Kenneth Marsh and Sabrina Darling-Marsh v. Pradanya Haldankar, M.D.

Affirmed and Memorandum Opinion filed October 4, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00049-CV
KENNETH MARSH AND SABRINA DARLING-MARSH, Appellant
V.
PRADANYA HALDANKAR, M.D., Appellee
On Appeal from the 281st District Court
Harris County, Texas
Trial Court Cause No. 2018-91469A
MEMORANDUM OPINION
In two issues, appellants-plaintiffs, Kenneth Marsh and Sabrina Darling
Marsh, appeal the trial court’s final summary judgment of their health care liability
claims against appellee-defendant, Pradanya Haldankar, M.D., one of three health
care providers1 the Marshes sued in connection with treatment and care of Mr.
Marsh related to his December 29, 2016 cataract surgery. We affirm.
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The Marshes also filed health care liability claims against the hospital, Cypress
Fairbanks Medical Center and surgeon, Joseph A Zarzour, M.D.
I. FACTUAL AND PROCEDURAL BACKGROUND
This appeal arises from the health care liability claim filed by the Marshes
against Dr. Haldankar, the anesthesiologist who put Mr. Marsh under general
anesthesia for cataract surgery. The Marshes allege that Mr. Marsh was not a
candidate for general anesthesia and Dr. Haldankar’s administration of the
anesthesia led to post-operative complications. The Marshes further allege that Dr.
Haldankar extubated Mr. Marsh too soon, causing severe complications, including
a life-threatening loss of oxygen.
The Marshes filed their lawsuit on December 28, 2018, and served Dr.
Haldankar on June 17, 2019.
Dr. Haldankar filed his answer on June 28, 2019. In his answer, Dr.
Haldankar alleged that the Marshes had not provided a proper medical
authorization in their pre-suit notice as required by Chapter 74, and therefore the
case was abated.2 However, Dr. Haldankar’s abatement notice was not verified,
and the trial court did not enter an order abating the case.
Thereafter, the parties proceeded as if the case had not been abated. The
Marshes filed discovery requests and a Motion for a New Trial Setting. Similarly,
in the year that followed, Dr. Haldankar filed three motions asking the court to
dismiss the Marshes’ claims against her.
First, on Sept 9, 2019, Dr. Haldankar filed a motion for summary judgment
based on the statute of limitations, challenging the Marshes’ diligence in serving
their claims. On Dec. 9, 2019, the trial court denied the motion.
Then, on December 19, 2019, Dr. Haldankar filed a motion to dismiss based
2
Dr. Haldankar’s answer stated: “Defendant hereby invokes Texas Civil Practice & Remedies
Code §74.052 providing that all further proceedings in this matter are hereby ABATED for a
period of 60 days following receipt of the required authorization by Defendant”.
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on the contention that the Marshes’ expert reports were not compliant under
section 74.351. The Marshes amended their expert reports. The case was not
dismissed.
Finally, on August 13, 2020, Dr. Haldankar filed a hybrid motion for
summary judgment. In her traditional motion for summary judgment, Haldankar
argued that the expert designation deadline had passed and that the Marshes had
not amended their designation to include a qualified expert to testify in support of
the essential elements of their health care liability claims. In her no-evidence
summary-judgment motion, Haldankar argued that the Marshes lacked evidence to
support their claim that she had breached any applicable standard of care, or that
such breach proximately caused Mr. Marsh’s injuries.
In their response to the traditional motion for summary judgment, the
Marshes argued that the evidence Dr. Haldankar supplied in support of her own
motion was conclusory. In their response to the no-evidence motion for summary
judgment, the Marshes argued that they had not had adequate time for discovery.
At the same time, the Marshes filed a motion for a new trial setting and new docket
control order. The trial court granted plaintiffs’ motion, noting that it was
essentially a motion for continuance, and reset the trial and deadlines for expert
designations and completion of discovery.
Nevertheless, on September 4, 2020, the trial court granted Haldankar’s
hybrid summary judgment motion.3
The Marshes attempted to revive claims against Haldankar by filing a
motion for new trial, but were unsuccessful. The court’s disposition of their claims
against Haldankar became final upon the court’s order severing the claims against
3
The trial court did not indicate whether it was granting the traditional or no-evidence
motion, or both.
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her from the Marshes’ claims against the other defendants.
II. ISSUES AND ANALYSIS
In two issues, Appellants Kenneth Marsh and Sabrina Darling Marsh
challenge the trial court’s order granting appellee Dr. Haldankar’s summary-
judgment motion dismissing their health care liability claims against her.
1. Were the Marshes’ claims against Haldankar abated at the time of the
summary judgment proceeding?
In their first issue, the Marshes argue that the summary judgment order is
void because the case was abated by operation of Haldankar’s allegations in her
answer that the case was abated under Chapter 74. The Marshes contend on appeal
that their claims against Haldankar were abated at the time Haldankar filed her
summary judgment, and by extension, when the court granted Haldankar’s
summary judgment motion. The Marshes first raised this issue in their Motion for
New Trial. They did not present this argument in response to any of the three
dispositive motions that filed in the previous year. On appeal, Haldankar contends
that the Marshes waived this argument and notes among other facts, that the
Marshes Motion for New Trial was not verified.
The Marshes contend that the case was automatically abated when
Haldankar invoked Section 74.052 of the Texas Civil Practice and Remedies
Codes in her unverified answer. The provision states:
(a) Notice of a health care claim under Section 74.051 must be accompanied
by a medical authorization in the form specified by this section. Failure to
provide this authorization along with the notice of health care claim shall
abate all further proceedings against the physician or health care provider
receiving the notice until 60 days following receipt by the physician or
health care provider of the required authorization.
Tex. Civ. Prac. & Rem. Code Ann. § 74.052.
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We need not venture deep into the construction of the mechanics of the
statute to address appellant’s issue. The provision does not operate in a vacuum, in
contradiction to basic principles of civil procedure, including the fundamental
practices in abatement procedure. See In re Gen. Agents Ins. Co. of Am., Inc., 254
S.W.3d 670, 676 (Tex. App.—Houston [14th Dist.] 2008, no pet.)(explaining that
motion to abate or plea in abatement based on facts outside of the record must be
verified); See Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex.1988)
(explaining a motion to abate is waived if it is not set for a hearing before the trial
or made in a timely manner), overruled on other grounds, In re J.B. Hunt Transp.,
492 S.W.3d 287 (Tex.2016). The Marshes have provided no authority supporting
their argument: automatic abatement without proof, verification, a hearing, or a
ruling. We have we found no authority either applying section 74.052 in the
manner suggested by appellants, or any case law in regard to a similar provision
that creates an abatement in the manner appellants suggest.
Other statutory provisions allowing for an abatement based on defects in
pre-suit notice require at minimum, verification or a hearing and order, to
effectuate the requested abatement. See e.g., Tex. Educ. Code Ann. § 22.0513(“The court shall abate the suit if the court, after a hearing, finds that the person is
entitled to an abatement because notice was not provided as required by this
section.”). The DTPA provides for automatic abatement, but still requires the
filing of a verified plea in abatement. Tex. Bus. & Com. Code Ann. § 17.505(d).
Since the Marshes’ alleged failure to provide a medical authorization would have
been outside the record, at a minimum the plea in abatement would have had to
have been verified. See In re Gen. Agents Ins. Co. of Am., Inc., 254 S.W.3d at 676.
The Marshes primarily rely on two cases, Hutchinson v. Wood, 657 S.W.2d
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782 (1983) and Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934 (Tex.
1983). Those cases, however, are inapplicable. Schepps and Hutchinson were
decided on a previous statutory provision, Art. 4590i, section 4.01. That section
required that a plaintiff give written notice of a health care liability claim by
certified mail at least sixty days before the filing of a lawsuit. The statute,
however, was silent as to the penalty should a plaintiff fail to send the notice. In
Schepps, the plaintiff failed to give the statutory notice and the defendant moved
for summary judgment because of the lack of notice. The court of appeals ruled
that the case should be dismissed. The Supreme Court disagreed and concluded
that when a plaintiff has failed to give notice sixty days prior to the filing of suit,
upon motion of the defendant, the cause should be abated. 652 S.W.2d at 934
(emphasis added). The abatement was not automatic; it required “upon motion of
the defendant.”
Hutchinson reached a similar result. In Hutchinson while it was disputed as
to whether the plaintiff gave pre-suit notice, the plaintiff clearly failed to state that
he had complied with the notice provision, which was a requirement under art.
4590i, section 4.01. The defendant filed a plea in abatement and motion to dismiss
because of the plaintiff’s failure to plead compliance with the notice provision.
The trial court dismissed plaintiff’s case and the court of appeals affirmed.
Relying on Schepps, the Supreme Court remanded the case with instruction that the
trial court abate the case until plaintiff pled in conformity with art. 4590i, section
4.01. Again, the abatement was not automatic; on remand the trial court was
instructed to order an abatement.
Schepps and Hutchinson do not support the Marshes’ argument. In those
cases, the Supreme Court created a remedy of abatement to prevent a manifest
injustice of dismissal should plaintiff fail to give notice or verify that notice had
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been given. In both Schepps and Hutchinson, the defendant either filed a plea in
abatement, a motion for summary judgment, or a motion to dismiss. In other
words, the failure of plaintiff to give the required notice was squarely placed
before the trial court. In both cases, the Supreme Court remanded with instructions
to the trial court to order abatement.
Both the Marshes and Haldankar ignored the abatement. Plaintiffs cannot
simply ignore the “abatement,” file discovery and seek affirmative relief, contest
the merits of motions to dismiss and motions for summary judgment, and then, if
the trial court rules against the plaintiff, claim that all actions by the trial court
were nullities. We conclude that the abatement procedure in section 75.052
requires that the defendant file a verified plea in abatement or a motion to abate
and the trial court must order abatement before the case is abated. On this record,
we cannot conclude that the trial court improperly granted summary judgment.
We therefore overrule appellant’s first issue.
2. Did the trial court abuse its discretion in its implicit determination that
adequate time for discovery had passed for consideration of the no-evidence
summary-judgment motion?
In their second issue, the Marshes attack the merits of both the traditional
and the no-evidence summary judgment motions. With respect to the no-evidence
motion, the Marshes argue that there was not adequate time for discovery.
Because the Marshes did not attempt to supply the court with any evidence in
response to Haldankar’s no-evidence summary judgment motion, but only
complain that the trial court erred by granting Haldankar’s motion over their
objection that adequate time for discovery had not passed, we first address the
merits of the court’s grant of the no-evidence motion.
The trial court implicitly found that an adequate time for discovery passed
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before its consideration of the no-evidence motion for summary judgment. We
review the trial court's determination as to whether there has been an adequate time
for discovery on a case-by-case basis, under an abuse-of-discretion
standard. McInnis v. Mallia, 261 S.W.3d 197, 201 (Tex. App.—Houston [14th
Dist.] 2008, no pet.); Chamie v. Mem’l Hermann Health Sys., 561 S.W.3d 253,
256–57 (Tex. App.—Houston [14th Dist.] 2018, no pet.).
There are two components to the consideration of the adequacy-of-time-for-
discovery issue in this case: the legally recognized factors that courts consider, and
the existence of verified proof supplied by the party seeking relief. First, with
respect to the factors relevant to determining the adequacy of time for discovery,
courts consider the following: (1) the nature of the case, (2) the nature of the
evidence necessary to controvert the no-evidence motion, (3) the length of time the
case was active, (4) the amount of time the no-evidence motion was on file, (5)
whether the movant had requested stricter deadlines for discovery, (6) the amount
of discovery that already had taken place, and (7) whether the discovery deadlines
in place were specific or vague. See McInnis v. Mallia, 261 S.W.3d 197, 201 (Tex.
App.—Houston [14th Dist.] 2008, no pet.); Lindsey Constr., Inc. v. AutoNation
Fin. Services, LLC, 541 S.W.3d 355, 361 (Tex. App.—Houston [14th Dist.] 2017,
no pet.). Second, with respect to the proof requirement, the party who is
contending he has not had an adequate opportunity for discovery before a
summary-judgment hearing or that there has not been adequate time for discovery
under Texas Rule of Civil Procedure 166a(i), must file either an affidavit
explaining the need for further discovery or a verified motion for continuance. See
Tex. R. Civ. P. 166a(g); see also Tenneco, Inc. v. Enter. Prods., Co., 925 S.W.2d
640, 647 (Tex. 1996); Kaldis v. Aurora Loan Servs., 424 S.W.3d 729, 736 (Tex.
App.—Houston [14th Dist.] 2014, no pet.); Lindsey Constr., Inc. v. AutoNation
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Fin. Services, LLC, 541 S.W.3d 355, 360 (Tex. App.—Houston [14th Dist.] 2017,
no pet.); Alco Realty v. Coastal Horizons Inv., LLC, No. 01-17-00984-CV, 2018
WL 6377388, at *3 (Tex. App.—Houston [1st Dist.] Dec. 6, 2018, no pet.).
We accept that unverified parts of the record provide some evidence of the
McInnis factors, and that some of the factors are favorable to appellant’s argument
in demonstrating time constraints in responding to Haldankar’s summary-judgment
motion. The discovery period had been extended several months just a day before
the court’s summary judgment order. There are periods of time during the
pendency of the suit that discovery had been limited due to litigation over the
Marshes’ expert reports. But, in the absence of either an affidavit explaining the
need for further discovery, or a verified motion for continuance of the summary-
judgment hearing aimed at the same purpose, we cannot conclude that the trial
court abused its discretion. In the absence of sworn proof, the trial court was free
to conclude that it lacked the required proof by the Marsh’s explaining their need
for further discovery to respond to appellant’s no-evidence summary judgment
motion.
We overrule the Marshes’ second issue.
III. CONCLUSION
Having considered the Marshes’ issues on appeal challenging the trial
court’s final summary judgment, we conclude that both lack merit. We therefore
affirm the order of the trial court.
/s/ Randy Wilson
Justice
Panel consists of Justices Wise, Poissant and Wilson.
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