2014 — 2 years, 75 days from December 18, 2011 (Exhibit 7)
V.
ARGUMENT AND AUTHORITIES
A. The Statute Of Limitations Is Two Years From The Date The Cause Of Action
Accrues.
The applicable statute of limitations is two (2) years from the date the cause of action
accrued. Tex. Civ. Prac. & Rem. Code, Section 74.251(a). The cause of action accrues on the
date of the negligence. Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001). The dates of negligence
of Defendant are December 17, 2011 (Exhibit 2 — MLF/Del Toro/Nix Hosp.0255 - Nix Hospital
records: Defendant's order for the colon prep) and December 18, 2011 (Exhibit 2 — MLF/Del
Toro/Nix Hosp.0304 — Nix Hospital medical records: first date of diagnosis of perforated colon).
The statute of limitations, before tolling, expired on December 18, 2013 (Exhibit 7).
B. The Statute Of Limitations Is Tolled For Seventy-Five Days If Notice Is Provided To
Any Person.
The statute of limitations in a health care liability claim is tolled for seventy-five (75)
days if a notice is provided to any person. Tex. Civ. Prac. & Rem. Code, Section 74.051(c);
Phillips v. Sharpstown Gen. Hosp., 664 S.W.2d 162, 165-66 (Tex. App. — Houston [151 Dist.]
1982, no writ). Notice to one person tolls the statute of limitations as to all persons. DeCheca v.
-3-
TACases1 Del Toro. I 204 \Pleadings\Opp to D Botla's MS.T.clocx
Diagnostic Center Hosp., Inc., 852 S.W.2d 935, 937 (Tex. 1993). Plaintiff provided a Chapter
74 notice to Gerardo Carcamo, M.D. on June 11, 2013, well within the 2 year statute of
limitations (Exhibit 3) and, thus, the statute of limitations was tolled as to all persons on such
date. After the seventy-five (75) day tolling period (August 25, 2013), the 2 year statute resumed
running for the remaining 190 days, such being March 3, 2014 (Exhi bit 7). Rowntree v,
Hunsucker, 833 S.W.2d 103, 104-05, n. 2 (Tex. 1992); Phillips at 165-66.
C. If A Notice Or Medical Authorization (Although Defective) Is Sent Well Within The
Statute Of Limitations Or Substantially Complies With The Statute, Then The
Tolling Provision Applies.
Plaintiff provided a Chapter 74 notice to Gerardo Carcamo, M.D. with a medical
authorization (Exhibit 3). The purpose of the notice and authorization is to provide the health
care provider, to whom notice is sent, an opportunity to investigate and to encourage negotiations
and settlement of disputes prior to suit, thereby reducing litigation costs. Garcia v. Gomez, 319
S.W.3d 638, 643 (Tex. 2010). Defendant herein did not receive notice and could not have
obtained any health care records of Plaintiff with the authorization, whether sufficient or not,
with the authorization provided to Gerardo Carcamo, M.D. Thus, Defendant herein does not
have standing to claim the authorization provided to Gerardo Carcamo, M.D. is insufficient
because he would not have been able to obtain any health care records with an authorization
allowing Gerardo Carcamo, M.D. to obtain health care records. However, assuming for purposes
of argument only, that the medical authorization provided to Gerardo Carcamo, M.D. is
insufficient, the only remedy is a 60 day abatement, not a waiver of the tolling provision, since
the notice and authorization were provided well within the statute of limitations. Carreras v.
Marroquin, 339 S.W.3d 68, 73-74 (Tex. 2013)(no medical authorization was provided and notice
was not given well within the statute of limitations — notice was sent only 2 days before the
-4-
T:\Cases\Del Toro.1204\Pleadings\Opp to D Botl a's MS.I.docx
statute of limitations expired); Mitchell v. Methodist Hospital, 376 S.W.3d 833, 839 (Tex. App.
Houston [1st Dist.] 2012, pet. denied)(medical authorization which did not authorize health care
provider who received notice to obtain records, did not identify any other health care providers
during the previous five years, and not given well within the statute of limitations to allow
abatement prior to expiration of statute of limitations did not toll the statute of limitations). In
this case, notice was provided June 11, 2013 (Exhibit 3), approximately 190 days before the
statute of limitations expired, included a medical authorization, and identified other health care
providers during the five previous years.
Defendant claims the medical authorization is defective because it fails to track the exact
language of Chapter 74 and failed to list all other health care providers of Plaintiff in the
previous five (5) years. Although the authorization does not track the exact language of the
statute, it fulfilled the purpose of the statute because it did not prohibit the obtaining of health
care records or the opportunity for pre-suit settlement. When Defendant Gerardo Carcamo, M.D.
requested a revised medical authorization, it was provided (Exhibit 5). Further, when Defendant
Gerardo Carcamo, M.D. requested another authorization with inclusion of additional health care
providers, it was provided (Exhibit 6). Substantial compliance with mandatory provisions of a
statute suffices if the noncompliance satisfies the purpose of the statute. Butler v. Taylor, 981
S.W.2d 742-43 (Tex. App. — Houston [1St Dist.] 1998, no pet.)(service of notice by express mail
rather than certified mail, return receipt requested, was substantial compliance because the
purpose of the notice statute was satisfied); Rabatin v. Kidd, 281 S.W.3d 558, 562 (Tex. App. --
El Paso 2008, no pet.)(improperly filled out medical authorization which excluded other health
care providers during previous five years was sufficient to toll statute of limitations); Nicholson
v. Shinn, 2009 WL 3152111 (Tex. App. — Houston [1st Dist.] October 1, 2009, no pet,)(no
5
TACases\Del Toro.1204\Pleadings\Opp to D Botla's MS,I.docx
medical authorization was provided and thus, no substantial compliance); Mock v. Presbyterian
Hospital of Plano, 379 S.W.3d 391, 395 (Tex. App. — Dallas 2012, pet. denied)(one of the blanks
in the medical authorization was incorrectly completed but sufficient to toll the statute of
limitations); Mitchell v. Methodist Hospital, 376 S.W.3d 833, 837-38 (Tex. App. — Houston [1st
Dist.] 2012, pet. denied)(medical authorization which did not identify health care provider as
authorized to obtain records, did not identify any other health care providers during previous five
years, and not given well within the statute of limitations was insufficient to toll statute of
limitations); Cantu v. Mission Regional Medical Center, 2014 WL 1879292 (Tex. App. - Corpus
Christi May 8, 2014, no pet.)(HIPAA medical authorization which did not authorize any
defendant to obtain medical records was insufficient to toll statute of limitations),
D. The Statute Of Limitations Provision Which Provides "Notwithstanding By Any
Other Law" Does Not Foreclose Procedural Rules.
Section 10.01 provides for a strict two year statute of limitations "notwithstanding by any
other law". However, Texas Courts have held that such language does not foreclose rules which
are procedural in nature. Chilkwitz v. Hyson, 22 S.W.3d 825 (Tex. 1999)(Rule 28 — Suits in
Assumed Name is procedural and is not foreclosed by such language); Forrest v. Danielson, 77
S.W.3d 842 (Tex. App. — Tyler 2002, no writ)(Rule 5 Enlargement of Time is procedural and is
not foreclosed by such language). Rule 4 Tex. R. Civ. P. is a procedural rule and provides as
follows:
In computing any period of time prescribed or allowed by these rules, by order of the
court, or by any applicable statute, the day of the act, event, or default after which the
designated period of time begins to run is not to be included. The last day of the period
so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which
event the period runs until the end of the next day which is not a Saturday, Sunday or
legal holiday (emphasis added).
-6-
\Cases\Del Toro.I204\ PleadingslOpp to D Botla's MS.I.docx
Consistent with Rule 4, Tex. R. Civ. P., Tex. Civ. Prac. & Rem, Code Ann. Section 16.072
(Vernon's 1986) provides:
If the last day of a limitations period under any statute of limitations falls on a Saturday,
Sunday, or holiday, the period for filing suit is extended to include the next day that the
county offices are open for business (emphasis added).
Therefore, if the statute of limitations expired on Sunday, March 2, 2014 as to any portion of
Plaintiff's claims, then the deadline was extended to the following Monday, March 3, 2014
(Exhibit 7).
VI.
CONCLUSION
Plaintiff provided a Chapter 74 notice letter and medical authorization, which
substantially complied with the purpose of the statute, well within the two (2) year statute of
limitations. Even if the medical authorization did not substantially comply, the seventy-five (75)
day tolling applies. The statute of limitations, after tolling, expired on March 3, 2014 and if
found to have expired on Sunday, March 2, 2014, then such deadline was extended, by rule and
statute, to Monday, March 3, 2014. Plaintiff's suit filed on Monday, March 3, 2014 is not barred
by the statute of limitations and, thus, Defendant's motion for summary judgment based upon his
affirmative defense of the statute of limitations should be denied.
WHEREFORE PREMISES CONSIDERED, Plaintiff Salvador Del Toro, Jr. respectfully
prays that Defendant Ravi Botla, M.D.'s Motion for Summary Judgment be denied and that this
Court order such other and further relief to which he is justly entitled.
7
TACases1Del Toro.1204\Pleadings\ Opp to D Botl a's MS.1.docx
Respectfully submitted,
MAUZE LAW FIRM
2632 Broadway, Suite 401 South
San Antonio, Texas 78215
Telephone: (210) 225-6262
Telecopier: (210) 354-3909
george W. Mau4.
State Bar No. 13238800
ATTORNEY FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I hereby certify that on this 4th day of September, 2014, a true and correct copy of
Plaintiffs Opposition to Defendant Ravi Botla, M.D.'.s Motion for Summary Judgment and for
Severance of Defendant Ravi Botla, M.D. has been sent by certified mail, return receipt
requested to:
Mr. W. Richard Wagner, Esq.
Wagner Cario, LLP
7718 Broadway, Suite 100
San Antonio, TX 78209
Mr. Brett B. Rowe, Esq.
Evans, Rowe & Holbrook, P.C.
10101 Reunion Place, Suite 900
San Antonio, Texas 78216
8
T:\Cases\Dcl Toro.12041Pleadings\Opp to D Botla's IVISIdoex
CAUSE NO: 2013-CI-19135
SALVADOR DEL TORO, JR. IN THE DISTRICT COURT
V. 131" JUDICIAL DISTRICT
GERARDO E. CARCAMO, M.D. AND
RAVI BOTLA, M.D. BEXAR COUNTY, TEXAS
PLAINTIFF'S THIRD AMENDED ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Salvador Del Toro, Jr. (hereinafter referred to as "Plaintiff') and files this
Third Amended Original Petition complaining of Gerardo E. Carcamo, M.D. (hereinafter referred to
as "Defendant Carcamo") and Ravi Botla, M.D. (hereinafter referred to as "Defendant
Botla")(hereinafter collectively referred to as "Defendants") and for cause of action would show unto
this Honorable Court as follows:
I.
DISCOVERY CONTROL PLAN
Pursuant to Tex. R. Civ. P. 190, discovery in this case is intended to be conducted under
Level 3.
IL
PARTIES
Plaintiff, Salvador Del Toro, Jr., at all times relevant to this lawsuit, has been an individual
residing in Del Rio, Val Verde County, Texas.
Defendant, Gerardo E. Carcamo, M.D., is, and at all times relevant to this lawsuit has been, a
physician duly licensed to practice medicine in the State of Texas and resides in Bexar County,
Texas. Said Defendant has appeared and answered herein.
1
TACases\Del Toro,1204\PleadingsTetition-AM3.docx
Defendant, Ravi Botla, M.D., is, and at all times relevant to this lawsuit has been, a physician
duly licensed to practice medicine in the State of Texas and resides in Bexar County, Texas. Said
Defendant has appeared and answered herein.
III.
VENUE AND JURISDICTION
This Court has jurisdiction of this cause because the damages sought are within the
jurisdictional limits of this Court. Venue is proper in Bexar County, Texas in that such is the county
in which the events giving rise to this claim occurred.
IV.
FACTUAL BACKGROUND
This lawsuit is founded upon medical negligence committed by Defendants.
On or about December 15, 2011, Mr. Del Toro presented himself to Dr. James Lackey for
increased lower abdominal pain for 3 — 4 days, nausea, and vomiting. He was fatigued and had not
been eating or taking many fluids. He had a history of diverticulitis and hospitalizations for acute
diverticulitis, the most recent approximately 1 month prior. A CT scan was ordered and performed,
such reflecting findings of ". . a severely diseased sigmoid colon with underlying diverticular
burden and a stricture". Mr. Del Toro was referred to Nix Hospital where he was further evaluated
and assessed by Bridget K. Fiechtner, M.D. Dr. Fiechtner noted he was in mild distress with pain,
his abdomen was distended, and bowel sounds were hypoactive. She reviewed the CT scan and
noted the stricture is of particular concern because it appears to be partially obstructing the colon.
Based On Dr. Fiechtner's assessment and CT review, Mr. Del Toro was admitted for further
treatment and evaluation. On December 16, 2011, Mr. Del Toro was seen in consultation by
Defendant Carcamo who recommended a plan for surgery — either laparoscopic or possible open
2
T: \ Cases \De! Toro.1 204\ PleadingslPetition-AM3.docx
colon resection with possible colostomy placement, Mr. Del Toro agreed to the surgery but wanted
it performed by a surgeon in Austin who had previously performed surgeries on family members.
After the hospital inquired with the surgeon in Austin and discovered he would not be available until
Monday, Mr. Del Toro requested surgery that day by Defendant Carcamo. Defendant Carcamo had
left the hospital already and informed the nursing staff that he would see Mr, Del Toro the next
morning. The next morning, Defendant Botla, a gastroenterologist, consulted with Mr. Del Toro.
He recommended a colonoscopy. Mr. Del Toro refused the colonoscopy and again expressed his
decision to proceed with the surgery recommended by Defendant Carcamo. Defendant Carcamo
spoke to Mr. Del Toro who again expressed his decision to proceed with the recommended surgery,
but Defendant Carcamo changed his plan and now recommended Mr. Del Toro proceed first with a
colonoscopy. He explained the "importance of colonoscopy" and persuaded Mr. Del Toro to
consent. On December 17, 2011, Defendant Botla ordered, and Mr. Del Toro was administered,
GoLYTELY for gastrointestinal prep prior to colonoscopy, He did not have a bowel movement after
the GoLYTELY was administered. Shortly thereafter, Mr. Del Toro began complaining of severe
pain to his abdomen. Both Defendants were notified. Mr. Del Toro's abdominal pain worsened to a
scale of 10 out of 10, he began crying, and was very upset. He suffered severe pain for the next 12
hours. A CT scan was ordered STAT on the morning of December 18, 2014, It revealed the
presence of free air, such indicative of a perforated colon. He was emergently taken to the operating
room and Defendant Carcamo performed an exploratory laparotomy. He found a perforation in the
right colon, fecal contamination of the peritoneum which had progressed to peritonitis and sepsis,
and he performed a right hemicolectomy (necessitated because of the perforated colon from the colon
prep), sigmoidectomy (necessitated because of the diverticulitis, stricture, and obstruction), and end-
3
T:\Cases1Del Toro.1204\Pleadings\Petition-AM3,docx
colostomy with Hartmann pouch (necessitated because of the sigmoidectomy) and wound VAC
placement. On December 21, 2011, Mr. Del Toro underwent another exploratory laparotomy,
drainage of an intra-abdominal abscess, colostomy revision, placement of wound VAC, and refill of
ONQ pump. Mr. Del Toro remained hospitalized until December 30, 2011. He was re-admitted in
February 2012 and on February 17, 2012, Defendant Carcamo performed laparoscopic adhesiolysis
and a cholecystectomy. Mr. Del Toro again was admitted to the hospital in March 2012 and
Defendant Carcamo performed another laparoscopic adhesiolysis, laparoscopic splenic flexure
takedown, laparoscopic colostomy reversal, and parastomal hernia repair.
V.
NEGLIGENCE OF DEFENDANT CARCAIVIO
Defendant Carcamo owed a general duty of care to Salvador Del Toro, Jr., to provide health
care, attention and/or treatment as a reasonably prudent general surgeon would have under the same
or similar circumstances. Such duty required that said Defendant Carcamo render health care in
conformity with the minimum applicable standard of care for a person under the same or similar
circumstances as Salvador Del Toro, Jr. Said Defendant breached that duty by engaging in the
following acts and/or omissions to act, such constituting negligence:
1. failing to appropriately treat Mr. Del Toro for a severe diseased sigmoid colon with
diverticular burden, stricture, and obstruction;
2. recommending a colonoscopy which requires colon preparation when such was
contraindicated because of the suspected gastrointestinal obstruction;
3. failing to timely diagnose and treat the colon perforation; and
4. failing to otherwise provide medical attention, care and/or treatment to a patient in
the same or similar condition in accordance with the applicable standard of care.
4
T:\Cases\Del Toro.1204\Pleadings\Petition-AM3.docx
Such acts and/or omissions to act, whether taken singularly or collectively, constitute a direct
and proximate cause of the injuries and damages of Salvador Del Toro, Jr. for which he seeks
recovery.
VI.
NEGLIGENCE OF DEFENDANT BOTLA
Defendant Botla owed a general duty of care to Salvador Del Toro, Jr., to provide health care,
attention and/or treatment as a reasonably prudent internal medicine physician/gastroenterologist
would have under the same or similar circumstances. Such duty required that said Defendant Botla
render health care in conformity with the minimum applicable standard of care for a person under the
same or similar circumstances as Salvador Del Toro, Jr. Said Defendant breached that duty by
engaging in the following acts and/or omissions to act, such constituting negligence:
I. recommending a colonoscopy, which requires colon preparation, when it was known
that Mr. Del Toro had severe sigmoid disease, stricture, and obstruction;
2. ordering GoLYTELY to prepare his colon for a colonoscopy which is contraindicated
in a patient suspected of having a gastrointestinal obstruction;
3. failing to timely diagnose and treat the colon perforation; and
4. failing to otherwise provide medical attention, care and/or treatment to a patient in
the same or similar condition in accordance with the applicable standard of care.
Such acts and/or omissions to act, whether taken singularly or collectively, constitute a direct
and proximate cause of the injuries and damages of Salvador Del Toro, Jr. for which he seeks
recovery.
5
T:\Cases\Del Toro.1204\PleadingsTetition-AM3.docx
VII.
DAMAGES
As a direct and proximate cause of the negligence of Defendants, Salvador Del Toro, Jr. has
suffered injuries, including severe physical and mental pain and anguish which based upon a
reasonable degree of medical probability, he will continue to suffer for many years in the future, if
not for the balance of his natural life. Additionally, Mr. Del Toro suffered physical impairment and a
loss of enjoyment of life which, based upon a reasonable degree of medical probability, he will
continue to suffer in the future. Furthermore, he has sustained a loss of income and/or loss wage
earning capacity. As a result of his injuries, Mr. Del Toro has also incurred substantial reasonable
medical and other health care expenses for necessary medical and health care and, based upon a
reasonable degree of medical probability, he will continue to incur reasonable expenses for necessary
medical and health care in the future.
VIII.
NOTICE
Plaintiff would further show that on or about June 11, 2013, more than sixty (60) days prior
to filing of this cause, he provided written notice of said claim by certified mail return receipt
requested to Defendant Careamo. Plaintiff otherwise fully complied with the notice provisions
pursuant to Section 74.051(a) of the Texas Civil Practices & Remedies Code. A true and correct
copy of said notice is attached hereto marked as Exhibit "A" and is incorporated herein by reference
for all purposes.
The statute of limitations prohibited the providing of written notice of said claim to
Defendant B o tl a.
6
T:\Cases\Del Toro.1204\Pleadings\Petition-AM3.docx
WHEREFORE, PREMISES CONSIDERED, Plaintiff Salvador Del Toro, Jr. respectfully
prays that, upon final trial, Plaintiff have and recover judgment in his favor against Defendants,
jointly and severally, for the following:
1. actual damages within the jurisdictional limits of this Court;
2. pre-judgment and post-judgment interest at the maximum rate allowed by law;
3. costs of suit; and
4. such other and further relief at law or in equity, general or special, to which Plaintiff
may be justly entitled.
Respectfully submitted,
MAUZE LAW FIRM
2632 Broadway, Suite 401S
San Antonio, Texas 78215
Telephone: 210.225.6262
Facsimile: 210.354.3909
B
eorge W. Ma9 ,
TBC #13238800
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that on this 4th day of September, 2014, a true and correct copy of Plaintiffs
Third Amended Original Petition has been sent by via fax and regular mail to:
Mr. W. Richard Wagner, Esq. Mr. Brett B. Rowe, Esq.
Wagner Cario, LLP Evans, Rowe & Holbrook, P.C.
7718 Broadway, Suite 100 10101 Reunion Place, Suite 900
San Antonio, TX 78209 San Antonio, TX 78216
7
T:\Cases\Del Toro.12041Pleadings1Petition-AM3.docx
VAUZE LAW F 4112)
.1-\\ JUI1
GEORGE W. MAUZE, II, ATTORNEY 2632 BROADWAY
SUITE 401 South
SAN ANTONIO, TEXAS 78215
TELEPHONE 210.225.6262
FACSIMILE' 210.354.3909
EMAIL: gmauze@mauzelawfirm.com
WVVW.MAOZELAWFIRM.COM
June 11, 2013
PERS NAL & CONFIDENTIAL CMRRR #7012-3050-0002-3901-1372
Gerardo E. Carcamo, M.D.
414 Navarro, Suite 810
San Antonio, TX 78205
Re: Salvador Del Toro, Jr.
Dear Dr. Carcamo:
Please be advised that our law firm has been retained by Salvador Del Toro, Jr. to
represent him in any and all claims he may have against you arising from the facts stated herein.
On or about December 15, 2011, Mr. Del Toro was admitted to Nix Hospital after being
evaluated by Dr. James Lackey with the Riverwalk Clinic for increased lower abdominal pain,
nausea, and vomiting. After a CT scan obtained by the Riverwalk Clinic showed findings of ". .
•a severely diseased sigmoid colon with underlying diverticular burden and a stricture," he was
referred to Nix Hospital where he was further evaluated and assessed by Bridget K. Fiechtner,
M.D. Based on Dr. Fiechtner's assessment and CT scan findings, Mr. Del Toro was admitted for
further treatment and evaluation and discussed the patient's case with you. On December 16,
2011 Mr. Del Toro was seen in consultation by you. On the evening of December 17, 2011, you
ordered and Mr. Del Toro was given GoLYTELY for gastrointestinal prep prior to colonoscopy.
Shortly thereafter, he began having worsening abdominal pain throughout the evening with
vomiting. On December 18, 2011 at approximately 5:00 o'clock a.m., Mr. Del Toro had
worsening and change in the quality of his pain. He was sent emergently for a CT of the
abdomen and pelvis which revealed the presence of free air consistent with perforation of a
hollow viscus. You were called and Mr. Del Toro was emergently taken to the operating room
on December 18, 2011. Due to the perforation of his colon, you immediately performed a right
hemicolectomy, sigmoidectomy, and end-colostomy with Hartmann pouch and wound VAC
placement. On December 21, 2011, Mr. Del Toro underwent another surgery by you for
washout and wound VAC change. Mr. Del Toro remained hospitalized until December 30,
2011. Since then, Mr. Del Toro has necessitated frequent medical attention, necessitated and
undergone two additional corrective surgeries.
The complications associated from the perforation of his colon which you "expected",
have caused him severe pain and mental anguish, severe discomfort, disfigurement, and financial
hardship. Although, you clearly knew of his partial obstruction in his colon based on the CT
findings, you ordered GoLYTELY which is contraindicated in a patient suspected of having
gastrointestinal obstruction. You further state in your December 18, 2011, operative report, that
"Unfortunately he was unable to have a bm'as expected' and he perforated.".
Dr. Carcamo
June 11, 2013
Page 2
The foregoing acts and omissions to act constitute negligence. As a result of such
negligence, Mr. Del Toro has suffered severe medical complications associated with his
perforated colon.
In accordance with Chapter 74.051(a) of the Texas Civil Practices & Remedies Code, this
letter constitutes your sixty (60) days notice that Salvador Del Toro, Jr. intends to assert health
care liability claims against you. If this matter is not resolved within sixty (60) days, then a
lawsuit will be filed.
In an effort to settle this claim without the necessity of filing a lawsuit, my client hereby
tenders an offer of settlement to you in the amount of Eight Hundred Thousand Dollars
($800,000.00), such consisting of $250,000.00 for noneconomic damages plus economic
damages including loss of income, and health care expenses in the amount of $550,000.00,
Attached hereto is a release for medical records in accordance with §74.052 of the Texas
Civil Practice & Remedies Code. Additionally, please accept this letter as our request for copies
of any and all medical records, diagnostic studies, whether digital, or film Enclosed herewith is
a HIPAA release authorizing you to provide true, correct, and complete copies of same.
The standard professional liability insurance policy requires that the insured promptly
give the insurance carrier notice of any claim. If you or your insurance carrier wish to discuss an
amicable and expedient resolution of this claim, then please do not hesitate to give me a call.
Very truly yours,
George W, MauzVII
GWM/ag
enclosures
xc: Mr. Salvador Del Toro, Jr.
AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION
PURSU NT TO TEX. CIAO. PRAC. & REM. CODE, CHAPTER 74 § 74.052
A. I, Salvador Del Toro, Jr. (name of patient or authorized representative), hereby
authorize Gerardo E. Camara°, M.D. (name of physician or other health care provider to
whom the notice of health care claim is directed) to obtain and disclose (within the
parameters set out below) to Mame Law Firm the protected health information
described below for the following specific purposes:
1. To facilitate the investigation and evaluation of the health care claim described in
the accompanying Notice of Health Care Claim; or
2. Defense of any litigation arising out of the claim made the basis of the
accompanying Notice of Health Care Claim.
B. The health information to be obtained, used, or disclosed extends to and includes the
verbal as well as the written and is specifically described as follows:
1. The health information in the custody of the following physicians or health care
providers who have examined, evaluated, or treated Salvador Del Toro, Jr.
(patient) in connection with the injuries alleged to have been sustained in
connection with the claim asserted in the accompanying Notice of Health Care
Claim:
Nix Hospital, 414 Navarro, San Antonio, TX 78205
Gerardo E. Carcamo, M.D., 414 Navarro, Suite 830, San Antonio, TX 78205
This authorization shall extend to any additional physicians or health care
providers that may in the future evaluate, examine, or treat Salvador Del Toro, Jr.
(patient) for injuries alleged in connection with the claim made the basis of the
attached Notice of Health Care Claim; and
2. The health information in the custody of the following physicians or health care
providers who have examined, evaluated, or treated Salvador Del Toro, Jr.
(patient) during a period commencing five years prior to the incident made the
basis of the accompanying Notice of Health Care Claim:
Riverwalk Clinic, 414 Navarro, Suite 809, San Antonio, TX 78205
Val Verde Regional Medical Center, 801 Bedell Avenue, Del Rio, TX 78840
Antonio Cadena, M.D., 2201 North Bedell, Suite A, Del Rio, TX 78840
C. Excluded Health Information—the following constitutes a list of physicians or health care
providers possessing health care information concerning Salvador Del Toro, Jr. (patient)
to which this authorization does not apply because I contend that such health care
information is not relevant to the damages being claimed or to the physical, mental, or
emotional condition of Salvador Del Toro, Jr. (patient) arising out of the claim made the
basis of the accompanying Notice of Health Care Claim: NONE.
D. The persons or class of persons to whom the health information of Salvador Del Toro, Jr.
(patient) will be disclosed or who will make use of said information are:
1. Any and all physicians or health care providers providing care or treatment to
Salvador Del Toro, Jr. (patient);
2. Any liability insurance entity providing liability insurance coverage or defense to
any physician or health care provider to whom Notice of Health Care Claim has
been given with regard to the care and treatment of Salvador Del Toro, Jr.
(patient);
3. Any consulting or testifying experts employed by or on behalf of Gerardo E.
Carcamo, M.D. (name of physician or health care provider to whom Notice of
Health Care Claim has been given) with regard to the matter set out in the Notice
of Health Care Claim accompanying this authorization;
4. Any attorneys (including secretarial, clerical, or paralegal staff) employed by or on
behalf of Gerardo E. Carcamo, M.D. (name of physician or health care provider
to whom Notice of Health Care Claim has been given) with regard to the matter
set out in the Notice of Health Care Claim accompanying this authorization; and
5. Any trier of the law or facts relating to any suit filed seeking damages arising out of
the medical care or treatment of Salvador Del Toro, Jr. (patient).
E. This authorization shall expire upon resolution of the claim asserted or at the conclusion
of any litigation instituted in connection with the subject matter of the Notice of Health
Care Claim accompanying this authorization, whichever occurs sooner.
F. I understand that, without exception, I have the right to revoke this authorization in
writing. I further understand the consequence of any such revocation as set out in
Section 74.052, Civil Practice and Remedies Code.
G. I understand that the signing of this authorization is not a condition for continued
treatment, payment, enrollment, or eligibility for health plan benefits.
H. I understand that information used or disclosed pursuant to this authorization may be
subject to redisclosure by the recipient and may no longer be protected by federal HIPAA
privacy regulations.
Signature of ati t:
Date: /1/3
Sa vadorlel Toro, Jr. (
Patient's Name: Salvador Del Toro, Jr.
Patient's D.O.B.: 12.25.1973
Patient's SSN: 451.77,9676
AUTHOWATfiON F RM RELEASE OF PROTECTED HEALTH ONIF •RMATIO
A. I, Salvador Del Toro, Jr., hereby authorize Gerardo E. Carcamo, M.D. to obtain and
disclose to Mauze Law Firm (within the parameters set out below) the protected health
information described below for the following specific purposes:
1. To facilitate the investigation and evaluation of my potential claim for damages arising
from injuries I have sustained.
B. The health information to be obtained, used, or disclosed extends to and includes the verbal
as well as the written and is specifically described as follows:
1. The health information in the custody of the following physicians or health care
providers who have examined, evaluated or treated Salvador Del Toro, Jr. in
connection with the injuries alleged to have been sustained.
C. The persons or class of persons to whom the health information of
Salvador Del Toro, Jr. will be disclosed or who will make use of said information are:
1. Any and all physicians or health care providers providing care or treatment to
Salvador Del Toro, Jr.;
2. Any liability insurance entity providing liability insurance coverage or defense to any
person hereafter named as Defendant;
3. Any consulting or testifying experts employed by or on behalf of any person hereafter
named as a Defendant;
4. Any attorneys (including secretarial, clerical, or paralegal staff) employed by or on
behalf of any person hereafter named as a Defendant; and
5. Any trier of the law or facts relating to any suit filed seeking damages arising out of
the injuries and damages sustained by Salvador Del Toro, Jr..
D. I understand that, without exception, I have the right to revoke this authorization in writing. I
further understand the consequence of any such revocation as set out in Section 74.052,
Civil Practice and Remedies Code.
E. I understand that the signing of this authorization is not a condition for continued Treatment,
payment, enrollment, or eligibility for health plan benefits.
F. I understand that information used or disclosed pursuant to this authorization may be subject
to redisclosure by the recipient and may no longer be protected by federal HIPAA privacy
regulations.
G. This authorization will expire 12 months from the date of execution by the representative of
the patient.
H. Copies of this Authorization shall be deemed the same as the original. Also, facsimile
copies or electronic versions of a signature of any party shall be deemed the same as the
original.
Signatur9„of- .tient:
Date:
el Toro, Jr.
Name of Patient: Salvador Del Toro, Jr.
Patient's D.O.B.: 12.25.1973
Patient's SSN: 451.77.9676
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Physician Order of
Page 1 of 1
0
GE)4:!,:33B4EDBB78E171=E3 DELTORO
NIX HEALTH . ARE SYSTEM
CONSULTATION REPORT
CONSULTANT: Ravi Sofia, M.D. DATE OF CONSULT: 12/17/2011
PRIMARY CARE PHYSICIAN: Dr. S. Somasundaravelayudha
i:4
PRIMARY REASON FOR CONSULTATION: Left lower quadrant abdominal pain and diverticulitis..
-• • ••• •
HISTORY: Dr. S. Somasundaravelayudha kindly asked me to evaluate Mr. DelToro, who is a 37-
year-old morbidly obese Latin-American male, who was admitted on 12/15/11 for diverticulitis.
History of left lower quadrant abdominal pain for three days duration without any characteristic
radiation associated nausea, vomiting. No history of constipation, diarrhea, stool bleeding or melena.
History of similar episode two to three weeks ago, three months ago and three to four months ago.
He apparently seen at the ER in Austin for a prior evaluation. No history of fever. No history of weight
loss.
PAST MEDICAL HISTORY: Significant for hypertension, morbid obesity.
PAST SURGICAL HISTORY: None.
SOCIAL HISTORY: The patient works as an officer at a correction facility. Ten pack history of
smoking, No history of drinking. No history of substance abuse,
FAMILY HISTORY: Nil particular for gastrointestinal malignancies or liver diseases.
MEDICATIONS: Before coming to the hospital he was on Bentyl.
In the hospital, he is on -
1. Lisinopril.
2, Metronidazole,
3. Zosyn.
4. Docusate sodium.
ALLERGIES: None,
REVIEW OF SYSTEMS: Denies any history of chest pain, history of abdominal pain present, history
of nausea or vomiting presently. No history of constipation, diarrhea, rectal bleeding or melena.
EXAMINATION: The patient is alert, well oriented, morbidly obese Latin-American male not in any
acute distress.
VITAL SIGNS: Pulse 88/minute, respiratory rate 20/minute, blood pressure 133/86, afebrile.
RENT: No jaundice. Bilateral significant parotid enlargement. A short thin neck is seen.
HEART: S1 present, S2 present, S3 zero, no murmurs.
(NJ
O
PATIENT: DELTORO, SALVADOR MEDICAL RECORD #: 76-31-01 0
U)
DATE OF BIRTH: 12/2511973 AGE: 37 PATIENT #: 00104300330 0
SEX: M HOSPITAL SERVICE: MED
12/15/2011 PATIENT LOCATION:
ADMISSION DATE: 18TH181701
z
0
Pagel of 3 0
CONSULTATION REPORT
a)
CD4333B4EDBB78E17FE8.DELTOR0.252 2
O
NIX HEALTH L..-kRE SYSTEM
CONSULTATION REPORT
LUNGS: Clear bilaterally with good air entry.
ABDOMEN: Morbidly obese abdomen. Tenderness present in the right side of the abdomen in the
left lower quadrant region without any guarding or rebound. Bowel sounds are good. No palpable
hepatosplenomegaly, no palpable mass lesions in the abdomen.
EXTREMITIES: Lower extremities, no pedal edema.
NEUROLOGICAL: Alert, well oriented, no gross motor deficits.
LABS: White count 16.6000, hemoglobin 14.2, hematocrit 41.3, platelet count 348,000, prothrombin
time of 12.1 seconds with an INR of 1.1. CHEM panel is normal except for potassium of 3,4. Liver
function tests were normal, Amylase and lipase were normal.
Right upper quadrant sonogram showed gallstones and fatty liver.
CT of the abdomen and pelvis showed severe sigmoid colon diverticulosis and mild diverticulitis,
sigmoid colon stricture, no abscess.
IMPRESSION: Thirty-seven-year-old morbidly obese Latin-American male, with history of
hypertension, diverticulitis presented with recurrent diverticulitis, The patient has three episodes of
diverticulitis in the last four years duration, mild tenderness in the left lower quadrant and right side of
the abdomen. The patient has evidence of sigmoid colon stricture by imaging studies, this is most
likely secondary to recurrent diverticulitis and fibrosis. I need to rule out malignancy, Apparently, the
patient never had a colonoscopy after previous episodes of diverticulitis. The current episode of
diverticulitis seems to be mild.
PLAN: Clear liquid diet. Continue empiric antibiotics. Colon prep today and I recommend a
colonoscopy for further evaluation, The procedure, benefits, alternatives and complications including
bleeding, perforation and aspiration and respiratory difficulties from his morbid obesity were explained
to the patient and his family members at the bedside, He is very skeptical about colonoscopy and
biopsies at this time. He has not decided about proceeding with the colonoscopy study. I will
schedule the colonoscopy in one or two days time if the patient consents for the procedure.
Thank you very' much for allowing me to evaluate Mr, DelToro.
Ravi Botla, M,D.
PATIENT: DELTORO, SALVADOR MEDICAL RECORD #: 76-31-01
DATE OF BIRTH: 12125(1973 AGE: 37 PATIENT #: 00104300330
SEX: M HOSPITAL SERVICE: MED
ADMISSION DATE: 12/15/2011 PATIENT LOCATION: 18TH181701
Page 2 of 3
CONSULTATION REPORT
CD4333B4EDBB70E17FE8.DELTOR0.253
NIX HEALTH SYSTEM
CONSULTATION REPORT
RB/nbn
DD: 12/17/2011 7:52 A
DT: 12/17/2011 8:54 A
000326885
cc: Ravi Botla, M.D.
Gerardo Carcamo, M.D.
Bridget K. Fiechtner, M.D.
Armando Quinones, M.D.
S. Somasundaravelayudha, M.D..
PATIENT: DELTORO, SALVADOR MEDICAL RECORD #: 76-31-01
DATE OF BIRTH: 12/2511973 AGE: 37 PATIENT #: 00104300330
SEX: M HOSPITAL SERVICE: MED
ADMISSION DATE: 12/1512011 PATIENT LOCATION: 18TH181701
Page 3 of 3
CONSULTATION REPORT
CD4333B4EDBB78E17FE8 DELTORO 254
nix Record No.:
PROGRESS RECORD Room:
Date:
Name: Age Service of Doctor-
TIME DATE M.D. -Frequent Periodical Notations Should Be Made Concerning Progress of Case, Complications, Etc.
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00433354EDBB78E17FE8 DELTORO 312
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CD433364 ED8676E1 7FE8 DEL T:DRO ?65 ".
/Aat,-. LAW F
GEORGE W. MAUZE, II, ATTORNEY 2632 BROADWAY
SUITE 401 South
SAN ANTONIO, TEXAS 78216
TELEPHONE 210.225.5262
FACSIMILE'210.354.3909
EMAIL: gmauze@mauzelawtirm.corn
WWW.MAUZELAWFIRM,COM
June 11, 2013
PERSONAL & CONFIDENTIAL ClVIRRR #7012-3050-0002-3901-1372
Gerardo E. Carcarno, M.D.
414 Navarro, Suite 810
San Antonio, TX 78205
Re: Salvador Del Toro, Jr.
Dear Dr. Carcamo:
Please be advised that our law firm has been retained by Salvador Del Toro, Jr. to
represent him in any and all claims he may have against you arising from the facts stated herein.
On or about December 1.5, 2011, Mr. Del Toro was admitted to Nix Hospital after being
evaluated by Dr. James Lackey with the Riverwalk Clinic for increased lower abdominal pain,
nausea, and vomiting. After a CT scan obtained by the Riverwalk Clinic showed. findings of ".
a severely diseased sigmoid colon with underlying diverticular burden and a stricture," he was
referred to Nix Hospital where he was further evaluated and assessed by Bridget K. Fiechtner,
M.D. Based on Dr. Fiechtner's assessment and CT scan findings, Mr. Del. Toro was admitted for
further treatment and evaluation and discussed the patient's case with you. On December 16,
2011 Mr. Del Toro was seen in consultation by you. On the evening of December 17, 2011, you
ordered and Mr. Del Toro was given GoLYTELY for gastrointestinal prep prior to colonoscopy.
Shortly thereafter, he began having worsening abdominal pain throughout the evening with
vomiting, On December 18, 2011 at approximately 5:00 o'clock a.m., Mr. Del Toro had
worsening and change in the quality of his pain. He was sent emergently for a CT of the
abdomen and pelvis which revealed the presence of free air consistent with perforation of a
hollow viscus. You were called and Mr. Del Toro was emergently taken to the operating room
on December 18, 2011. Due to the perforation of his colon, you immediately performed a right
hemicolectorny, sigmoidectomy, and end-colostomy with Hartmann pouch and wound VAC
placement. On December 21, 2011, Mr. Del Toro underwent another surgery by you for
washout and wound VAC change. Mr. Del Toro remained hospitalized until December 30,
2011. Since then, Mr, Del Toro has necessitated frequent medical attention, necessitated and
undergone two additional corrective surgeries.
The complications associated from the perforation of his colon which you "expected",
have caused him severe pain and mental anguish, severe discomfort, disfigurement, and financial
hardship. Although, you clearly knew of his partial obstruction in his colon based on the CT
findings, you ordered GoLYTELY which is contraindicated in a patient suspected of having
gastrointestinal obstruction. You further state in your December 18, 2011, operative report, that
"Unfortunately he was unable to have a bm as expected' and he perforated.".
PLAINTIFF'S
EX MIT
Dr. Carcamo
June 11, 2013
Page 2
The foregoing acts and omissions to act constitute negligence. As a result of such
negligence, Mr. Del Toro has suffered severe medical complications associated with his
perforated colon.
In accordance with Chapter 74.051(a) of the Texas Civil Practices & Remedies Code, this
letter constitutes your sixty (60) days notice that Salvador Del Toro, Jr. intends to assert health
care liability claims against you. If this matter is not resolved within sixty (60) days, then a
lawsuit will be filed.
In an effort to settle this claim without the necessity of filing a lawsuit, my client hereby
tenders an offer of settlement to you in the amount of Eight Hundred Thousand Dollars
($800,000.00), such consisting of $250,000.00 for noneconomic damages plus economic
damages including loss of income, and health care expenses in the amount of $550,000.00.
Attached hereto is a release for medical records in accordance with §74.052 of the Texas
Civil Practice & Remedies Code. Additionally, please accept this letter as our request for copies
of any and all medical records, diagnostic studies, whether digital, or film. Enclosed herewith is
a HIPAA release authorizing you to provide true, correct, and complete copies of same.
The standard professional liability insurance policy requires that the insured promptly
give the insurance carrier notice of any claim. If you or your insurance carrier wish to discuss an
amicable and expedient resolution of this claim, then please do not hesitate to give me a call.
Very truly yours,
Geolie W. Mauze I
GWM/ag
enclosures
xc: Mr. Salvador Del Toro, Jr.
AUTH •RIZATION FORM FOR RELEASE OF P • OTECTED HEALTH INFORMATION
PURSUANT T TEX. CIV. PRA C. & REM. C • , DE, CHAPTE* 74 § 74.052
A. I, Salvador Del Toro, Jr. (name of patient or authorized representative), hereby
authorize Gerardo E. Carcamo, M.D. (name of physician or other health care provider to
whom the notice of health care claim is directed) to obtain and disclose (within the
parameters set out below) to Mame Law Firm the protected health- information
described below for the following specific purposes:
1. To facilitate the investigation and evaluation of the health care claim described in
the accompanying Notice of Health Care Claim; or
2. Defense of any litigation arising out of the claim made the basis of the
accompanying Notice of Health Care Claim.
B. The health information to be obtained, used, or disclosed extends to and includes the
verbal as well as the written and is specifically described as follows:
1. The health information in the custody of the following physicians or health care
providers who have examined, evaluated, or treated Salvador Del Toro, Jr.
(patient) in connection with the injuries alleged to have been sustained in
connection with the claim asserted in the accompanying Notice of Health Care
Claim:
Nix Hospital, 414 Navarro, San Antonio, TX 78205
Gerardo E. Carcamo, M.D., 414 Navarro, Suite 830, San Antonio, TX 78205
This authorization shall extend to any additional physicians or health care
providers that may in the future evaluate, examine, or treat Salvador Del Toro, Jr.
(patient) for injuries alleged in connection with the claim made the basis of the
attached Notice of Health Care Claim; and
2. The health information in the custody of the following physicians or health care
providers who have examined, evaluated, or treated Salvador Del Toro, Jr.
(patient) during a period commencing five years prior to the incident made the
basis of the accompanying Notice of Health Care Claim:
Riverwalk Clinic, 414 Navarro, Suite 809, San Antonio, TX 78205
Val Verde Regional Medical Center, 801 Bedell Avenue, Del Rio, TX 78840
Antonio Cadena, M.D., 2201 North Bedell, Suite A, Del Rio, TX 78840
C. Excluded Health Information—the following constitutes a list of physicians or health care
providers possessing health care information concerning Salvador Del Toro, Jr. (patient)
to which this authorization does not apply because I contend that such health care
information is not relevant to the damages being claimed or to the physical, mental, or
emotional condition of Salvador Del Toro, Jr, (patient) arising out of the claim made the
basis of the accompanying Notice of Health Care Claim: NQNE.
The persons or class of persons to whom the health information of Salvador Del Toro, Jr.
(patient) will be disclosed or who will make use of said information are:
1. Any and all physicians or health care providers providing care or treatment to
Salvador Del Toro, Jr. (patient);
2. Any liability insurance entity providing liability insurance coverage or defense to
any physician or health care provider to whom Notice of Health Care Claim has
been given with regard to the care and treatment of Salvador Del Toro, Jr.
(patient);
3. Any consulting or testifying experts employed by or on behalf of Gerardo E.
Carcamo, M.D. (name of physician or health care provider to whom Notice of
Health Care Claim has been given) with regard to the matter set out in the Notice
of Health Care Claim accompanying this authorization;
4. Any attorneys (including secretarial, clerical, or paralegal staff) employed by or on
behalf of Gerardo E Carcarno, M.D. (name of physician or health care provider
to whom Notice of Health Care Claim has been given) with regard to the matter
set out in the Notice of Health Care Claim accompanying this authorization; and
5. Any trier of the law or facts relating to any suit filed seeking damages arising out of
the medical care or treatment of Salvador Del Toro, Jr. (patient).
E. This authorization shall expire upon resolution of the claim asserted or at the conclusion
of any litigation instituted in connection' with the subject matter of the Notice of Health
Care Claim accompanying this authorization, whichever occurs sooner.
F. I understand that, without exception, I have the right to revoke this authorization in
writing. I further understand the consequence of any such revocation as set out in
Section 74.052, Civil Practice and Remedies Code.
G. I understand that the signing of this authorization is not a condition for continued
treatment, payment, enrollment, or eligibility for health plan benefits.
H. I understand that information used or disclosed pursuant to this authorization may be
subject to redisclosure by the recipient and may no longer be protected by federal HIPAA
privacy regulations.
Signature of
Date: 1
;//
Sal(vador"ljel Toro, Jr.
Patient's Name: Salvador Del Toro, Jr.
Patient's D.O.B.: 12.25.1973
Patient's SSN: 451.77.9676
AUTHORIZATI 0N FORM RELEASE OF PR TECTED HEALTH ONF 0RMATOON
A. 1, Salvador Del Toro, Jr., hereby authorize Gerardo E. Camara°, M.D. to obtain and
disclose to Mauze Law Firm (within the parameters set out below) the protected health
information described below for the following specific purposes:
1. To facilitate the investigation and evaluation of my potential claim for damages arising
from injuries 1 have sustained.
B. The health information to be obtained, used, or disclosed extends to and includes the verbal
as well as the written and is specifically described as follows:
1. The health information in the custody of the following physicians or health care
providers who have examined, evaluated or treated Salvador Del Toro, Jr. in
connection with the injuries alleged to have been sustained.
C. The persons or class of persons to whom the health information of
Salvador Del Toro, Jr. will be disclosed or who will make use of said information are:
1. Any and all physicians or health care providers providing care or treatment to
Salvador Del Toro, Jr.;
2. Any liability insurance entity providing liability insurance coverage or defense to any
person hereafter named as Defendant;
3. Any consulting or testifying experts employed by or on behalf of any person hereafter
named as a Defendant;
4. Any attorneys (including secretarial, clerical, or paralegal staff) employed by or on
behalf of any person hereafter named as a Defendant; and
5. Any trier of the law or facts relating to any suit filed seeking damages arising out of
the injuries and damages sustained by Salvador Del Toro, Jr.,
D. I understand that, without exception, I have the right to revoke this authorization in writing. I
further understand the consequence of any such revocation as set out in Section 74.052,
Civil Practice and Remedies Code.
E. I understand that the signing of this authorization is not a condition for continued Treatment,
payment, enrollment, or eligibility for health plan benefits.
F. I understand that information used or disclosed pursuant to this authorization may be subject
to redisclosure by the recipient and may no longer be protected by federal HIPAA privacy
regulations.
G. This authorization will expire 12 months from the date of execution by the representative of
the patient.
H. Copies of this Authorization shall be deemed the same as the original. Also, facsimile
copies or electronic versions of a signature of any party shall be deemed the same as the
original.
Signaturs,of-Elient:
Date:
Salve o lel Toro, t•
Name of Patient: Salvador Del Toro, Jr.
Patient's D.O.B.: 12.25.1973
Patient's SSN: 451.77.9676
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NIX HEALTH CARE SYSTEM
DISCHARGE SUMMARY
DATE Cr ADMISSION: 12/15,12011 PATE Of DISCHARGE: 1213012011
PRINCIPLE vAGNOBlt AT AOMISSIOlt Abdotrithal pain secondary to diverlitulitis With stricture.
PRINCIPLE DIAGNOSIS AT DISCHARGE: Dive,rticuntis with stricture statue post .colonic perforation
requiring right herniColectomy, signrioldoctomy, and end-co lostorri y with. Ha rlirria tin's pouch and wound
vacutare,assisted closure device (VAC.) placement,
ADDITIONAL k51 PLOW:4ES. EVALUATED ANDTREATIED DURING A DRAIISSION::
1. Leukocytosis.
2. ObstruOve sleep apnea,
3. Obesity.
4. Hypertension.
S,. Lett lower quadrant abscess.
CONSULTANTS: Dr.. Car ara° and Dr. Ravi 8.0tla,
PROCEDURES:
, The patient bindetwent a CT of the abdomen and pelvis which V+.1 .8 obtained b. the Riveraik
Clinic prior to adrrjstiOn- that showed a severely diseased sigrnoid colon with underlying
diwtiodiar burden and stricture.. There was questionable evidence. for mild acute •-akirnold
divatticAlfitis, More likely, there was chronic diverticulitis present. The stricture was of
particular concern and appeared to be partially obstructing the colon.
Patient also had an ultrasound of his abdomen and he was having right upper quadrant pain
upon arrival, Right upper qua.drent showed a fatty infiltrated liver with no Cholalithlaels or
oholecystitis.
8. On December le', a repeat CT of the abdomen and pelvis was obtained as patient had
increased abdominal pain and distress. There was no new onset of a prorninahl amount of
free air and air in the Wall of the proximal colon. There was still possible narrowing in the
sigmcid oaten wIthout definite mass seen.
4.. On December le. the patient was •lakeh einergently to the operating room for management
of his .perrorated views. He undement a right hemicoleotomy, sIgmcidectorny, and end•
color.lony with Hartmann pouch and- Wound V.AO.placrnent by Qs. Carcamo.
5. Finally, another CT was obtained On December 27, 2011 for a persistently elevated white
blood cell count. There was a suspected postoperatiVe flutd collection of 7 x 3.crri luet above.
the bladder anteriorly.
5: Subsequently, op December 2e, the patient had CT-guided drainage by Dr. \Williams and
drain placern via..) able to aspirate approximately 130 cc of brownish serous. liquid.
7. The patient had wound VAC changes throughout his hospitalization, last wound VAC change
was on Thursday, Decernbe:r 29, 2011.
PATIENT: DEuroRcr, SALVADOR j MEDIcAL RECORD :4'k 76,31-01
vATE OF BIRTH; 1202e/11978 AGE. 8 I PATIENT* ctologoome
SEE: HOSPITAL SERVICE: TEL
ADMISSION DATE: 12e1W2011 P.A.VENT LOCATION: 19TI1192101
Pap 1 a.f 4
DISCHARG'S SUMMARY
Ravi TsGfia,
Botla 0003
TO! RAVI, &itla, D FPum:Modloal riegoord$ 01/01/2012 05:31:M PM PAO', 3 0I 5
.111X0-1RALTH r i, SY,SITEM
DISGHARPIE ,S•Uitii1V11ARY
COUP:Sg: Mr., Del TOM is a 38,year-did gentleman whO. prdAierited tic the RiVerwalk
Clinic With prior iniStory of diVartiPtilktls, presenting with;increased abdorninal pain and rbausea. A CI
was obtained that showed the prasenw of diverticulitis Oh a s,trioture,. Flo lovas subsequently
admitted to the 1811' ilibor for furth&theatment and evaluation, The pal ient ',Vas, seen In oonsulWon
by Dr. Ciercamo on December 1153 2011, Sprgery was deterred initially arid Dr_ 'Botta of
gaStrOenterOlOgy wee rhnat.tltecd for poesiblie oPlonoscopy: On the evening of De-miter 17, 2011,
the patient Was given GoLYTELY for pastrointestinal prep prior to wionoixopy, He look the prep
do iti It eliliout clIffictifty but began having: Worsening abdoinInal pain throttahout the. OVetliN with
vomiting, A nasogastpio tii0p ),P as placard for cieoompresNon,, hut the pkidnt POintliqued to have
Significant pain, ,gir app,r6xihiately 5 atit. on the tOrnIri? of December 18; 2011, patient had
significant warsenihg and change in the Welty of hie pale). le Wet writ ernergently for a CT of the
abdomen and pelvis,- which revealed the presence of free air consistent with perfdatiOn Or a hollow
visale'?. Dr, Cart arno vies called and patient ,Ares erriatgently takers the operating *room on
December 16., 2011. The patient; at that bine, be:Qom febrile end had -a significant increase in his
white blood cell count,
Thepatient had a right hemicolectorny, signioldeotorny, rival end-colostomy with Hartmann'e poubh
and wound 'VAC placement arid. was Subsequently kept intubeted and: tranSIOTred to the MICU aiTer
his surgery, He was kept intubeted ai ha west° return to the opera ngi morn the following Tuesday.
Tha, patient did 'kqell, but tied hypetensiOn, 1.horeased white blood pall count and fever, consistent with
severe sense: He 'vieet cdritinued on Zorwri end Flagyl, votich had. bean initiated at the tirrie Of
admisiciri. The patent had Mild eCute renal failure throughout thls time as 1,,Aisti ,with a maximum
oreatInthe of 1,t54, The patent returned to the Operating morn on Wednesday, December 21h1, for
washout end wound VAC change., He toleratedth i ,Oithout any significant complioations. He was
exlubeted approximately 2:4 notn after true procedure and did well. He was kepi on BIPAP far a
short time and was trentltioned to nasal- oaninala. He V.,r2'4a continued on 9iPAP et night througttout his
hospitalization at patient likely has undiagnoSed obstructive sleep apnea.
The patient viral continued'. on broad spectrum antibiotics, He wee given nebazer bleatraente. Hi
l et wOls edvanOed and he had no diffloully Volith nausea, Votaltinz or worsening pain. He was
advanced to a regular diet on Monday, December 2€311', He tolerated HIS witheut any difficulty.
However, wae noted to have a persistently Wevateri vy:hite bio0 cell count, so he Was sent for a.
repeat GT on tineE.:Veining of Dthreniber.271b, CT revealed the aforementioned le tower quadrant
WO collection; This was thought to ha possibla ebecese, so he was sent to intenientlonal radiolo,gy
on December 20,, 2011 for percutaneous drainage. OTElirlage was. Perfumed as mentioned above
with a Small amount of brownish fluid liernoved end drain placed, The patient vihas. continued on p.c.
rta9y1 and. IV Zosyn the following day: I Ia had an traprovarrient Of hiS wflte blood cell ocpunt kern 17
down to 14,7. The 'following day. the day of disoharge, his white blood cell count continued to
enprocie and was doki.i.To to He Ch.ral transitioned to p.o. Atignientln and contlnued on p.o.
He is to continue these for one more week. His left 'lower quadrant drain wid. putting out very little
Serosanguinepue. fluid and was dImIntin tied prior to his discharge,
DELT° RO, MEDIcAL R 3 Mal A:14
PATIENT; p
DATE O DIRTHi 12&5.,11 75 AGE: 3a PhTIEKT 0004130M
SEX: VIOPITALIIERVICE: TEL
A Elifin5S10111 OATS 121115t2i11 PATiEKT LO CA1101.4: -P9TF-119:21M
P•rion, 2 eitt4
MOINAki05 SUMMARY
OA
Si
Rotla 0004
TO:AI:VA Nei; Iledioal .nboioiric;;s 01 /017241R ilF; .tiriasie 4 0.1
NIX HPALTH AR,E, -.SYSTEM
:0$011AROI .StillINTAIV
,901,111ci VAC Obandes every three
The patient oontinuet to 'neve a Wound VAC in glace, rile Will hav01
days.. down at Valverde Regional Medical Center, He will foilowup with Dr. atimanio and Dr. OUnn
apprOirnately two ih,!eolk%
V:
PHYSICAL EXAMMATI100.1!
VITAL SiOPIS; Terriper&Ire Was. 07,7; respirations 20, plul.,-9e 00, blood pretswe 1'38/84, 02
setureition ',Vas PI oh room air.
EN1fRAL.: He woo well neurtished, and well developed. He was fri no acute distress,
14G: NT: Unremarkable,
v.!
NlUCKo $uppl'e re
CAP4p101/A SOLI LAR.: Reguilar fate and rhythm, Normal $1, SZ No 93 or
LLINGs: Lungswere Clear to auscultation bilaterally,
ABDOMEN: His abdomen is obew.. Hw hes a roidlIine incision that is closed wound VAG. The
edoes, appear to be granulating, There is no surrounding erythema, Fie has e. left-sMed colostomy
that is putting, out brown stool and air, His abdomen issoft,; riontender, and nordistended,
LOWER t XTREMIT1ES: There was no dubbing, cyanosis, or edema.
INEUIROLOdIC:
IMEDlOATiONS AT tnOillAi10,6;
1. Tylenol 500 rn g every six hours as needed for pain;
Augmantin (i.75 mg litilpe daily for seven more-days,
a Elentyl one tablet twim a day for oramping.
4. Lorteb 10/600 one tablet every four hours as; needed for pain.
5, riauyi 50J rota evely eight hours for seven more days,
6, ProtoniX 40 mg once delly,
7. Tram ado' 50 Mg one tablet evvry six hours as needed for pain.
IDI$CHAROE PLAN:: The patient will he dis- oharood: back to home in the dere of his family. He will
be obtaining wound care f011owtip and Wound VAC, changes at Valverde Regional Medital Center,
fie is to folgowup kedith trim on Monday; 4e.iniRry 2, 2012, He will return to San Antonio to see Dr.
Carcarrio and Dr, Dunn in Rpprogmately trio 'v,reeks, He can resume a regular list, He is to inorease
his activities per his postoperative instructions.
ISSLWS To, RE A.DiDKSSED AT FOLLOWUP1
1 Routine boatop.ratiVe care b' Dr, CprOarril.O, 'hvound VA0 cars by Dr: DUnn.
2, Fa hi s• prjrnMi-care phySlolan, paflent ra ill need falowup of likely ObstrUctiwsleep apneie.
outpatient sleep study.
3; PsIlont should 'ale° ha !e further evaluation of his hypertension to ensure that it obrittnues to be,
adequately contr011ed, The patient will nerd followUp labs in. two woks when ilia has
completed his aniifolottos to ensure that his leukopytogis hes resolved, He has a Wight
PATIENT: — ii#12ttiko,,t0.1_,Viitio MEDICAL REiciiRI:10: 70-3i-01
aiiii./ OF aIRTHii. ; l'Aiiili$MriL3 AGE,: 3B PA-NEN-FM arrliDOICtoino
' SEX! ! nil HOSPITAL SERVICE: TEL
AcimissioN DATE! i opt$Mii PATIENT LOCATION; ,
_j . ,,
Pnge ,of 4
DiiscHAFIGE SUMMAR?
Botta 0005
TollAvi RIAU, N.D. FrOmMediCal Ruuords 01/01/2012 0::12:011 PM Pitp:e 5 Of 5
NIX HEALTH MARE SYSTE1Vi
DISOHAReg SUMMARY
thrombocytosis, Out this is likely reactive and Is bone marrow recovery from his recut acute
illness.
TIME SPENT ON D[DOFIAROE; Greater tha-n 30 mirnittas.
aridget K. Pie-ollitner, M.P.
EgFitmo
DD: 121302011 1:39 P
DT: 01/0f12012 4:05 IP
CoD328581
co: Ravi Botlo., M,D,
Antonio eadena,
Gerardo Carbarrit, M.D.
Robert N. Dunn, M.D.
E3ridget K. Fiechkner,, NI, D. Fr
Armando Quinones, M.D.
r.
PATIENT: DELTORO, SALVADOR rAgoicAL RECORD 4: 7.6-31-01
DATE OFIIIIRTH: 12.125d1973 AGE 3$ PAVNT ti: d01130,40330
SEX; M HoSPETA I. SERIOGE: TEL
ADMISsfON DATE; 12115'2011 i PATIENT LOCATION!: 1911119210
I. .v. :••,.."•••••••,. •••;• , •
•••
Page 4 of 4
DIS014A h SUMMA ir
ran.
8otla 0006
To:Ravi Bona, M.D. FromINedical HOotird8 12/17/2011 OS:32:15 AM Page 4 o.f
NIX HEALTH CARE SYSTEM
CONSULTATION REPORT
CONSULTANT: Ravi Both, M.D. DATE OF CONSULT; 12/17/2011
PRIMARY CARE PHYSICIAN: Dr. Sr Sornasundaravelayudha
PRIMARY REASON FOR CONSULTATION: Left loWer quadrant abdominal pain and diverticulitis.
HISTORY: Dr, 8. Somasundaravelayudha kindly asked me to evaluate Mr, DelToro, who is a 37-
year-old morbidly obese Latin-American male, who was admitted on 12/15/11 for diverticulitis.
History of left lower quadrant abdominal pain for three days duration without any characteristic
radiation associated nausea, vomiting. No history of constipation, diarrhea, stool bleeding Or melena,
History of similar episode two to three weeks ago, three months ago and three to four Months ago,
He apparently seen at. the ER In Austin for a prior evaluation: No history of fever. No history of weight
loss.
PAST MEDICAL HISTORY: Significant for hypertension, morbid obesity,
PAST SURGICAL HISTORY: None,
SOCIAL HISTORY: The patient Works as an officer at a correction facility. Ten pack history of
smoking: No history of drinking. No history of substance abuse.
FAMILY HISTORY: Nil particular for gastrointestinal malignancies or liver diseases.
MEDICATIONS: Before coal ing to the hospital he was on Bentyl.
In the hospital, he Is on
1, Lisinopril.
2. Metronidazole.
3. Zosyn,
4. Docusate sodium:
ALLERGIES: None.
REVIEW OF SYSTEMS: Denies any history of chest pain; history of abdominal pain present, history
of nausea or vomiting presently, No history of constipation, diarrhea, rectal bleeding or melena.
EXAMINATION: The patient is alert, well oriented, morbidly obese Latin-American male not in any
acute distress.
VITAL SIGNS: Palsy 88/minute, respiratory rate 20/minute, blood pressure 183/86, afeb rif e,
FENT; No jaundice.. Bilateral significant parotid enlargernenL A short thin neck is seen.
HEART: 81 present, 82 present, 83 zero, no murmurs,
PATIENT - DELTORO,SALVADOp MEDAL REC0RDW: ' 70-31-01
DATEOFBIRTH: 12/26/1973 ACE: 37 PATIENTM 00104300330
SEX: M HOSPITALSRVICF: IVIED
ADiVIISSION DATES 12/15/2011 PAII.ENTLOCATION: 18TH181701
--- • , - - .:.--• .: Page 1 oi 3 — Sri
CONSULTATION REPORT
,
PA:lionar IS,657
•
Botla 0007
To:Ravi Bow,, M.D. From:Medical Records .12/17/2011 M32:27 All Pan 5. of 6
NIX HEALTH CARE SYSTEM
CONSULTATION REPORT
LUNGS: Clear bilaterally with good air entry,
ABDOMN: Morbidly obese abdomen, Tenderness present in the right side of the abdomen in the
left lower quadrant region without any guarding or rebound. Bowel sounds are good: No palpable
hepatosplenorriegaly, no palpable mass lesiens in the abdomen.
EXTREMITIES; Lower extremities, no pedal edema.
NEUROLOGICAL: Alert; well oriented, no gross motor deficits.
LABS: White count 16.6000, hemoglobin 14,2, hernatocrit 41.3, platelet count 348,000, prothrombin
time of 12.1 seconds with an INR of 1.1, CHEM panel is normal except for potasskim of 3,4 Liver
function tests were normal: Amylase and lipase Were normal,
Right upper quadrant sonogram showed gallstones and fatty liVer.
CT of the abdomen and pelvis showed severe sigmoid colon divertioulosis and mild diverticulitis,
sigmoid colon stricture, no abscess.
IMPRESSION: Thirty-seven-year-old morbidly obese Latin-Ameritan male, with history of
hypertension, diverticulitis presented with recurrent diverticulitis, The patient has three episodes of
diverticulitis in the lest four years duration, mild tenderness in the left lower quadrant and right side of
the abdomen, The patient has evidence of siginoid colon stricture by imaging studiesj this Is most
likely secondary to recurrent diverticulitis and fibrosis. I need to rule out Malignancy. Apparently, the
patient never had a celorioscopy after previous episodes of diVertioulitis. The current episode of
diverticulitis seems to be mild,
PLAN: Clear liquid diet. Continue empiric antibiotics, Colon prep today and I recommend a
colonosoopy for further evaluation. The procedure, benefits, alternatives and complications Including
bleeding, perforation and aspiration and respiratory difficulties from his morbid obesity were explained
to the patient and his family members at the bedside, He is very skeptical about colonoscopy and
biopsies at this time. He has not decided about proceeding with the colonoscopy study, I will
schedule the colonoscopy in one or two days time if the patient consents for the procedure.
Thank yeti very much for allowing me to evaluate Mr, DelToro,
Ravi Botta,
•.
r•
f WNW': DELTOPO, SALVADOR MEDICAL RECORD II; 7.641-01
DATE OF BIRTH: 120/1V3 AGE 37 PATIENT #: 06.164300330
SEM M I-1QSPITAL SERVICE: MED
ADMISSION DATE: 12115=11 PATIENT LOCATION: 1511-MS1701
Page 2 of 3
CONSULTATION REPORT
Anvi
oti a 0008
To: Ravi Bot la M.D Fvoa: Med icla I R060.1043 12.1.1.7/2011 09:32:4 1 AM Page 8 of 8
NIX HEALTH CARE SYSTEM
CONSULTATION REPORT
R6/nhn
OD: 12/17/2011 7:62 A
DT: 12/17/2011 8:541A
000326885
cc: RW(l BofI8, M.D.
Gerardo Ceicamo, M,D,
Bridget K Fiechtner, M,D,
Arfnendo Quinones, MR
S. Somesundaravelayudhe, M,D,
i PN17:1ENT: DELTORD, SALVADOR . IVIEDICAL. RECORD M 76,:31.01
DAtE OF $111T14: 12/264078 AGE: 37 PATIENT #; 1 00104300330
SEX: IVI HOSPITAL SERVICE: I MED
ADMISSION DATE: 12115/2011 PATIENILOCATIGN: I 18TH1070.1
Page 3 of 3
CONSULTATION REPORT
. . . „ .
(km-1130ila, M.D.
Botla 0009
Observation Detail Report
NIX HEALTH CARE SYSTEM DELfORO, SALVADOR
414 NAVARRO SUITS 1720 MRN: 76,31,01 Service, TEL.
SAN ANTONIO, TX 782052622 Account: 104350330 DOB: 12/25/1973
Ad Whys: FlECHTNER, BRIDGET Age: 38 y
Admit Oh 12/15/2911 S'ex: Ni
pisoh Of: 12/3012611 LM: 15 days
ObSelvetion: CT ABDOMEN/PELVIS *CON
Result:
***Final Radiology Report "-'
CT ADD/PEI. W/CONTRAST DATE OE EXAM: Dec 27 2011
HISTORY Severe sepsis
RESULT:
TECHNIQUE: Multiple transaxiel iniages Obtained from the lung bases
throtigh the level of the pubic syrilphysiS after the adinfrilatration of IV
contrast,
COMPARISON:. Direct comparison is made with the previous enhanced CT scan
of the abdomen and pelvis dated 12/18/201i.
FINDINGS: The lung bases again demonstrate moderathly extensive
bibasilar atelectasis with small effuSions.
There is normal enhancement of the liver, spleen, pancreasi and kidneys.
Small subcentimeter benign left adrenal:nodule is Identified. The
gallbladder is unremarkable,
Interval postoperative changes are rioted with. cOlpstomy in the left lower
quadrant. There is a small arothint of fmq4eeti:jUst about.the tip of
the liver, as well as a small amount of interSpersed between bowel
loops and just above the bladder (akial irnage'.262),
Images through the remainder of the pelvis are largely unremarkable,
Overall the study is limited secondary to lack of oral contrast. There
are a group of suspected unopacified loops of bowel in the mid pelvis
centrally (Image 232), There are adjacent suspected unopacified bowel
loops with overall the study being limited secondary to a leek of oral
contrast.
No subcutaneous abscess or fluid collection.
IMPRESSION:
1. Extensive postoperative changes with colostomy in the right lower
quadrant,
2. Suspected postoperative fluid collection 7 x 3 cm, just above the
bladder anteriorly. This likely represents postoperative fluid however
Infection cannot be excluded.
Printed by: NI-IRGANES on 2/14/2012 14:10 DLTORO, SALVADOR
ftplGndu ii
Page 1 of 2
Botta 0018
UW111,110L payunkueut.
.a
Patient Receipt
DigeStwe Disease Center Monday, March 24, 2014
P®t ox 17650 rriA3 n tP
San Antonio, TX 78217-0650
(210) 2534423
Salvador DelToro
108 King Charles
Del Rio, TX 78840
be& • suranck., atiegt
Salvador DelToro(90603)/Ravi Botta MD/075056
12/17/2011 Initial inpatient consultation for a new or established patient, level #4 $322.00 1.0 $322.00 $0.00
12/18/2011 Subsequent hospital care, per day, level #1 $86.00 1,0 $86.00 $0.00
01/20/2012 Payment from UMR $0.00 $0.00
02/23/2012 Contractual Adjustment from UMR 00003756 -$156.50 $0.00
02/23/2012 Payment from UMR 00003756 -$251.50 $0.00
Balance: $0.00 $0.00
Salvador DelToro(90603)/Ravi Ganeshappa MD/075202
12/19/2011 Subsequent hospital care, per day, level #1 $86.00 1,0 $86.00 $0.00
12/20/2011 Subsequent hospital care, per day, level #1 $86.00 1.0 $86.00 $0.00
02/13/2012 Payment from UMR $0.00 $0.00
02/13/2012 Payment from UMR $0.00 $0.00
02/13/2012 Transfer from Insurance -$172.00 $172.00
02/23/2012 Contractual Adjustment from UMR 00003756 -$74.08 $0.00
02/23/2012 Payment from UMR 00003756 -$97.92 $0.00
/2012 Transfer from Insurance 00003756 $172.00 -$172.00
Balance: $0.00 $0.00
Salvador DelToro(90603)/Ravi Ganeshappa MD/075279
12/26/2011 Subsequent hospital care, per day, level #1 $86.00 1.0 $86.00 $0.00
06/13/2012 Contractual Adjustment from UMR 00003920 -$37.04 $0.00
06/13/2012 Payment from UMR 00003920 -$48.98 $0.00
Balance: $0.00 $0.00
Salvador DelToro(90603)/Ravi Ganeshappa MD/075292
12/22/2011 Subsequent hospital care, per day, level #1 $86.00 1.0 $86.00 $0.00
12/23/2011 Subsequent hospital care, per day, level #1 $86.00 1.0 $86.00 $0.00
12/25/2011 Subsequent hospital care, per day, level #1 $86.00 1.0 $86.00 $0.00
06/13/2012 Contractual Adjustment from UMR 00003920 -$111.12 $0.00
06/13/2012 Payment from UMR 00003920 -$146.88 $0.00
Balance: $0.00 $0.00
. Tot4tBildride.
Digestive Diseases Center of So. TX * 414 Navarro Street * San Antonio, TX 78205-2516 * (210) 271-1800
Botta 0020
Angie Guerrero
From: Angie Guerrero
Sent: January 08, 2014 3:09 PM
To: 'Richard Wagner'
Cc: 'Nicole Walls'
Subject: Del Toro v. Carcamo
Attachments: Rule 11.pdf
Dear Mr, Wagner,
Please see attached proposed Rule 11. Please note that instead of faxing the attachment as reflected, I will place
the original mail so that you may have the original authorization.
Sincerely,
Angie Guerrero, Paralegal
Mauze Law Finn
2632 Broadway, Suite 401S
San Antonio, Texas 78215
Tel: 210.225.6262
Fax: 210.354.3909
atuerrero@rnauzelawfirrn . co m
** CONFIDENTIALITY NOTICE **
The information contained in this E-Mail is privileged and confidential and is intended only for the use of the
addressee. The term "privileged and confidential" includes, without limitation, attorney-client privileged
communications, attorney work product, trade secrets, and any other proprietary information. Nothing in this
message is intended by the attorney of the client to constitute a waiver of the confidentiality of this message. If
the reader of this message is not the intended recipient, or employee/agent of the intended recipient, you are
hereby notified that any duplication or distribution of this communication is unauthorized, If you have received
this message in error, please notify us immediately.
MALLE LAW FIRM
GEORGE W NIALIZE. II. ATTORNEY 2832 BROADWAY. SUITE 401 SOUTH
SAN ANIONIC). TEAAS 7E215
TELEPHONE 210.:1562 262
;.'ACSNAILE 210.354.3909
Mak ginmatiVipna..rtelnwiinn
January 8, 2014
VIA EMAIL .1 FAX
Mr. W. Richard Wagner, Esq.
Wagner Carlo, 1,1.,P
7718 Broadway, Suite 100
San Antonio, TX 78209
Re: Del Toro v. Carcamo; Cause No. 2013-C1-19135
Dear Richard:
In response to your Defendant's answer filed on December 16, 2013. enclosed herewith
please find an executed authorization in accordance with Ch. 74.351 of the Tex. Civ. Prac.
Rem. Code allowing the disclosure of medical records to Defendant.
With regards to your request for an abatement, I would suggest that in accordance with
Ch. 74.351(s) all discovery including depositions be stayed until after Plaintiff serves his
expert's report and curriculum vitae in accordance with Tex. Civ. Prac. & Rem. Code, § 74.351.
Therefore, Plaintiff's deadline to respond to Defendant's request for disclosure will be on
or before April 21. 2014 (April 191h falls on a Saturday), which is 30 days from the date Plaintiff
is required to serve his expert's report and curriculum vitae (March 20. 2014).
Please sign below if you agree to the above and we will file this letter as our Rule 1.1
agreement.
Of course, if you have any questions or wish to discuss this matter. then give me a call.
Sincerely.
Gedige W. Maud, 11
G W Wag
enclosure
Agreed: Date:
W. Richard Wagner
AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION
PURSUANT TO TEX. CIV. PRAC. & REM. CODE, CHAPTER 74 § 74.052
1, Salvador Del Toro, Jr. (name of patient or authorized representative), hereby authorize
Gerardo E. Carcamo, M.D. (name of physician or other health care
provider to whom the notice of health care claim is directed) to obtain and disclose
(within the parameters set out below) the protected health information described below
for the following specific purposes:
1. To facilitate the investigation and evaluation of the health care claim described in
the accompanying Notice of Health Care Claim; or
2. Defense of any litigation arising out of the claim made the basis of the
accompanying Notice of Health Care Claim.
The health information to be obtained, used, or disclosed extends to and includes the
verbal as well as the written and is specifically described as follows:
1. The health information in the custody of the following physicians or health care
providers who have examined, evaluated, or treated Salvador Del Toro, Jr.
(patient) in connection with the injuries alleged to have been sustained in
connection with the claim asserted in the accompanying Notice of Health Care
Claim:
Nix Hospital, 414 Navarro, San Antonio, TX 78205
Gerardo E. Carcamo, M.D., 414 Navarro, Suite 830, San Antonio, TX 78205
This authorization shall extend to any additional physicians or health care
providers that may in the future evaluate, examine, or treat Salvador Del Toro, Jr.
(patient) for injuries alleged in connection with the claim made the basis of the
attached Notice of Health Care Claim; and
The health information in the custody of the following physicians or health care
providers who have examined, evaluated, or treated Salvador Del Toro, Jr.
(patient) during a period commencing five years prior to the incident made the
basis of the accompanying Notice of Health Care Claim:
Riverwalk Clinic, 414 Navarro, Suite 809, San Antonio, TX 78205
Val Verde Regional Medical Center, 801 Bedell Avenue, Del Rio, TX 78840
Antonio Cadena, M.D., 2201 North Bedell, Suite A, Del Rio, TX 78840
C. Excluded Health Information—the following constitutes a list of physicians or health care
providers possessing health care information concerning Salvador Del Toro, Jr. (patient)
to which this authorization does not apply because I contend that such health care
information is not relevant to the damages being claimed or to the physical, mental, or
emotional condition of Salvador Del Toro, Jr. (patient) arising out of the claim made the
basis of the accompanying Notice of Health Care Claim: NONE.
D. The persons or class of persons to whom the health information of Salvador Del Toro, Jr.
(patient) will be disclosed or who will make use of said information are:
1. Any and all physicians or health care providers providing care or treatment to
Salvador Del Toro, Jr. (patient);
2. Any liability insurance entity providing liability insurance coverage or defense to
any physician or health care provider to whom Notice of Health Care Claim has
been given with regard to the care and treatment of Salvador Del Toro, Jr.
(patient);
3. Any consulting or testifying experts employed by or on behalf of Gerardo E.
Carcamo, M.D. (name of physician or health care provider to whom Notice of
Health Care Claim has been given) with regard to the matter set out in the Notice
of Health Care Claim accompanying this authorization;
4. Any attorneys (including secretarial, clerical, or paralegal staff) employed by or on
behalf of Gerardo E. Carcamo, M.D. (name of physician or health care provider to
whom Notice of Health Care Claim has been given) with regard to the matter set
out in the Notice of Health Care Claim accompanying this authorization; and
5. Any trier of the law or facts relating to any suit filed seeking damages arising out of
the medical care or treatment of Salvador Del Toro, Jr. (patient).
E. This authorization shall expire upon resolution of the claim asserted or at the conclusion
of any litigation instituted in connection with the subject matter of the Notice of Health
Care Claim accompanying this authorization, whichever occurs sooner.
F. I understand that, without exception, I have the right to revoke this authorization in
writing. I further understand the consequence of any such revocation as set out in
Section 74.052, Civil Practice and Remedies Code.
G. I understand that the signing of this authorization is not a condition for continued
treatment, payment, enrollment, or eligibility for health plan benefits.
H. I understand that information used or disclosed pursuant to this authorization may be
subject to redisclosure by the recipient and may no longer be protected by federal HIPAA
privacy regulations.
Signature of Patient:
Date:
Salvador Tdro, Jr.
Patient's Name: Salvador Del Toro, Jr.
Patient's D.O.B.: 12.25.1973
Patient's SSN: 451.77.9676
Angie Guerrero
From: Angie Guerrero
Sent: January 24, 2014 2:09 PM
To: 'Lynn Laursen'
Cc: 'Richard Wagner``
Subject: Del Toro v. Carcamo
Attachments: Ltr enc Ch, 74 auth,pdf
Lynn,
Attached is a copy of the Ch. 74 authorization, We will put the original in the mail today.
Sincerely,
Angie Guerrero, Paralegal
Matta'. Law Firm
2632 Broadway, Suite 401S
San Antonio, Texas 78215
Tel: 210,225.6262
Fax: 210.354.3909
aguerreroAmauzelawfirm.com
** CONFIDENTIALITY NOTICE **
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addressee. The term "privileged and confidential" includes, without limitation, attorney-client privileged
communications, attorney work product, trade secrets, and any other proprietary information, Nothing in this
message is intended by the attorney of the client to constitute a waiver of the confidentiality of this message. If
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this message in error, please notify us immediately.
MAUZE LAW FIRM
GEORGE W. MAuZt II. ATTORNEY 2632 OROADwAY. SUITE .101 SOUTH
SAN ANTONIO. TEXAS 7621S
TELEPHONE 210 225.3.362
FACSIMILE 210 354 39O
EMAIL: gmatizoOmauzolawfilm cora
January 23, 2014
VIA EMAIL d REGULAR MAIL
Mr. W. Richard Wagner, Esq.
Wagner Carlo, LIP
7718 Broadway, Suite 100
San Antonio, TX 78209
Re: Del Toro v. zircatno; Cause No. 2013-C1-19135
Dear Richard:
Enclosed herewith please find an updated executed authorization in accordance with Ch.
74 with regard to the above-referenced matter.
If you have any questions or wish to discuss this matter, then give me a call.
Sincerely,
George W. Maize, 1.1
(3WM/ag
enclosure
AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION
PURSUANT TO TEX. CIV. PRAC. & REM. CODE, CHAPTER 74 § 74.052
I, Salvador Del Toro, Jr. (name of patient or authorized representative), hereby
authorize Gerardo E. Carcarno, M.D. (name of physician or other health care provider to
whom the notice of health care claim is directed) to obtain and disclose (within the
parameters set out below) the protected health information described below for the
following specific purposes:
1. To facilitate the investigation and evaluation of the health care claim described in
the accompanying Notice of Health Care Claim; or
2. Defense of any litigation arising out of the claim made the basis of the
accompanying Notice of Health Care Claim,
B. The health information to be obtained, used, or disclosed extends to and includes the
verbal as well as the written and is specifically described as follows:
1. The health information in the custody of the following physicians or health care
providers who have examined, evaluated, or treated Salvador Del Toro, Jr.
(patient) in connection with the injuries alleged to have been sustained in
connection with the claim asserted in the accompanying Notice of Health Care
Claim:
Nix Hospital, 414 Navarro, San Antonio, TX 78205
Gerardo E. Carcamo, M.D., 414 Navarro, Suite 830, San Antonio, TX 78205
Metropolitan Methodist, 1310 McCullough Avenue, San Antonio, TX 78212
Ravi Botla, M.D,, FACG, Digestive Diseases Center of South Texas, PILO., 621
Camden Street, Suite #202, San Antonio, Texas 78215
This authorization shall extend to any additional physicians or health care
providers that may in the future evaluate, examine, or treat Salvador Del Toro, Jr.
(patient) for injuries alleged in connection with the claim made the basis of the
attached Notice of Health Care Claim; and
2. The health information in the custody of the following physicians or health care
providers who have examined, evaluated, or treated Salvador Del Toro, Jr.
(patient) during a period commencing five years prior to the incident made the
basis of the accompanying Notice of Health Care Claim:
Riverwalk Clinic, 414 Navarro, Suite 809, San Antonio, TX 78205
Val Verde Regional Medical Center, 801 Bedell Avenue, Del Rio, TX 78840
Antonio Cadena, M,D,, 2201 North Bedell, Suite A, Del Rio, TX 78840
C. Excluded Health Information—the following constitutes a list of physicians or health care
providers possessing health care information concerning Salvador Del Toro, Jr. (patient)
to which this authorization does not apply because I contend that such health care
information is not relevant to the damages being claimed or to the physical, mental, or
emotional condition of Salvador Del Toro, Jr. (patient) arising out of the claim made the
basis of the accompanying Notice of Health Care Claim: NONE.
D. The persons or class of persons to whom the health information of Salvador Del Toro, Jr.
(patient) will be disclosed or who will make use of said information are:
Any and all physicians or health care providers providing care or treatment to
Salvador Del Toro, Jr. (patient);
2. Any liability insurance entity providing liability insurance coverage or defense to
any physician or health care provider to whom Notice of Health Care Claim has
been given with regard to the care and treatment of Salvador Del Toro, Jr.
(patient);
3. Any consulting or testifying experts employed by or on behalf of Gerardo E.
Carcamo, M.D. (name of physician or health care provider to whom Notice of
Health Care Claim has been given) with regard to the matter set out in the Notice
of Health Care Claim accompanying this authorization;
4. Any attorneys (including secretarial, clerical, or paralegal staff) employed by or on
behalf of Gerardo E. Carcamo, M.D. (name of physician or health care provider
to whom Notice of Health Care Claim has been given) with regard to the matter
set out in the Notice of Health Care Claim accompanying this authorization; and
5. Any trier of the law or facts relating to any suit filed seeking damages arising out of
the medical care or treatment of Salvador Del Toro, Jr. (patient).
E. This authorization shall expire upon resolution of the claim asserted or at the conclusion
of any litigation instituted in connection with the subject matter of the Notice of Health
Care Claim accompanying this authorization, whichever occurs sooner.
F. I understand that, without exception, I have the right to revoke this authorization in
writing. I further understand the consequence of any such revocation as set out in
Section 74.052, Civil Practice and Remedies Code.
G. I understand that the signing of this authorization is not a condition for continued
treatment, payment, enrollment, or eligibility for health plan benefits.
H. I understand that information used or disclosed pursuant to this authorization may be
subject to redisclosure by the recipient and may no longer be protected by federal HIPAA
privacy regulations.
Signature of Patient:
Date:
SalVador el Toro, Jr.
Patient's Name: Salvador Del Tom, Jr.
Patient's D.O.B.: 12.25.1973
Patient's SSN: 451.77.9676
2011
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APPENDIX TAB “H”
FILED
9/11/2014 5:34:00 PM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Monica Hernandez
CAUSE NO. 2013-CI-19135
SALVADOR DEL TORO, JR. IN THE DISTRICT COURT
vs. 131ST JUDICIAL DISTRICT
GERARDO E. CARCAMO, M.D. AND
RAVI BOTLA, M.D. BEXAR COUNTY, TEXAS
REPLY
TO PLAINTIFF'S OPPOSITION TO
RAVI BOTLA, M.D.'S MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant, Ravi Botla, M.D. ("Dr. Botla"), respectfully files this his Reply to
Plaintiff's Opposition to his Motion for Summary Judgment, which was based on the
ground that Plaintiff's claims against him are barred by the applicable two year statute of
limitations. In further support of his motion and in reply to Plaintiff's Opposition, Dr. Botla
respectfully shows the Court the following:
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff has sued Dr. Botla alleging claims of negligence arising out of medical
care and treatment Dr. Botla provided to Plaintiff on December 17, 2011. Specifically, as
stated in Plaintiff's Third Amended Original Petition, the allegations arise out of Dr. Botla's
recommendation for colonoscopy and order for GoLYTELY for gastrointestinal prep on
the theory that the colon prep contributed to the bowel perforation. These events occurred
on December 17, 2011.
Plaintiff filed his Original Petition on November 20, 2013, naming only co-
defendant Dr. Carcamo as a defendant. Prior to filing suit against Dr. Carcamo, on June
11, 2013, Plaintiff served Dr. Carcamo with a notice letter as required by Chapter 74.
However, he failed to include with that notice letter a compliant authorization as required
by Chapter 74. As a result, Dr. Carcamo moved to abate the proceedings for 60 days as
allowed under Chapter 74 when Plaintiff does not comply with the notice and authorization
requirements. Since suit was filed against Dr. Carcamo within the two year statute of
limitations, abatement was his only recourse. In response to Dr. Carcamo's plea in
abatement, on January 8, 2014, Plaintiff sent Dr. Carcamo's counsel a revised
authorization "in accordance with Ch. 74.351 of the Tex. Civ. Prac. & Rem. Code allowing
the disclosure of medical records to Defendant." A few weeks later, Plaintiff provided Dr.
Carcamo with another revised authorization listing two additional providers.
It was not until March 3, 2013, 2 years and 76 days after Dr. Botla provided the
care at issue, that Plaintiff amended his Petition to include Dr. Botla as a defendant.
However, Plaintiff's claims against Dr. Botla are barred by the 2 year statute of limitations
in Chapter 74. Plaintiff does not get the benefit of the 75 day tolling period found in
Chapter 74 since he failed to serve a statutory sufficient authorization on any health care
provider within two years of the at-issue care and treatment provided by Dr. Botla. Even
had Plaintiff timely served one of the health care providers with a sufficient authorization,
which would have tolled the statute by 75 days, since the lawsuit was filed 2 years and
76 days after the care at issue was provided, Plaintiff's lawsuit against Dr. Botla was still
filed after the expiration of the absolute 2 year statute of limitations.
In light of the above, on August 14, 2014, Dr. Botla filed his Traditional Motion for
Summary Judgment. Plaintiff filed his response to that motion on September 4, 2014.
Although Plaintiff has offered this Court additional summary judgment evidence to
consider, that evidence does not change the fact that Plaintiff's lawsuit was filed after the
2
passing of the statute of limitations. If anything, the evidence provided by Plaintiff further
solidifies that Plaintiff's pre-suit authorization was ineffective to toll the statute of
limitations.
SUMMARY JUDGMENT EVIDENCE
In addition to the summary judgment evidence offered in Dr. Botla's Motion for
Summary Judgment, Dr. Botla additionally relies on the summary judgment evidence
offered by Plaintiff and hereby incorporates by reference Exhibits 1-7 of Plaintiff's
Opposition to Defendant Ravi Botla, M.D.'s Motion for Summary Judgment.
ARGUMENTS & AUTHORITIES
Plaintiff's amended pleadings and summary judgment evidence notwithstanding,
since Plaintiff did not file his suit against Dr. Botla until 2 years and 76 days after the care
at issue was provided, his lawsuit against Dr. Botla was filed 76 days late and is time
barred. Plaintiffs cause of action accrued on December 17, 2011, such that the two year
statute of limitations expired on December 17, 2013; he was not entitled to the 75 day
tolling provision found in Chapter 74 because he did not provide any healthcare provider
with a compliant authorization for release of medical records prior to the passing of the
two-year statute. Even had Plaintiff complied with the requirements of Chapter 74 and
provided a statutory sufficient authorization within the limitations period, so as to toll the
statute for 75 days, Plaintiff's lawsuit would have still been untimely filed by 1 day.
3
A. The Accrual Date was December 17, 2011 despite Plaintiff's amended
pleadings.
Chapter 74 measures the limitations period for medical negligence claims from one
of three dates: (1) the occurrence of the breach or tort, (2) the last date of the relevant
course of treatment, or (3) the last date of the relevant hospitalization. TEX. Civ. PRAC. &
REM. CODE §74.251(a); Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001)(applying almost
identical language of predecessor statute). However, a plaintiff may not choose the most
favorable date that falls within those three categories. Id. Rather, if the date the alleged
tort occurred is ascertainable, limitations must begin on that date without further inquiry.
Id. If a defendant committed an alleged tort on an ascertainable date, whether plaintiff
can establish a course of treatment is immaterial because limitations begin to run on the
ascertainable date, regardless of the dates of the subsequent treatment. Id.
Plaintiff's allegations against Dr. Botla relate to his recommendation for
colonoscopy and his order for GoLYTELY, both of which undeniably occurred on
December 17, 2011. See Plaintiff's Third Amended Original Petition. Although Plaintiff
has added an allegation for "failing to timely diagnose and treat the colon perforation," Dr.
Botla did not provide any medical care to the patient after 6:50 p.m. on December 17,
2011 when he gave a telephone order. See Exhibit 2 to Plaintiff's Opposition. Dr. Botla
did not see, treat, or even receive any information about the patient again until after the
perforation had already been diagnosed; there are no allegations of negligence related to
any of Dr. Botla's treatment of the patient after the diagnosis had been made. Therefore,
no actionable negligence occurred after December 17, 2011 and that is the date of
accrual. See Gormley v. Stover, 907 S.W.2d 448, 449-450 (Tex. 1995). Since Plaintiff's
lawsuit was filed more than 2 years after that date it is barred by the statute of limitations.
4
B. Statute of Limitation was not tolled because the authorization that was
provided within limitations was defective.
Since Plaintiff did not serve any health care provider with a statutorily sufficient
authorization within the limitations period, Plaintiff is unable to take advantage of the tolling
provision in Chapter 74. Contrary to Plaintiff's statement in his Opposition response, the 75
day tolling period is not absolute when a notice letter is provided during the limitations period.
Carreras v. Marroquin, 339 S.W.3d 68, 74 (Tex. 2011). If that notice letter is not
accompanied by a sufficient authorization form, the 75 day tolling period is inapplicable. Id.
Put simply, a defective notice, even if served "well within the 2 year statute of limitations" is
still defective and does not operate to toll the statute of limitations. Mitchell v. Methodist
Hospital, 376 S.W.3d 833, 838 (Tex. App.—Houston [1st Dist.] 2012, pet. denied);
Nicholson v. Shinn, No. 01-07-00973-CV, 2009 WL 3152111, at *4 (Tex. App.–Houston [1st
Dist.] Oct. 1, 2009, no pet.).
In Carreras, a case dealing with a notice letter that contained no authorization, the
Texas Supreme Court held that the provision of an authorization form was a mandatory
condition precedent. 339 S.W.3d at 72. Following Carreras, the First Court of Appeals
considered the question at issue here: whether a timely filed notice letter containing a
defective authorization operates to toll the statute of limitations. Mitchell, 376 S.W.3d at 838.
In Mitchell, as is Plaintiff's authorization in this case, the authorization was defective in two
ways: (1) it did not disclose the plaintiff's treating physicians for the previous five years; and
(2) it did no authorize the defendant to obtain and disclose protected health information. Id.
at 838. The plaintiffs argument was essentially the same as that advanced by Plaintiff here:
that the authorization provided with the notice letter "substantially complied" with the notice
requirement and was therefore sufficient to toll the limitations period. Id. at 834. However,
5
the First Court of Appeals rejected that argument finding that the deficiencies basically
rendered the pre-suit authorization of no use, "because such an omission discouraged
defendants from undertaking an investigation to evaluate [the] claim." Id. at 838. The court
explained that the defective authorization was meaningless because the purpose of the
requirement for disclosure of past physicians is to allow the potential defendant to evaluate
and possibly settle claims pre-suit. Id. Without information regarding the plaintiff's relevant
past medical care, it is impossible for a defendant to "evaluate the strength of the claimant's
claim with the legislative goal of encouraging settlement." Id.
As stated in Dr. Botla's Motion, he was never provided with any pre-suit authorization,
which itself undermines the purpose of the tolling period: he was never given a pre-suit
opportunity to investigate the claims or negotiate a potential settlement. Frankly, application
of the 75 day tolling period to Dr. Botla, even had an effective authorization been provided
to Dr. Carcamo, would have unjustifiably extended the limitations period against Dr. Botla:
if he was given no opportunity to investigate the claims or consider resolving the case prior
to litigation, there is no justification to giving Plaintiff 75 additional days to file a lawsuit.
Therefore, since he did even receive a pre-suit notice at all, the authorization requirement
should be strictly construed and only applied if the plaintiff was fully compliant with the
statute.
The only authorization that was provided to any defendant in this matter prior to the
expiration of the two-year statute of limitations was the authorization that accompanied
Plaintiffs pre-suit notice letter to co-defendant, Dr. Carcamo. Thus, although subsequent
authorizations were provided after the expiration of the statute, which at least to some extent
resolve the deficiencies in the authorization, it is only that first authorization, the "June, 2013
6
authorization" found at Exhibit "E" to Defendant's Motion for Summary Judgment, that can
be considered. An authorization provided after the expiration of the statute does plaintiff no
good from a tolling perspective because there is no limitations period left to toll.
That June, 2013 authorization was insufficient to toll the statute because it (1) did not
allow any physician to obtain the medical records stated therein and (2) failed to include
several of Plaintiff's treators from the preceding five years. As further evidence that the
June, 2013 authorization was insufficient in failing to allow any defendant to obtain the
Plaintiff's medical records, in addition to the fact that Dr. Carcamo moved to abate the
proceedings for that very reason, in response to that plea in abatement, on January 8, 2014,
Plaintiff sent Dr. Carcamo's counsel a new authorization form. This authorization revised
the first paragraph to allow Dr. Carcamo to obtain the records of the providers listed,
whereas, previously, the June, 2013 authorization only allowed him to produce records to
Plaintiffs counsel. See Exhibit "5" to Plaintiff's Opposition. Apparently acknowledging the
deficiency in the first authorization, the letter forwarding the revised authorization indicated
that this new authorization "allow[ed] the disclosure of medical records to Defendant."
Likewise, Plaintiff later sent another revised authorization listing additional providers, again
providing further evidence that the June, 2013 authorization was insufficient. See Exhibit
"6" to Plaintiff's Opposition. However, even that authorization was still defective in that it
failed to include several of Plaintiff's medical providers in the preceding five years, including
providers that treated Plaintiff for the same symptoms as those complained of during the
healthcare at issue. Therefore, Plaintiffs noncompliance with the mandatory provisions of
Chapter 74 did not satisfy the purpose of the statute: no physician was able to obtain
Plaintiffs relevant medical records in order to investigate Plaintiffs claims.
7
The authorization was defective and did not trigger the 75 day tolling period. Thus,
Plaintiffs lawsuit against Dr. Botla is barred by the statute of limitations since it was filed
more than 2 years after the date of accrual, September 17, 2011.
C. Two Year Statute of Limitations is Absolute despite any rule of procedure that
might toll, postpone, or interrupt the passing of the limitations period.
Even if the 75 day tolling period applied, Plaintiff's case would still be time-barred
since he filed 2 years and 76 days after Dr. Botla treated Plaintiff (the 2 years and 75 days
fell on Sunday, March 2, 2014). Not only does Section 74.251 provide that the two year
statute of limitations applies notwithstanding any other law, but Section 74.002 further
provides that in the event that any rule of procedure conflicts with the two year statute of
limitations, the absolute two year statute of limitations prevails. TEX. Civ. PRAC. & REM.
CODE §§ 74.251(a), 74.002(a). Thus, read together, it is clear that two years means two
years and no more.
Significantly, the cases Plaintiff cites for the proposition that the "notwithstanding any
other law" language does not apply to rules that are procedural in nature were decided
before the enactment of Section 74.002. That section specifically provides that, in the event
of a conflict, Chapter 74 prevails over any other law, "including a rule of procedure." TEX.
Civ. PRAC. & REM. CODE § 74.002(a). Section 74.251 imposes an absolute 2 year statute of
limitations. See Diaz v. Westphal, 941 S.W.2d 96, 99 (Tex. 1997). Thus, any rule of
procedure, i.e., Rule 4, that would alter, interrupt, toll or postpone the running of the statute
at exactly two years is in direct conflict with Section 74.251 and Section 74.251 therefore
controls. TEX. Civ. PRAC. & REM. CODE § 74.002(a). Unlike Section 74.351, which does not
address how to compute the 120 day time period for filing expert reports, Section 74.251
provides very clear instructions on how to compute the two year statute of limitations:
8
notwithstanding any other law, two years is exactly two years. See Molinet v. Kimbrell, 356
S.W.3d 407 (Tex. 2011)(Section 74.251 provides an absolute two-year statute of
limitations); Carpinteyro v. Gomez, 403 S.W.3d 508 (Tex. App—San Antonio 2013)(Rule 4
is not in conflict with Section 74.351).
Therefore, even if a sufficient authorization had been served, the limitations period
expired on March 2, 2014, 1 day before Plaintiff first filed suit against Dr. Botla. Plaintiff's
cause of action against Dr. Botla is therefore time-barred and should be dismissed with
prejudice.
IV.
CONCLUSION & PRAYER
WHEREFORE, PREMISES CONSIDERED, Dr. Botla respectfully prays that this
Court grant his Motion for Summary Judgment as to all claims and causes of action
against him brought by Plaintiff, enter summary judgment that Plaintiff take nothing by
this suit, and sever Plaintiff's cause(s) of action against Dr. Botla so that the judgment will
be final. Dr. Botla further prays for such other and further relief to which he may be justly
entitled.
Respectfully submitted,
/s/ Nicki K. Elqie
BRETT B. ROWE
State Bar No. 17331750
NICKI K. ELGIE
State Bar No. 24069670
EVANS, ROWE & HOLBROOK, P.C.
10101 Reunion Place, Suite 900
San Antonio, Texas 78216
Direct Line: (210) 384-3271
Facsimile: (210) 340-6664
Email: bbroweevans-rowe.com
Email: nelgie@evans-rowe.com
9
ATTORNEYS FOR DEFENDANT,
RAVI BOTLA, M.D.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing motion has been sent,
in accordance with the Texas Rules of Civil Procedure on this 11th day of September,
2014:
by facsimile and eService to:
George W. Mauze, II
Mauze Law Firm
2632 Broadway, Suite 401S
San Antonio, Texas 78215
Telecopier: (210) 354-3909
Email: gmauzemauzelawfirm.com
W. Richard Wagner
Wagner Cario, LLP
7718 Broadway
San Antonio, Texas 78209
Telecopier: (210) 979-9141
Email: rwagnerwagnercario.com
/s/ Nicki K. Elgie
BRETT B. ROWE / NICKI K. ELGIE
10
APPENDIX TAB “I”
Sep. 29, 2014 4:23PM No, 3551
\I(
MAUZE LAW FIRM
oc,u(3,„,„,..k II, ArrOrINO 2882 OROAOWAY, ulYe 401 SOUTH
MN ANTONIO, TYXAS 70215
• tELEPHONR 210,225,8262
NAcSIMrLE 210.354,2909
EMAIL: gmao4egrnauzoia1f,rrn.0o11
September 29, 2014 CO CaP 11/
ID
(J)
Honorable Peter Sakai, rri
"Ty < -4
Judge, 225Ih District Court r'l IN) 70 y --
Bexar County Courthouse eL) f ,)
-r) (7)
100 Dolorosa c -
(
•
San Antonio, Texas 78205 Via: Hand-Delivered
Re: Cause No. 2013-CI-19135 (—)
Del Toro v Carcamo et al;
Dear Judge Sakai:
During our hearing upon Defendant Ravi Botla's motion for summary Judgment on
September 16, 2014, you invited us to file any additional evidence and/or case law for
your consideration. This is a further response to three arguments of opposing counsel.
Chapter 74 Notice Substantial Compliance
As reflected in the case law submitted with Plaintiff's Opposition, the cases in which the
Chapter 74 notice was held to be insufficient as a matter of law (Carreras v, Marroquin,
339 8,W,3d 68, 73-74 (Tex. 2013); Mitchell v. Methodist Hospital, 376 S.W,3d 833, 839
(Tex. App. Hou ston [12t Dist.] 2012, pet. denied); Nicholson v. Shinn, 2009 WL
3152111 (Tex. App. — Houston [151 Dist.] October 1, 2009, no pet.); Cantu v, Mission
Regional Medical Center, 2014 WL 1879292 (Tex. App. - Corpus Christi May 8, 2014,
no pet.)], the plaintiff failed to provide any Chapter 74 authorization or did not provide a
Chapter 74 authorization which specified that the health care provider who received the
notice was authorized to obtain Plaintiffs' health care records. In the cases in which the
Court held, as a matter of law, that the Chapter 74 notice substantially complied with the
statute [Rabatin v. Kidd, 281 S.VV,3d 558, 562 (Tex. App. — El Paso 2008, no pet.);
Mock v. Presbyterian Hospital of Plano, 379 S.W.3d 391, 395 (Tex. App. — Dallas 2012,
pet. denied)), the plaintiff provided a Chapter 74 notice, but it had some errors. Plaintiff
provided a Chapter 74 authorization and it specified that Dr. Carcamo was authorized to
obtain Plaintiff's health care records. Although Defendant Botta argued that Dr,
Carcamo was unable to obtain Plaintiffs health care records with the authorization
provided, there is no evidence. presented that Dr. Carcamo (the physician who received
the notice) was unable to obtain Plaintiff's health care records. In fact, as reflected in
the attached Exhibit "A", Dr. Carcamo requested and received Plaintiff's health care
records from Nix Hospital with the very authorization (dated 6/7/13) Defendant 6otla
argues was insufficient as a matter of law because it did not enable Dr. Carcamo to
obtain records.
Sep 29, 2014 4:23PM No, 3551 P. 3
Honorable Peter Sakai
September 29, 2014
Page two
Defendant Botla's Last Day of Treatment of Plaintiff
Defendant Botla argued that the only day he participated in Plaintiffs treatment was
December 17, 2011. As reflected in Exhibit 2 — page 7 and Exhibit 4 — pages 1, 2, & 9
to Plaintiffs Opposition, Defendant Botla participated in Plaintiffs treatment on
December 18, 2011 in addition to several other days thereafter. Defendant Botla is
alleged to have been negligent in his failure to diagnose and appropriately treat the
colon obstruction and the subsequent perforation of the colon on December 17, 2014
and December 18, 2014. Thus, the statute of limitations expired Monday, March 3,
2014, not Sunday, March 2, 2014.
Electronic Filing On A Saturday or Sunday
Defendant Botla argued that a petition can be electronically filed on a Saturday or
Sunday, and thus, the statute of limitations is not extended to the following Monday. As
stated in Plaintiff's Opposition, such is contrary to Rule 4 T.R.C.P. and Section 16.072,
Tex. Civ. Prac. & Rem. Code. Furthermore, in response to the Court's inquiry, as to
when a pleading is considered "filed" when electronically submitted on a Saturday or
Sunday, attached hereto marked as Exhibit "B" is the Pro Doc informational page which
reflects that pleadings filed on a Saturday or Sunday are considered filed on the
following Monday.
Enclosed herewith is an Order Granting Leave of Court to supplement Plaintiff's
Opposition and another Order Denying Defendant kotla's motion for summary.
judgment.
Thank you for your consideration of this information.
Very truly yours,
Gedrge W. Ma
GWM/ag
Xc: Mr, Brett Rowe, Esquire
w/enclosures
Sep. 29. 2014 4:24PM No. 3551 r 4
Art9ie Guerrero
From: Lynn Laursen <11aursen@vvagnercario.com >
Sent: September 29, 2014 9:21 AM
To: Angie Guerrero
Subject: FW: Salvador Del Toro, Jr. N New Request
Attachments: Medical Auth (6-7-13).pdf
Importance: High
Please see We email below.
Lyni) Lotersim, B.S.N., R.N.
Nu 'se L.60,-.41 Consonant
From; Lynn Laursen
Sent: Tuesday, January 07, 2014 11:49 AM
To: Monica Galvan (mgalVonPrepubljc-services.pom)
Cc; Casey Sikora Bove (cbove(a, republic-services,corn)
Subject: Salvador Del Toro, Jr. - New Request
Importance: High
Dear Monica:
We would like to retain your services to obtain records in a new lawsuit assigned to Richard Wagner. The style of the
case is: Cause # 2013-CI-19135; Salvador Del Toro, Jr. v. Gerardo E. Carom°, M.O.; filed in the 131x`` District Court, Bexar
County, TX,
Plaintiff is represented by George W. Mauze, II. Plaintiff's DOB is 12/25/1973 & his SSIt is XXX.XX-9676. We have a very
limited authorization which I have attached, although I doubt it will he accepted by any healthcare provider, Please
request records from the following via DWQ in admissible form:
Nix Hospital medical
Nix Hospital — radiology
Dr. James Lackey medical & radiology
Riverwalk Clinic— medical & radiology
Val Verde Regional Medical Center--medical
Val Verde Regional Medical Center--radiology
Antonio Cadena, M.D. (Del Rio) — medical & radiology
Digestive Disease Centers of South TX, including Ravi Botla, M.D.medical & radiology
if any of the clinics listed above require a separate request for radiology, please let me know. I may hold off until we
review the medical records to avoid incurring unnecessary costs, Additionally, we will want a list of available radiology
studies to limit the films obtained to those pertinent to this case.
The insurance company is ProAssurance, the adjustor is Kayci Mechler and the claim No. is 187454.
Please let me know if you have any questions and confirm receipt of this new request.
Sep. 29, 2014 4:24PM No, 3551 P, 5
Sincerely,
Lynn L.aursen, B.S.N., R,N.
Nurse Legal Consultant
7718 Broadway, Suite 100
Son Antonio, TX 78209
rieuaenAwagnercarlo.com
(o): 216,919,7'555
(m): 210.278.9847
(0: 210.979.9147
CONFIOENTIALITY NOTICE
This is a transmission from Wagner Carlo, ThiS transmission is intended only for the personal end confidential use by addMssee(s) named
above. This message rosy contain information which IS COnlidentiat and/or prOprIetery, It'you are no! the addressee or intended recipient of this
message, you are hereby nailed that you have recewod this transmission in error and that any review, dissemination, disclosure, copying or diskibution
or use of the contents of this message is strictly prohibited, if you have received this transrhission in error, please delete the original message and notify
the Wagner Cane, L.L,P. Office Administrator immediately el 1-210-979-7555. Intorno( end e-mail communications are Wagner Cade, 1_,L.P, property
and Wagner Carlo, L.L.P. reserves the night to review any message that is a product of its rotwork.
Sep, 29, 2014 4:24PM No, 3551 P, 6
AUTHORIZATION FOI3MLc011 _
1 2_ HEALTH 1WM1
PURSUANT TO TEX, CIV, PRAC, & REM, CODE, CHAPTER 74 § 74,052
A. I, Salvador Del Toro, Jr, (name of patient or authorized representative), hereby
authorize Gerardo E, Chrome, M,D, (name of physician or other health care provider to
whom the notice of health care claim is directed) to obtain and disclose (within the
parameters set out below) to Mauze Law Firm the protected health information
described below for the following specific purposes:
1. To facilitate the investigation and evaluation of the health care claim described in
the accompanying Notice of Health Care Claim; or
2, Defense of any litigation arising out of the claim made the basis of the
accompanying Notice of Health Care Claim,
H. The health Information to be obtained, used, or disclosed extends to and includes the
verbal as well as the written and is specifically described as follows:
1. The health Information In the custody of the following physicians or health care
providers who have examined, evaluated, or Created Salvador Del Toro, Jr,
(patient) in connection with the Injuries alleged to have been sustained In
connection with the claim asserted in the accompanying NolIce of Health Care
Claim:
Nix Hospital, 414 Navarro, San Antonio, TX 78205
Oerardo E. C6rcamo, M.D., 414 Navarro, Suite 830, San Antonio, TX 78205
This authorization shall extend to any additional physicians or health care
providers that may in the future evaluate, examine, or treat Salvador Del Toro, Jr.
(patient) for Injuries alleged in connection with the claim made the basis of the
attached Notice of Health Care Claim; and
The health information In the custody of the following physicians or health care
providers who have examined, evaluated, or treated Salvador Dal Toro, Jr.
(patient) during a period commencing five years prior to the incident made the
basis of the accompanying Notice of Health Care Claim:
Riverwalk Clinic, 414 Navarro, Suite 809, San Antonio, TX 78205
Val Verde Regional Medical Center, 801 Bedell Avenue, Del Rio, TX 76840
Antonio Cadena, KID., 2201 North Bedell, Suite A, Del Rio, TX 78840
C. Excluded Health Information—the following constitutes a list of physicians or health care
providers possessing health care Information concerning Salvador Del Toro, Jr, (patient)
to which this authorization does not apply because I contend that such health care
information 18 not relevant to the damages being claimed or to the physical, mental, or
emotional condition of Salvador Del Toro, Jr, (patient) arising out of the claim made the
4:24PM No, 3551
Sep. 29. 2014
basis of the accompanying Notice of Health Care Claim: NONE.
D, The persons or class of persons to whom the health information of Salvador Del Tom, Jr.
(patient) will be disclosed or who will make use of said information are:
1. Any and all physicians or health care providers providing care or treatment to
Salvador Del Toro, Jr. (patient);
2. Any liability insurance entity providing liability Insurance coverage or defense to
any physician or health care provider to whom Notice of Health Care Claim has
been given with regard to the care and treatment of Salvador Del Toro, Jr.
(patient);
. 3. Any consulting or testifying experts employed by or on behalf of Gerardo E.
C6rcarno, MD. (name of physician or health care provider to whom Notice of
Health Care Claim has been given) with regard to the matter set out in the Notice
of Health Care Claim accompanying this authorization;
4. Any attorneys (Including secretarial, clerical, or paralegal staff) employed by or on
behalf of Gerardo E. Garoarno, NUJ, (name of physician or health care provider
to whom Notice of Health Care Claim has been given) with regard to the matter
set out in the Notice of Health Care Claim accompanying this authorization; and
5, Any trier of the law or facts relating to any suit filed seeking damages arising out of
the medical care or treatment of Salvador Del Toro, Jr. (patient).
E, ``this authorization shall expire upon resolution of the claim asserted or at the conclusion
of any litigation instituted In connection with the subject matter of the Notice of Health
Care Claim accompanying this authorization, whichever occurs sooner,
F. I understand that, without exception, I have the right to revoke this authorization In
writing. I further understand the consequence of any such revocation as set out in
Section 74.052, Civil Practice and Remedies Code.
0. I understand that the signing of this authorization is not a condition for continued
treatment, payment, enrollment, or eligibility for health plan benefits,
H. I understand that Information used or disclosed pursuant to this authorization may be
subject to redisclosure by the recipient and may no longer be protected by federal HIPAA
privacy regulations,
Signature o "atir t.
Date:
Sa ador lel Toro, Jr.
Patient's Name: Salvador Del Toro, Jr,
Patient's D.0.13.; 12.25.1973
Patient's SSI\1 451,77.9676
Sep, 29. 2014 4:24PM' No. 3551 F. 8
STYLF OF
CASE SALVADOR DEL TORO, JP,
VS.
GERARb0 E. CARCA MO, Mt)
CASE NO.: 2013-C1-1913S
PERTAIN TO: Salvador Del Toro, Jr.
FROM : NIX OE ALTI-1CARi SYSTEM
1VIedical
OEUVER TO Brett D. Rowe
Evans & Rowe, P.C.
10101 Reunion Piace, Sone 900
San Antonio, TX 78216 •
IN THE DISTRICT COURT OE
BEXAR COUNTY, TEXAS
131ST JUDI 0 AL DISTRICT
Order No, 67437.001
Sep, 29. 2014 4:24PM No, 3551
'THE STATE OF TEXAS
To any Sheriff or Constable of the State of Texas or other person. authorized to serve subpoenas under RULE 176 OF TEXAS
RULES OF CIVIL PROCEDURE, - GREETINGS -
You are hereby commanded to subpoena and summon the following witness(es):
Custodian of Records for:
NIX REALTITCARE SYSTEM
414 NAVARRO, SUITE 919
SAN ANTONIO, TX 78205 210-2714800
to be and appear before a Notary roblic of my designation for
Republic. Services San Antonio 210-298-6300
6391 DeZavtila Road, Suite 300, San Antonio, TX 78249
or its designated agent, on tho forthwith day of Instanter at the office of the custodian and there under oath to make answers of
certain 'written questions to be propounded to the witness and to bring and produce for inspection, and photocopying
ANT AND ALL AUDICA,L RECORDS INCUR:ONG MIT NOT IMMO T O TflE POLLOMING: patient
intake and/or history forms, a dmiSsion records, hospital records, mental health records, prescription records, physical
therapy records, office notes, reports and correspondence, any and all medical reports or records, diagnostic studies,
clinical abstracts, histories, discharge notes, chronological mummies, consultant reports, raw data, any patient records
not located in the medical record library (such as emergency room records) and any correspondence, including any
handwritten or typed notes to or from any nurse, doctor, physician, surgeon, or any other person, mad any other
information, documents and opiotoxis relevant to past, present and future physical condition, treatment, care or
hospitalization (11 RECORDS ADE 1V1A1NTAINED DXGXTAILY AND/OR ELECTRONICALLY, PLEASE
PRODUCE ON CD),
and any other such record in the possession, custody or control of the said witness, and every such.rec,ord to whioh the witness
may have access, pertaining so: Salvador Del Toro, Jr. ,Social Security Number XXX-XX-XXXX Date of lairthi 12/2511973
at any and all times whatsoever, then and there to give evidence at the instance of the
represented by Richard Wainer, Attorney of Record, in that Certain Cause No, 2,013-C1-19135, pending on the docket of the
District Court of the 131st judicial District ogtexar County,,, Texas.
This Subpoena is issued under and by 'virtue of Rule 200 .trid Notice of Deposition Upon Written Questions on file with the
above named court, styled
SALVADOR DEL TO110, Jilt
1%,,erry c4 6e SI5012A
1,0,00,
VS. ▪ SION Oi )-oxas
Commlagioti
• iNarcn 24, C."1,01(.4,3
2015
GERARDO E, CARCAMO, MD •
and there remain. from day to day and time to time until discharged according to law,
WITNESS MY RAND, on this 14th, day of January, 2014.
11 r\
UkUk}
NOTARY PUBL C
176,8 Enforcement of Subpoena. (a) Contempt. Failure by any person without adequate excuse to obey a subpoena sorvcd
upon that person may be deemed a contempt of the court from. Which the subpoena is issued or a district court inthe county in
which the subpoena is served, and may be punished by fine or confinement, ()Thoth.
f.
Caine to band this A) day of
°maw
20
RETURN
and executed this the A 0, day of 20 /4,
in the following manner: Ey delivering to the witness fightie,e
- ,f/-A)42; a true copy hereof.
Rebuild this Ao_ day of 20 JT
PROCESS S.P.M14.
Soo. 29. 2014 4:25PM No. 3551
Order No. 67437.001
Sep. 29, 2014 4:25PM No. 3551 F. 11
Jan. a /V (1:.74PMIcraotiou iSOpubli.c Serva‘ces SA No. LIN P. hozioli
1.10. 1.013-0-19115
SALVADOR DEL TORO, JR. IN Tilt DISTRICT COURT Off
VS, 1 REXAR COX/N'M 1)(AS
GERARDO E, CARCAN 0, MI) HIST JUDICIAL DISTRICT
WAIVER OF NOTICE
our °Nut, Richard Wagner, bac commissioned Republic Services Sao Anionic to obthin records on Salvador D el Toro; Jr,
6'0 0\0 following custodian for use in the above rehrehca
IP COPIES ARE 1313,111tIfa, PLR A.913 iNDICATti )3A.0'0,/ '8Y MARKING Y OR N. Original records will be held Inhouse for
30 days. Copiog rrioy not be Available after that time.
/1-/
1 NIX HEALTHCARE SYSTEM (Medical)
1 NIX HEALTHCARE SYSTEM (Radial oa9)
3 VALVERDE RIZOYON'AI, MRDICAL CENTER (medical)
4 VAIL VERD E REGIONAL MEDICAL CENTER (Ito dloloo)
5 RIVERWALit'ORGENT CARE (MWit& An Radiology)
6 DR. ANTONIO COMA. (Medical Ana Radiology)
7 tiTGWrirvE DISE ASX5 CENTER Or SWIM TEXAS (Medical and Ri4(flo)ogy)
iiernic 'hat r pudiorTrly firm will be responsible tbi payment of the copies of records ordered on this waiver, I acioovelcilgc, that
'ovuiec.g aro due and pNywitc, within 30 days of receipt and that acti ions fox collection of cervices are iencormabic and payable in
licsae Co onty, Toas.
DO AORER TO WAIVB TIM NOTICE. PERIM,
I DO NOT A (MBE TO WAIVE TILENOTICEPDRIO)),
Dated: Idnuary 14,2014
George W. Mane 111
Low Oftleo of George W, Monza, II
111 &dada& gull° 11Z7A
San Antonio, TX 10105
5124154262 tido
Attorney fox Plaintiff
SDAf/
floaso Rolurn To Republic gcrvices Sap Antonio
091 DeZitYulia Road, Sulte300
gall Matadi°, TX 182.i9
210498-6300 Vax210298-003
NOM: RBT1MN MIS PoRMTS REQtrino Nsirmitl ``MINTY (20) DAYS TO PROMS Y01.IR REQUEgT. .ANY
CANCELLATYON Or TIC ABOVEMUST BE IN WRITING. IF MR RECORDS HAVB ALRBADY DUN COM) AND
FBBg INCOMD, TIES ll (IAANG 'MUM PRORATED ACCORDINGLY,
67437
29. 2014 4:25PM No. 3551 P. 12
No 2013-CI-19135
SALVADOR DEL TORO, JR. IN THE PIS TRICE COURT OF
VS. 18EXAR COUNTY, TEXAS
GERARDO E. CARCAKO, MD 13IST JUDICIAL DISTRICT
NOTICE 01? INTENTION
TO TAKE DEPOSITION BY 'WRITTEN QUESTIONS
To Plaintiff by and through their attorneys) of record: George W. Maine XI (Law Offices of George W. Mauzei
You will please take notice that twenty (20) days from theservtce of a copy hereof with attached questions, a deposition by written
questions will be taken of Custodian of Records for:
Nrx HEALTHCARE SYSTEM (Medical)
414 NAVARRO, strut 919, SAN ANTONIO, TX 78205
rau HEALTHCARE SYSTEM (Radiology)
414 NAVARRO, SUITE 919, SAN ANTONIO, TX 782.05
VAL VERDE REGIONAL MEDICAL CENTER (Medical)
801 NORTH BEDELL AVENUE, DEL RIO, TX 78840
VAL VEI2DE REGIONAL MEDICAL CENTER (Radiology)
HI NORTH BEDELL AVENUE, DEL RIO, TX 78840
RIVERWALK URGENT CARE CLINIC (Medical and Radiology)
414 NAVA.P.RO, STE, 809, SAN ANTONIO, TX 78205
DR. ANTONIO CADENA (Medical and Radiology)
2201 NORTH BE AVENUE, STE. A, DEL RIO, TX 78840
DIGESTIVE DISEASES CENTER OP SOUTH TEXAS (Medical and Radiology)
621 CAMDEN STREET, SUITE 2.02, SAN ANTONIO, TX 78215
before a Notary Public for Republic Services San Antonio, 6391 DeZavala Road, Suite 300, San Antonio, TX 78249,
210-295-6300 Fax 210498.-6303, or its designated agent, which deposition with attached questions may be used to evidence
upon the trial of the above-styled and numbered cause pending in the above named coari, Notice is further given that request is
hereby made as authorized under Rule 200, Texas Rules of Civil Procedure, to the officer taking this deposition to issue a
subpoena duces tecum and cause it to be served on the witness to produce any and all records as described on the attached
questions and/or Exhibit(s) and any other such record in the possession, custody or control of the said witness, and every such
record to which the witness may have access, pertaining to Salvador Del Toro, Sr. and w turn all such records over to the
officer authorized to take this deposition so that photographic reproductions of the same may be made and attached to said
deposition.
ichard Wagner
Wagner Carlo, LLP
7718 Broadway
San Antonio, TX 78209
210-9797555 Fax 210-9/9-9141
Attorney for Defendant
SBA # 20661.130
hereby certify that a true and correct copy of the foregoing instrurnem has been forwarded to all Counsel of Record by hand
delivery, FAX, and/or certified mail, return receipt requested, on this ty.
Dated: January 14, 2014 /1/1 0 Le.. ALAAA
'
Order No. 67437
Sep. 29, 2014 4:25PM No. 3551 P. 1 3
No. 2013-CI-19135
SALVADOR DEL TORO, JR. IN THE DISTRICT Caw OF
VS, DE AR COUNTY, rocAs
GERARDO E. CARCAMO, MD 131ST JUDICIAL DISTRICT
DIRECT QMSTIONS TO )3E PROPOUNMD TO TIRE E WITNESS
Custodian of Records for NIX BRALTIICARE SITSUIVI
Records Pertaining To: Salvador Del Toro, jr,
Type of Records: ANY AND ALL IVEEDICAL RECORDS INCLUDING MIT NOT IliViTIRD TO ME POLLOWING1
patient intake and/or history forms, admission records, hospital records, mental health records,
prescription records, physical therapy records, office no tes, reports and correspondence, any and all
medical reports or records, diagnostic studies, clinical abstracts, histories, discharge notes, chronological
summaries, consultant reports, raw data, any patient records not located In the medical record library
(such as emergency room records) and any correspondence, Including any bandtvritten or typed notes to
or front any nurse, doctor, physician, surgeon, or any other person, and any other information,
documents and opinions relevant to past, present and tlintre physical condition, treatment, care or
hospitalization (23? RECORDS ARE MAINTAINED DIGITALLY AND/OR ELECTRONICA)LLY,
PLEASE PRODI1CR ON CD),
1. Please state your Ml name, address arid occupation.
Answer:
blr.e,e,A9K 14/S-04-moi-rop,. KAAAPoketzt,
2. Did you receive a subpoena to produce records pertaining to the above-named individual and/ox companies?
Answer
3. Axe yo able to identify these records as the originals ortme copies and correct copies of the originals?
Answer: e'L
4. Were these records made and kept in the regular course of your business?
Answer_ \te-S
5, in the regular course of your business, did the person who signed or otherwise prepared these records either have personal
knowledge of the entries on these records ox obtain the information to make such records from source's who have such
personal knowledge?
Answer:
6. Are these records under your care, supervision, direction, custody or control?
Answer;
67437.001
Sep. 29. 2014 4:25PM No, 3551 P, 14
7, Are these records made at a timo closely related to or simultaneous with the, occurrence recorded on these records?
Answer
Were these records kept as described in the previous question?
Answer: S
9. Please gather all such records together and deliver same to the officer taldng your depositionfor inspection and
photocopying .Rave you done as requested? If not, why not?
Arifcl/CX: \-ke-6
10, bo you understand that the subpoena you have received requites you to release arty and all records pertaining to Salvador
Del Toro, Jr, including notes fro mother' facilities? If you have not done so, either do so DOW or explain why you are
withholding such records.
AnSWer p.s \'\DAJ-t. fre-W a. l t &141,
ords)
Before me, the undersigned authority, on this day personally appeared v/ IA 1\. ((I 0\
known to me to be the person whose name is subscribed to the foregoing insttunient in capacity therein stated, who being first
duly sworn, stateduponhis/her oath thM the answers to the foregoing questions axe true and correct. I briber certify that the
records .attached hereto are exact duplicates of the origimIxe,cords,
SW0111\1 TO AND 8013Sc1t113n before me this Z 1 day of (L/( 20 1, L
vergwarzcgaggurster ftrailt:a .
7% DANIEL RUBIO 4R.
0...,
Notary Publio '
STATE OF TEXAS •
My Comm, 5* Novembet 4, 2017
My Commission Expires: 1) f 2
67437.001
Sep 29, 2014 4:25PM No. 3551
No. 2013-CI-19135
SALVADOR DEL TORO, JR. IN THE DISTRICT COURT OF
VS. REX AR COUNTY, TEXAS
GERARDO E. CARCA1v10, MD 131ST JUDICIAL DISTRICT
NOTICE or DELIVERY
RE: NIX HEALTHCARE SYSTEM (Medical)
1, Monica Ga1van , Notary Public in and for the Stale of Texas, hereby certify pursuant to the Rule 206, Texas Rules of Civil
Procedure,
1. That this Deposition by Written Questions of TVIa gda len a Garcia, the Custodian of Records for the above named is a true and
exact duplicate of the records pertaining to Salvador Del Toro, Jr,;
2. That the transcript is a true record of the testimony given by the witness;
3. That $ .1,247.17 is the charge for the preparation of the completed Deposition by Written Questions and any copies of
exhibits, charged to Attorney for Defendant, Richard Wagner, Tim # 20661 30;
4. That the deposition transcript was submitted on the 01/2112011 9:004.1v1 to the witness for examination, signatUre and return
to the officer by a specified date;
5. That changes, if any made by the witness, in the transcript and otherwise ore attached thereto or incorporated therein;
6. That the witness returned the transcript;
That the original deposition by Written Questions and a copy thereof, together with copies of all exhibits was delivered to the
attorney or party who Noticed the first questions for safekeeping and use al trial;
S. That pursuant to Information made a part of the records at the time said testimony was taken, the following includes all parties
of record:
George W. lvlauze 11 (Law Offices of George W. Manz; II)
Richard Wagner (Wagner Carlo, LLP)
and
9. A copy orthis Notice of Delivery was served on all parties shown herein.
GIVEN UNDER MY BAND AND SEAL OF OFFICE ON THIS DATE: FebnpiN 5, 2.014.
Republic Services San Antonio
6391 DeZavala Road, Snite 300
San Antonio, TX 78249 Notary Public in and for the State of Texas
2)0-298-6300 Fax 210-290-6303
MONICA GALVAN
67437.00) MY COMMISSION EXPIRES
Aagust 22, 2016
4:25PM No. 3551 P, 16
Sep. 29, 2014
p•,
MED REC 4:76,31-01
ACCOUNT 4:104521034
11,
ADMIT DATE/ TIME: 03/30/20``12 13:04
PATIENT INFORMATION CONFIDENTAUN
DELTORO, SALVADOR
108 KING CHARLES
DEL FII0, TX 788402628
HM PHONEi 830-313-0011
DOB:I2JO/1973 AGE 030Y SEX: MRTL STS:mARHIO SERVICE:
SOC SEC 4:XXX-XX-XXXX RELIGION; CATHOLIC
PRIMARY CARRIER: 4099 WEBTPAIHEALTHSIVIART
SECONDARY CARRIER: 0000
ADM DIAGNOSIS: 5770' ACUTE PANCREATIT
FINAL DIAGNOSIS:
SECONDARY DIAGNOSIS:
PROCEDURES (8):
CONSULTATIONS:
TYPE OF DISCHARGE:
HOME GEN HOW SNP NH GEROPYSCH AMA DIED
REHAB HOME HEALTH HOSPICE
DISCHARGE DATE:t3J TIME id) er
SIGNATURE OF
ATTENDING PHYSICIAN:
ADM CLERK: NHFIF1
REVISION DA TIME:
ADM COMMENT: REG19
Acct: 104521034 Age'. 038Y
DELTORO, SALVADOR Sex; M
MX I-1 E A LTV ui 11 1 1 11
ATN CARCAMO, GERARDO E
DOB, 12)2S/1073 W311: 76-31-01
CUNICAL FACESHEE A0002
A00021
Poe 1 of 1 Rev. 08/2011 11 1 11 I 111
1 ,
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Date
Salv al Toro, Jr,
Name of Patient: Mahnitclor 1)64 Tom Jr,
Patients 0,0,4.; 12 26,19T3
Pe tlevitio 88N; 451.77,ERITO
• >i
1
00021
sdeP: 29. 2014 4:26PM No: 3551 P. 18
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Sep 29. 2014 4:26PM No. 3551 P, 19
CAUSE NO: 2013-C1-1913S
SALVADOR DEL TORO, JR.. IN THE DISTRICT COURT
V. 13 JUDICIAL DISTRICT
GERARDO E. CARCAMO, M.D. AND
RAW DOTLA, M.D. BEXAR COUNTY, TEXAS
ORDER DENYING DEFENDANT RAVI BOTLA,IVID.'S MOTION FOR
SUMMARY )'UDGMENT
On this 16th day of September, 2014, came on to be considered Defendant Ravi
Botta, M.D.'s Motion for Summary Judgment. Plaintiff and Defendant Ravi Botta, M.D.
appeared by and through their respective attorneys of record. The Court, after reviewing
the motion and pleadings, being apprised of all facts, and hearing the arguments of
counsel, is of the opinion that said motion should be &Med. It is therefore,
ORDERED that Defendant Ravi Botla, M.D.'s Motion for Summary Judgment
shall be, and is hereby, DENIED.
SIGNED AND ENTERED On. this 16th day of September, 2014.
JUDGE PRESIDING'
APPROVED AS TO FORM ONLY:
MAUZE LAW FIRM
2632 Broadway, Suite 40IS
San Antonio, Texas 78215
Telephone: 210.225.6262
Telecopier: 210.354.3909
Email: gmauzeAmauZelawfirrn.cOm
RGE W. UZE, II
State Bar No. 13238800
ATTORNEY FOR PLAINTIFF
Sep. 29. 2014 4:26PM No. 3551 P. 20
CAUSE NO: 2013-CI-19135
SALVADOR DEL TORO, JR. IN THE DISTRICT COURT
V. 1315' JUDICIAL DISTRICT
GERARDO E. CARCAMO, M.D. AND
RAVI BOTLA, M.D. BEXAR COUNTY, TEXAS
ORDER GRANTING LEAVE OF COURT TO SUPPLEMENT PLAINTIFF'S
PPOSITION TO DEFENDANT RAVI BOTLA M.D.'S MOTION FOR
SUMMARY JUDGMENT
On the 16th day of September, 2014, came on to be considered Defendant Ravi
Botla, M.D.'s Motion for Summary Judgment. Plaintiff and Defendant Ravi Botla, M.D.
appeared by and through their respective attorneys of record. The Court, after heating
arguments of counsel took said matter under advisement and informed the parties that
they may file any additional evidence or provide additional case law pertaining to this
matter. It is therefore,
ORDERED that Leave of Court is granted authorizing the parties to file
additional evidence, Specifically, Leave of Court is granted for the filing of the evidence
filed by Plaintiff on September 29, 2014 pertaining to. the subpoena for health care
records of Plaintiff and the Pro Doc document regarding when an electronically filed
document is deemed filed.
SIGNED AND ENTERED onthis day of , 2014.
JUDGE PRESIDING
APPROVED AS TO FORM ONLY:
IvIAUZt LAW FIRM
2632 Broadway, Suite 401S
San Antonio, Texas 78215
Telephone: 210.225.6262
Sep, 29. 2014 4:26PM No, 3551 P. 21
Telecopier: 210.354.3909
Email: gmaaze a nauzelawfirm :coin
°R OE W z ,II
State Ihr No, 1'3238800
ATTORNEY FOR PLAINTIFF
2
APPENDIX TAB “J”
FILED
10/1/2014 10:01:15 AM
Donna Kay McKinney
Bexar County District Clerk
Accepted By: Barbara Segovia
EVANS, ROWE & HOLBROOK
ATTORNEYS AT LAW
Union Square, Suite 900 Brett 13. Rowe
10101 Reunion Place Board Certified:
San Antonio, TX 78216 Personal Injury Trial Law
Texas Board of Legal Specialization
(210) 340-6555
Fax (210) 340-6664 Direct Dial: (210) 384-3271
www.evansrowe.coin bbroweip,evans-rowe.com
October 1, 2014
Via Facsimile (210) 335-3950
Honorable Peter Sakai
Judge, 225th District Court
Bexar County Courthouse
100 Dolorosa
San Antonio, Texas 78205
RE: Cause No. 2013-CI-19135; Salvador Del Toro, Jr. v. Gerardo E. Carcamo, M.D.
and Ravi Botla, M.D.; In the 131st Judicial District, Bexar County, Texas
Dear Judge Sakai:
Defendant, Ravi Botla, M.D. has moved for summary judgment in this matter
arguing that Plaintiff's lawsuit was filed after the two year statute of limitations. Dr.
Botla's position is that Plaintiff did not get the 75-day tolling period under Chapter 74
because his Authorization was insufficient under the statute. Moreover, even if Plaintiff
had served any defendant with a sufficient Authorization prior to the expiration of the
statute, his case would have still been time barred because he filed his lawsuit 2 years
and 76 days after the cause of action accrued; since Chapter 74 provides an absolute
statute of limitation notwithstanding any other law, including rules of civil procedure, the
statute of limitations passed on Sunday, March 2, 2014. Since Plaintiff's lawsuit was
not filed until Monday, March 3, 2014, he filed outside the limitations period even if he
had served a sufficient authorization.
Noting the above, you presided over the hearing on our motion for summary
judgment on September 16, 2014. At the conclusion of the hearing, you invited the
parties to provide you with any additional arguments supportive of their respective
positions. Please accept the following as Dr. Botla's additional arguments and response
to Plaintiff's recent letter to the Court:
Honorable Peter Sakai
October 1, 2014
Page 2
I. Timeline of Events
For ease in the review of the relevant history of the case, Dr. Botla provides the
following chart, which summarizes the relevant events:
_,
Date R.L' d
12/15/2011 Plaintiff admitted to Nix Hospital PI Evidence-Exh. 2
12/17/2011 Dr. Botla examined patient and ordered colon PI Evidence-Exh, 2
0730 prep for a colonoscopy.
12117/2011 Dr. Botla's last communication on 12/17/2011 with PI Evidence-Exh. 2
1850 Nix Hospital nurses relative to treatment of
Plaintiff.
:
1
. 12/1712011. bate df.accrual:of cause of action against br, Botla (although Dr,
Botla saw the.patient after 12/17/2011, there are no allegations-of
negligence related to that care singe the perforation had already occurred
in the early morning hours of 12/1.8i201.1)
06/11/2013 Plaintiff served co-defendant Carcamo with Def Evidence-Exh. E
insufficient Authorization
11/20/2013 Plaintiff sued co-defendant Carcamo Def Evidence-Exh. A
12/16/2013 Co-defendant Carcamo filed Plea in Abatement Def Evidence-Exh. G
for insufficient pre-suit Authorization
•-, .-
12/17/2013
- .. . ,Expiration
,.. cif?Stpar
. .. sta tute- of limitations as to Dr. Botia
01/08/2014 Plaintiff provides co-defendant Carcamo a revised PI Evidence-Exh. 5
authorization "in accordance with Ch. 74.351 of
the Tex. Civ. Prac. & Rem. Code allowing the
disclosure of medical records to Defendant."
(emphasis added)
01/23/2014 Plaintiff provides co-defendant Carcamo with an PI Evidence-Exh. 6
additional revised authorization, this time adding
additional providers.
•--031.02/20114 70t'' day-after thipe)cperatIon of the statute,oflomitatmns.,
03/03/2014 Plaintiff filed suit against Dr. Botla after the Def Evidence-Exh. B
expiration of the statute of limitations.
II. Plaintiff's June 11, 2013 Authorization was insufficient to toll the
statute of limitations.
Contrary to Plaintiff's position, the question of whether an authorization is
sufficient under Chapter 74 to toll the statute of limitations does not turn on whether the
form provided by Plaintiff pre-suit was a HIPAA form versus a form that fails to track the
language of and include the information required by Section 74.052. An authorization,
Honorable Peter Sakai
October 1, 2014
Page 3
even if similar to that provided in Chapter 74 rather than a HIPAA form, is not compliant
and does not toll the statute if, as here, it does not authorize the defendant to obtain and
disclose protected health information and does not disclose the plaintiff's treating
physicians for the previous five years. See Mitchell v. Methodist Hospital, 376 S.W.3d
833, 838 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (HIPAA form provided in that
case).
The courts that have determined that medical authorizations were insufficient to
toll the statute have compared the authorizations to Chapter 74, not on whether the
authorization was a HIPAA form versus an attempted Chapter 74 form. For instance, in
Nicholson, one of the authorizations provided by the Plaintiff pre-suit was in the form
required by Chapter 74, except that no current or past healthcare providers were
identified. Nicholson v. Shinn, No. 01-07-00973-CV, 2009 WL 315211 (Tex. App,—
Houston [1st Dist.] 2009). Rather, the Plaintiff simply filled in his name at the top of the
form and signed and dated it (see Exhibit "A" to this letter, a copy of the Authorization
provided in that case, as obtained form Harris County's online docket), The court held
that since Plaintiff did not identify her treating physicians or authorize the defendant to
obtain and disclose the records, Plaintiff "failed to substantially comply with section
74.051 and 74.052." Id. at *5-6. In this case, Plaintiff's purported authorization only
allowed records to be disclosed to his own attorney and also failed to include several of
his prior treators for the very medical condition that brought about the medical care at
issue (diverticulitis).
Similarly, applying the precedent of Carreras, Mitchell, Nicholson, and Cantu (all
cited and discussed in Defendant's Motion for Summary Judgment and Reply), the 113th
District Court in Harris County has recently held that an authorization similar to Plaintiff's
in this case was insufficient to toll the statute of limitations. See Fred Myles v. St.
Luke's Episcopal Hospital, No. 2012-36049, 113th Judicial District, Harris County Texas
(pending in the 14th Court of Appeals, No. 14-13-01148-CV). In the Myles case,
although the plaintiff served an authorization in the form required by Chapter 74, the trial
court determined that the plaintiff's authorization was insufficient because it failed to
identify the plaintiff's healthcare providers for the five years preceding the incident. (See
Exhibit "B" to this letter, a copy of the Authorization provided in that case and a copy of
the trial court's final judgment) While the case is currently pending an appeal by Plaintiff,
the trial court's ruling is consistent with the arguments made by Dr. Botla in this case. In
this case, Plaintiff's purported authorization neither allowed any defendant to obtain and
disclose Plaintiff's medical records nor included all of his prior treators for the preceding
five years for the very medical condition that brought about the medical care at issue
(diverticulitis).
Finally, in relation to Plaintiff's position that Dr. Carcamo's counsel attempted to
use the bad authorization to obtain medical records from Nix Hospital, that argument is
irrelevant to the discussion on a number of grounds. First, it should be noted that the
request to the records company by the office of Dr. Carcamo's counsel even recognizes
Honorable Peter Sakai
October 1, 2014
Page 4
that Dr. Carcamo's office "doubt[ed] [the authorization would] be accepted by any
healthcare provider." Moreover, the records retrieval company retrieved the records via
a deposition subpoena, such that the sufficiency of the authorization was likely not
considered by the facility when it turned over the records in compliance with a
subpoena. Further, even had Nix produced records in reliance on the authorization,
that does not change the fact that Plaintiff failed to list several significant medical
providers that treated him in the five years preceding the incident, thereby limiting any
defendant's ability to investigate the claim. Ultimately, Plaintiff cannot escape from the
fact that the insufficient authorization thwarted the physicians' ability to investigate the
claims pre-suit, which is the purpose of the statute requiring the authorization. Dr. Botla
also objects to Plaintiff's purported summary judgment evidence attached to his recent
letter to the Court because it was untimely filed.
Ill. The only negligence asserted against Dr. Botla occurred on
December 17, 2011.
Plaintiff incorrectly asserts in his letter to the Court that Dr. Botla's positon is that
he did not participate in Plaintiff's treatment after December 17, 2011. Rather, Dr.
Botla's position is that this cause of action accrued on December 17, 2011, because
that is the last date of any alleged negligence by Dr. Botla. Plaintiffs allegations against
Dr. Botta relate to the order for the colon prep, which was ordered and administered on
December 17, 2011. No colon prep was administered after December 17, 2011.
Plaintiff has also asserted negligence related to Dr. Botla's failure to diagnose the
patient's colon perforation. However, his last involvement with the patient's care before
the diagnosis of colon perforation was made was at 6:50 p.m. on December 171".
Therefore, none of Plaintiff's allegations against Dr. Botta occurred after December 17th,
even though Dr. Botla did treat the patient after that. As previously noted in Dr. Botla's
prior briefing, if the date the alleged tort occurred is ascertainable, limitations must begin
to run on that date. Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001).
IV. Regardless of the effective date of filing, TRCP 4 and CPRC 16.072
cannot extend the statute of limitations because the absolute two-
year statute of limitations under Chapter 74 controls.
Dr. Botla agrees with Plaintiff's counsel that, under the Texas Rules of Civil
Procedure, a document filed on a weekend is deemed filed on the next day that is not a
weekend or legal holiday. TEX. R. Civ. PROC. 21(f)(5)(A) (counsel for Dr. Botla was
uncertain what the Rules said about this issue at the time of the hearing, but has since
had an opportunity to review the applicable Rule). However, that does not change the
fact that Section 74.251 provides that the two year statute of limitation applies
notwithstanding any other law and that Section 74.002 further provides that in the event
that any rule of procedure, i.e., Rule 4, conflicts with the two year statute of limitations,
Chapter 74 prevails. TEX. Civ. PRAC. & REM. CODE §§ 74.251(a), 74.002(a). As argued
in Dr. Botla's Motion and Reply, any rule of procedure, i.e., Rule 4, that would alter,
Honorable Peter Sakai
October 1, 2014
Page 5
interrupt, toll or postpone the running of the statute at exactly two years is in direct
conflict with Section 74.251 and Section 74.251 therefore controls. Notwithstanding any
other law, Plaintiff gets two years to file suit.
For the Court's convenience, Dr. Botla is providing an Order Granting Motion for
Summary Judgment and for Severance of Defendant Ravi Botla, M.D., which can be
found at Exhibit "C" to this letter.
Again, should this Court deny Defendant's Motion for Summary Judgment, Dr.
Botla respectfully requests that the Court permit an immediate appeal from its interlocutory
order pursuant to CPRC 51.014 because this matter involves a controlling question of law
as to which there is a substantial ground for a difference of opinion and because an
immediate appeal from the order may materially advance the ultimate termination of the
litigation.
Thank you for your thoughtful consideration of Defendant's Motion, Reply, and this
additional letter briefing. Should you require any additional information or material from Dr.
Botla, please let me know.
Sincerely,
Brett B. Rowe
Attachments
cc: w/attachments
George W. Mauze, II Via Facsimile (210) 354-3909
Mauze Law Firm
w/attachments
W. Richard Wagner Via Facsimile (210) 979-9141
Wagner Cario, LLP
PDT
AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION
A. I, ii-rzt NicHoLsoxi , hereby authorize
(Name of patient or authorized representative)
(Name of the physician, practice group, or other healthcare provider to whom the notice of health carc ,_ is directed)
to obtain and disclose (within the parameters set out below) the protected heal&hformation
described in this agieement for the following specific purposes:
1.To facilitate the investigation and evaluation of the health care cl escribed
in the accompanying Notice of Health Care Claim and/or;
2. To investigate any litigation arising out of the claim made t asis of the accompanying
Notice of Health Care Claim.
B. The health information to be obtained, used and/or discNitextends
( to and includes the verbal
as well as the written and is specifically described as folio iV
1. The health information in the custody of the ing physician(s) and/or health care provider(s)
who have examined, evaluated and/or treated
(Patient) in connecti t the injuries alleged to have been sustained in
connection with the claim asserted in thcpanying Notice of 14;:alth Care Claim. (Here list the
name and current address of all treating physiciator health care providers.)
r'
This authorization shall exteri any additional physicians and/or healthcare providers which may
in the future evaluate, exa and/or treat
a ) for injuries alleged in connection with the cla:m made the basis of the
attached Notice of H are Claim;
2. The health infgriri on in the custody of the following physicians and/or healthcare providers
who have exaq.,44,'N4 evaluated and/or treated (Patient)
during a perior:N'mmencing five years prior to the incident made the basis of the accompanying
Notice of Care Claim. (Here list the name and current address of such physicians and/or health care
providers, of a cable.)
C. Excluded Health Information
The following constitutes a list of physicians and/or health care providers possessing health care
information concerning (Patient) to which this
authorization does not apply because I contend that such health care informttion is not relevant to
the damages being claimed or to the physical, mental, or emotional condition of
(Patient) arising out of the claim made the basis of the
accompanying Notice of Health Care Claim, (Here state none or list the name of each physician or health
care provider to whom this authorization does not extend and the inclusive dates of examination, evaluation, or treatment
to be withheld from disclosure.)
D. The persons or class off persons to whom the health Information of
(Patient) will be disclosed or who will make use fd information are;
1.Any and all physicians or health care providers providing care or tt;e nt to
(Patient);
2. Any liability insurance entity providing liability insurance r1 ',Iage and/or defense to any
physician or health care provider to whom Notice of Health 'Claim has been given with
regard to the care and treatment of (Patient);
3. Any consulting or testifying experts employed by or h Behalf of
ame of physician or health cure provider to whom
Notice of Health Care Claim has been
given) with regard ;Al matter set out in the Notice of Health Care
Claim accompanying this authorization;
t.
C7.!•,
4. Any attorneys (including secretarial, cler or paralegal staff) employed by or on behalf of
(Name of physician or health care provider to whom
witOegard to the matter set out in the Notice of Health Care
Notice of Health Care Claim has been given)
Claim accompanying this authorizatioVn
5, Any trier of the law or facts r g to any suit filed seeking damages ar sing out of the medical
care or treatment of (Patient).
E. This authorization shall expiry resolution of the claim asserted, or at the conclusion of any
litigation instituted in connecttot
c1) h that claim.
F. I understand that, witholgexception, I have the right to revoke this authorization in writing. I
further understand the of quence of any such revocation as set out in Sectiot, 74.052, Civil Practice
and Remedies Code.
G. I understand th e signing of this authorization is not a condition for continued treatment,
payment, enroilm 1 or eligibility for health plan benefits.
H. I understand that information used or disclosed pursuant to this authorization may be subject to
re-disclosurepy the recip nt and may no longer be protected by Federal HIPAA privacy
regulations/
a-
j
6/ -•-• /03
Signature of Patten e s ntativc Date
/trz.( VICHOLscyti
Please Print Name of Patient/ Representative Description of Representative's Authority
AOTHOE,IZA;TION FOR •PRCYFECT D H AL TEI T OEMATIQI
I, MD MYLES,. hereby authorize ST, LIME'S EPISCOPAL Rosrriat, to obtain and disclose (within the
parameters set out below) the protected health information described below for the following specific purposes:
To facilitate the investigation and evaluation of the health care cltdm described in the aetompanying Notice
Of Health Care Claim; Cr
Defense of any litigation arising, out of the claim made the basis of the moot%) g Notice of Health
Care Claim.
The health information to be obtained, used, or disclosed extends to and includes the- -irti.ital as well as the written
and is specifically described as follows:
The health information in the custody of the following physician health care providers who have
examined, evaluated, or healed ,FRED MYLES in connection with the ' alleged to have been sustained in
connection with the claim asserted in the accompanying Notice °Meal laim;
TIR.R, 1333 Moursoud Street, Houston, Texas 77030; and 0 025)
SELECT SPECIALTY HOSITTAL-HOUSTON WEST, Id Katy Freeway, Houston, Tx. 77055
This authorization shall extend to any additional physicians 4
h care providers that may in the future evaluate,
examine, or treat FRED MYLES for injuries alleged in co tion with the claim made the basis of the attached
Notice of Health Care Claim. e3
The health information in the custody of the folio hysicians or health care providers possessing health care
information concerning FRED MYLES to w authorization does not apply because I contend that such
health care information is not relevant to the ages being clainted or to the physical, mental, or emotional
condition of MD MYLES arising out of th aim made the basis of the accompanying Notice of Health Care
Claim. (Hem stele "none" or list the nanoe4 t-ach physician or health care provider to whom this authorization does
not extend and the inclusive dates of ex On, evaluation, or treatment to be withheld from disclosure.):
The persons or class of p rs oni the health infOrMati011 of FRED MYLES will be disclosed or who will
make use of said inform
Any and alt p dans or health care providers providing care or treatment to FRED MYLES.
Any 1';44119 nonce entity providing liability insurance coverage or defense to any physician or health
Care provider t Notice of Health Care Claim has been given with regard to the care and treatment of FRED
MYLES;
consulting or testifying experts employed by or on behalf of ST. ID 'S EPISCOPAL HOSPITAL
with r to the matter set oat in the Notice of Health Care Maim accompanying this authorization;
Any attorneys (including secretarial, clerical, or paralegal staff) employed by or an behalf of ST, LUKE'S
EPISCOPAL HOSPITAL with regard to the matter set out in the Notice of Health Care Claim accompanying this
authorization; and
Pay trier of the law or tots Tel to any 6tt filed seAth4 thanagee arts out fete medical owe ar
teatimes of FRED 144YILEX.
This suihsristsikin,sbaAl exPhO Twohalou otthe claim mated or at *a cancludon of arty Titiggiatz inettinted
in multotka with the subject =der ef the Z n o &el* Oar. CWia noixambig t orization,
gohesver oecurs so era
Yd 'it, * excePtore, I We th0 Vitt() rt VOW Ads atacoization I firtheT trate
otAstvautoe ()raw Atteh tavooatiou as set °din SWIM 14.052, CM1 ?norm es axle.
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ibrinetft plan benefits.
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resipieut sod maitIOSIRArhelzeesstedlrY-04ests1101AA PlivstaY
CAUSE NO. 2012-36049.
FRED MYLES IN THE DISTRICT COURT OF
VS. HARRIS COUNTY, TEXAS
ST. LUKE'S EPISCOPAL HOSPITAL 11 3TH JUDICIAL RICT
FINAL JUDGMENT
o
After considering the Motion for Summary Judg Based on Inadequate
-1 N
24
1
L z,€„, 2 Medical Authorization of Defendant, ST. LUKE'S SCOPAL HOSPITAL, the
co
o o,1 evidence, the response, and arguments of counsel Court is of the opinion that the
1:3 •E 'E $)-
42-co itAeamotion should be, in all respects,
GRANTED,
It is, therefore, ORDERED, ADJ. and DECREED that the claims of
Plaintiff, FRED MYLES, against ST. LIE'SEPISCOPAL HOSPITAL are dismissed
with prejudice and Plaintiff takes 4hing from Defendant in the above-referenced
lawsuit:
Costs of court shall b id by the Plaintiff. This is a final judgment disposing of
all claims. All relief not x9ssly granted herein is denied.
00
0
SIGNED. day of , 2013.
0
J DGE IDING
Page 8 of 11
RECORDER'S MEMORANDUM
This instrument is of poor quality
at the time of imaging
CAUSE NO. 2013-CI-19135
SALVADOR DEL TORO, JR. IN THE DISTRICT COURT
vs. 131ST JUDICIAL DISTRICT
GERARDO E. CARCAMO, M.D. AND
RAVI BOTLA, M.D. BEXAR COUNTY, TEXAS
ORDER GRANTING MOTION FOR SUMMARY .JUDGMENT AND FOR SEVERANCE
OF DEFENDANT RAVI BOTLA,
On the 16th day of September, 2014, came on to be heard the Motion for Summary
Judgment of Defendant Ravi Botla, M.D. The Court, having considered the Motion, Plaintiff's
Opposition, Defendant's Reply, pleadings timely filed, the summary judgment evidence, and
argument of counsel, hereby rules that said motion is meritorious and should be in all things
GRANTED because Plaintiff filed his lawsuit against Dr. Botla after the expiration of the
statute of limitations.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiff take
nothing against Defendant Ravi Botla, M.D.; that Plaintiff's claims and causes of action
against Defendant Ravi Botla, M.D. are hereby dismissed with prejudice; that Plaintiff's claims
and causes of action against Defendant. Ravi Botla, M.D. are hereby severed from all other
causes of action alleged in Plaintiff's Third Amended Petition; and that the severed causes of
action shall be and are hereby assigned the separate cause number of
. All remaining causes of action against other defendants
shall proceed under the original cause number. All relief requested that is not expressly
granted is hereby denied.
Signed this date:
HONORABLE JUDGE PRESIDING
APPENDIX TAB “K”
OCT-10-2014 00:23 From:225th Cowt 2108353950 To:93406664
Peter Sakai
225" District Court
Boxer County Courthouse
San Antonio, Texas 78205
Telephone: 210-335-2233 Facsimile: 210-335-3950
FAX COVER SHEET
TO:
FROM: '01 " : \
11 Av.
DATE:
NO. OF PAGES (including this cover sheet):
.41.11.1111.9.311.1e1000MEre.a.e•
IVIESSAGE
OCT-10.-2014 08:23 From:225th Court 2103353950 To:93406664 Ptyci:2/3
PETER SAKAI 225t1j Yubittat a if‘tritt Court Bexar County Courthouse
Judge San Antonio, Texas 78205
(210) 335-2233
October 10, 2014
Mr. George W. Mauze II Via Fax No.: 210-354-3909
Mauze Law Firm
2632 Broadway, Suite 401 South
San Antonio, Texas 78215
Mr, Brett B. Rowe Via Fax No.: 210-340-6664
Ms. Nickie K. Elgie
Evans, Rowe & Holbrook, P.C.
10101 Reunion Place, Suite 900
San Antonio, Texas 78216
Mr. W. Richard Wagner Via Fax No,: 210-979-9141
Wagner Carlo LLP
7718 Broadway, Suite 100
San Antonio, Texas 78209
RE: CAUSE NO. 2013-CI-19135; Styled: SALVADOR DEL TORO JR, v. GERARDO E. CARCAMO, M.D. and
RAVI BOTTA, M.D.; Filed: 131st DISTRICT COURT, BEXAR COUNTY, TEXAS.
Dear Counsels:
After careful review and deliberation of the briefs, memorandums, motions and argument of counsels,
the Court has made the following findings and will issue the following orders: Motion for Summary
Judgment and for Severance of Defendant Ravi Botla, M.D. is DENIED and Defendant Ravi Botla, M.D.'s
request for this Court to permit an immediate appeal from its Interlocutory Order pursuant to CPRC
51.014 is GRANTED.
I will request that the prevailing party of their respective Motions draft an order reflecting the Order of
the Court and submit it to opposing counsel for approval as to form only. I will sign the Order when
submitted to the Court forsignature. Further, I will instruct the clerk of the court to file all original
papers, motions, briefs and memorandums with the District Clerk's Office. All exhibits will be returned
to the official court reporter for further disposition. The Court will withdraw all exhibits upon the
agreement of all the parties. Additional materials provided to the court will be given to the court
reporter for safekeeping and retrieval by the respective parties. SO ORDERED.
0CT-10-2014 09:23 From:225th Court 2103353950 To:93406664 Pago:3/3
Page Two
Letter to Counsels Mauze, Rowe & Wagner
October 10, 2014
I appreciate the professionalism and courtesies extended by all counsels.
Respectf
Peter Sakai