ACCEPTED
04-15-00061-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
2/23/2015 2:13:08 PM
KEITH HOTTLE
CLERK
No. 04-15-00061-CV4th COURT
FILED IN
OF APPEALS
__________________________________________
SAN ANTONIO, TEXAS
IN THE COURT OF APPEALS OF TEXAS 02/23/2015 2:13:08 PM
FOURTH JUDICIAL DISTRICT KEITH E. HOTTLE
Clerk
SAN ANTONIO, TEXAS
__________________________________________
RAVI BOTLA, M.D.,
Petitioner/Defendant,
vs.
SALVADOR DEL TORO, JR.,
Respondent/Plaintiff.
__________________________________________
FROM THE 131ST JUDICIAL DISTRICT COURT, BEXAR COUNTY,
CAUSE NO. 2013-CI-19135, HON. PETER SAKAI, PRESIDING
__________________________________________
RESPONSE IN OPPOSITION TO PETITION FOR PERMISSION TO
APPEAL ORDER DENYING MOTION FOR SUMMARY JUDGMENT
AND, ALTERNATIVELY, CROSS-PETITION FOR PERMISSION TO
APPEAL ISSUE OF STANDING
__________________________________________
Kimberly S. Keller George W. Mauzé, II
SBN: 24014182 SBN: 13238800
KELLER STOLARCZYK, PLLC MAUZÉ LAW FIRM
234 W. Bandera Rd. #120 2632 Broadway, Suite 401S
Boerne, TX 78006 San Antonio, TX 78215
Tele: 830.981.5000 Tele: 210.225.6262
Facs: 888.293.8580 Facs: 210.354.3909
kim@kellsto.com gmauze@mauzelawfirm.com
IDENTITY OF PARTIES & COUNSEL
Respondent agrees with Petitioner’s identification of the
parties and counsel, except to add newly-retained appellate
counsel:
Kimberly S. Keller
KELLER STOLARCZYK PLLC
234 West Bandera Road
No. 120
Boerne, Texas 78006
2
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES & COUNSEL ...................................... 2
TABLE OF CITATIONS ......................................................... 5
STATEMENT OF THE CASE ................................................. 8
ISSUES PRESENTED .......................................................... 10
1. Whether the following issues constitute
“controlling questions of law about which
there is a substantial ground for difference
of opinion”:
a. Was Respondent’s medical authorization
sufficient to toll limitations as to the
claims against Petitioner?
b. If the medical authorization was
sufficient, was Respondent required to
file his lawsuit on a Sunday?
2. Whether an immediate appeal of the
aforementioned questions will materially
advance the ultimate termination of the
litigation.
3. Alternatively, if this Court grants the
Petition, Respondent also asks this Court to
grant its Cross-Petition to address the
question of whether Respondent has
standing to challenge the sufficiency of the
authorization.
STATEMENT OF THE FACTS ............................................. 11
SUMMARY OF THE ARGUMENT ......................................... 14
3
ARGUMENT ....................................................................... 16
I. STANDARD OF REVIEW .................................................... 16
II. THE RULINGS PETITIONER SEEKS TO IMMEDIATELY
APPEAL DO NOT CONSTITUTE “CONTROLLING QUESTIONS
OF LAW ABOUT WHICH THERE IS A SUBSTANTIAL GROUND
FOR DIFFERENCE OF OPINION” ......................................... 17
A. The law governing the sufficiency of
medical authorizations is well-established ........ 18
B. It is well-established that plaintiffs do not
have to file lawsuits on Sundays ....................... 22
III. AN IMMEDIATE APPEAL OF THE QUESTIONS WILL NOT
MATERIALLY ADVANCE THE ULTIMATE TERMINATION OF
THE LITIGATION ............................................................. 25
IV. ALTERNATIVELY, IN THE EVENT THIS COURT GRANTS
THE PETITION, RESPONDENT CROSS-PETITIONS FOR
PERMISSION TO APPEAL THE ADDITIONAL QUESTION
AUTHORIZED BY THE TRIAL COURT: WHETHER
PETITIONER HAD STANDING TO CHALLENGE THE
SUFFICIENCY OF THE AUTHORIZATION ................................ 28
CONCLUSION ..................................................................... 31
CERTIFICATE OF COMPLIANCE & SERVICE ...................... 33
APPENDIX A – JANUARY 22,2015 ORDER OF TRIAL
COURT
4
TABLE OF CITATIONS
SUPREME COURT OF TEXAS CASES
Tex. A & M Univ. Sys. v. Koseoglu,
233 S.W.3d 835 (Tex. 2007) ................................................ 16
TEXAS INTERMEDIATE APPELLATE COURT CASES
Barlow v. Konda,
No. 05-98-00797-CV (Tex. App. – Dallas 2000, no
pet.) ..................................................................................... 24
Brannan v. Toland,
No. 01–13–00051–CV, 2013 WL 4004472 (Tex.
App.—Hous. [1st Dist.] Aug. 6, 2013, pet. denied) ................ 21
Cantu v. Mission Reg. Med. Ctr.,
13-12-00568-CV, 2014 WL 1879292 (Tex. App. –
Corpus Christi 2014, no pet.) ............................................... 20
Gulf Coast Asphalt Co. v. Lloyd,
_ S.W.3d _, 2015 WL 393407 (Tex. App. – Houston
[14th Dist.) Jan. 29, 2015, no pet. h.)................................... 25
Gulley v. State Farm Lloyds,
_ S.W.3d _, 2014 WL 7339462 (Tex. App. – San
Antonio Dec. 23, 2014, no pet. h.) ........................................ 27
Hebert v. JJT Const.,
438 S.W.3d 139 (Tex. App. -- Houston [14th Dist.]
2014, no pet.) ...................................................................... 16
In re Estate of Fisher,
421 S.W.3d 682 (Tex. App. – Texarkana 2014, no
pet.) ..................................................................................... 23
5
Jefferson Cty. v. Swain,
_ S.W.3d _, 2014 WL 6985118 (Tex. App. –
Beaumont 2014, no pet.)...................................................... 14
King-A Corp. v. Wehling,
No. 13-13-00100-CV, 2013 WL 1092209 (Tex. App.
– Corpus Christi, Mar. 14, 2013, no pet.) ........................ 17,18
Mitchell v. Methodist Hosp.,
376 S.W.3d 833 (Tex. App.—Houston [1st Dist.]
2012, pet. denied) ................................................................ 21
Mock v. Presbyterian Hosp. of Plano,
379 S.W.3d 391 (Tex. App.—Dallas 2012, pet.
denied) ........................................................................... 19,20
Morgan Stanley & Co. LLC v. Fed. Deposit Ins. Co.,
No. 14-14-00849-CV, 2014 WL 6679611 (Tex. App.
– Houston [14th Dist.] 2014, no pet.) ..................................... 14
Phoenix Energy, Inc. v. Breitling Royalties Corp.,
No. 05-14-01153-CV (Tex. App. – Dallas 2014,
no pet.) ...................................................................... 14,18,22
Rabatin v. Kidd,
281 S.W.3d 558 (Tex. App.—El Paso 2008, no pet.) .............. 20
State Fair of Tex. v. Iron Mountain Info. Mgmt., Inc.,
299 S.W.3d 261 (Tex. App. -- Dallas 2009, no pet.) ............... 16
Target Corp. v. Ko,
No. 05-14-00502-CV (Tex. App. – Dallas 2014, no
pet.) ................................................................................ 16,17
FEDERAL CASES
New Jersey Reg. Council of Carpenters v. D.R. Horton, Inc.,
No. 08-1731, 2011 WL 1322204 (D.N.J. 2011) ..................... 25
6
Speir v. Robert C. Herd & Co.,
189 F.Supp. 436 (D.C.Md. 1960) .......................................... 26
STATUTORY & OTHER AUTHORITY
Medical Malpractice & Tort Reform Act of 2003, 78th Leg.,
R.S., ch. 204, § 10.11(a)(5), 2003 Tex. Gen Laws
847 ...................................................................................... 24
TEX. CIV. PRAC. & REM. CODE ANN. § 16.072 ............................... 23,24
TEX. CIV. PRAC. & REM.CODE § 51.014 .................................. 16,23,24
TEX. R. CIV. P. 4 ............................................................................ 23
7
STATEMENT OF THE CASE
Nature of the Case: This is a medical malpractice case. Petitioner’s
motion for summary judgment was denied.
Petitioner now asks this Court to grant him the
right to file an interlocutory appeal of the
denial of the summary judgment motion.
Trial Court: 131st Judicial District, Bexar County;
Honorable Peter Sakai, presiding.
Disposition: After considering the parties’ briefing and
supplemental briefing, as well as the
arguments of counsel at the hearing, the trial
court denied Petitioner’s motion for summary
judgment. The trial court then granted the
parties permission to interlocutorily appeal
three questions: (1) whether Respondent’s
medical authorization was sufficient to toll the
statute of limitations; (2) whether Petitioner
had standing to challenge the sufficiency of the
authorization; and (3) if Petitioner had to file
suit on a Sunday.
Petition: Petitioner filed this Petition with this Court
asking this Court to permit him to
interlocutorily appeal the first and third
questions authorized by the trial court.
Requested Relief on
Appeal by
Respondent: Respondent asks this Court to deny the
Petition because the issues sought to be
appealed do not meet the statutory
requirements imposed by Section 51.014(d).
Alternatively, if this Court grants the Petition,
Respondent asks this Court to also grant his
Cross-Petition to interlocutorily appeal the
second question authorized by the trial court:
8
whether Petitioner has standing to challenge
the sufficiency of the authorization.
9
ISSUES PRESENTED
1. Whether the following issues constitute “controlling questions
of law about which there is a substantial ground for difference
of opinion”:
a. Was Respondent’s medical authorization sufficient to toll
limitations as to the claims against Petitioner?
b. If the medical authorization was sufficient, was
Respondent required to file his lawsuit on a Sunday?
2. Whether an immediate appeal of the aforementioned questions
will materially advance the ultimate termination of the
litigation.
3. Alternatively, if this Court grants the Petition, Respondent also
asks this Court to grant its Cross-Petition to address the
question of whether Respondent has standing to challenge the
sufficiency of the authorization.
10
STATEMENT OF THE FACTS
This is a medical malpractice case. In 2011, Respondent went
to the doctor (Dr. James Lackey) for lower abdominal pain, nausea,
and vomiting.1 He was fatigued, dehydrated, and had a history of
diverticulitis and hospitalizations for acute diverticulitis, the most
recent one occurring one month prior. A CT scan revealed “a
severely diseased sigmoid colon with underlying diverticular burden
and a stricture.” Respondent was referred to Nix Hospital for further
treatment and evaluation.
Respondent was then seen by Dr. Gerardo E. Cárcamo (Co-
Defendant in the underlying proceeding, but not a party to this
request for an interlocutory appeal), who recommended a plan for
surgery. Respondent 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 Austin surgeon
and discovered he would not be available until the next week,
Respondent requested surgery that day by Defendant Cárcamo.
However, Defendant Cárcamo had left the hospital already and
Respondent’s Statement of Facts is drawn from Respondent’s Fourth Amended
1
Petition, which is Appendix D to the Petition.
11
informed the nursing staff that he would see Respondent the next
morning.
The next morning, Petitioner, Dr. Ravi Botla, a
gastroenterologist, consulted with Respondent. He recommended a
colonoscopy. Respondent refused the colonoscopy and again
expressed his decision to proceed with the surgery recommended by
Defendant Cárcamo. Defendant Cárcamo spoke to Respondent, who
again expressed his decision to proceed with the recommended
surgery, but Defendant Cárcamo changed his plan to
recommending a colonoscopy before surgery.
Thus, that day, Petitioner ordered, and Respondent was
administered, “GoLYTELY” for gastrointestinal prep before the
colonoscopy. Respondent did not have a bowel movement after the
GoLYTELY was administered. Respondent began complaining of
severe pain to his abdomen. Defendant Cárcamo and Petitioner
were notified of Respondent’s reaction to the GoLYTELY, but failed
to examine Respondent or order any diagnostic tests. Respondent’s
abdominal pain ultimately worsened to a scale of 10 out of 10 for
the next 12 hours. The next morning, a CT scan revealed the
presence of free air, which was indicative of a perforated colon.
12
Respondent was immediately taken to the operating room,
where Defendant Cárcamo found a perforated right colon and fecal
contamination, which had progressed to sepsis. Defendant Cárcamo
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-
colostomy with Hartmann pouch and wound VAC placement.
Respondent then suffered extended hospitalization and multiple
more surgeries during 2012.
In 2013, Respondent notified Defendant Cárcamo of the
impending lawsuit against him, submitted to him a medical
authorization under section 74.052 of the Texas Civil Practice and
Remedies Code, and then filed the lawsuit. Pet.App.B,C. Petitioner
concedes Respondent’s suit against Defendant Cárcamo was timely
filed. Pet. at 8. Then, in 2014, Respondent amended the lawsuit to
add Petitioner. Pet.App.D. Petitioner filed a motion for summary
judgment, contending the medical authorization submitted to
Defendant Cárcamo was insufficient to trigger the tolling provision
in section 74.015(c) of the Texas Civil Practice and Remedies Code.
Pet.App.E. The trial court denied the motion and authorized the
13
appeal of three questions to this Court. Pet. App. A. Petitioner now
asks this Court to grant him permission to appeal two of those
questions (Questions One and Three authorized by the trial court).
Id.
SUMMARY OF THE ARGUMENT
This Court should deny the Petition. Precedent establishes
that appellate courts regularly deny permissive appeals of orders
denying summary judgment, such as the one in this case. See
Morgan Stanley & Co. LLC v. Fed. Deposit Ins. Co., No. 14-14-00849-
CV, 2014 WL 6679611, *1 (Tex. App. – Houston [14th Dist.] 2014, no
pet.) (denying permission to appeal denial of summary judgment
motion); see Jefferson Cty. v. Swain, _ S.W.3d _, 2014 WL 6985118,
*1 (Tex. App. – Beaumont 2014, no pet.) (twice denying County’s
request to permissively appeal denial of motion to dismiss).
A review of the record demonstrates the case law presented to
the trial court (and recounted in the Petition) is not conflicting.
Rather, the differing facts relied upon by the appellate courts, all
applying the same well-established law, led to differing conclusions
in those cases. Phoenix Energy, Inc. v. Breitling Royalties Corp., No.
05-14-01153-CV, *2 (Tex. App. – Dallas 2014, no pet.) (denying
14
permissive appeal because “difference of opinion” in the purportedly
“conflicting” precedent arose from difference in facts in each case,
not different interpretation of the governing law). In other words,
the law is well-established and is regularly applied by trial courts
based on the specific facts of the case, as occurred here.
Additionally, this appeal, if allowed, will not lead to an
“ultimate termination of the litigation,” as required by section
51.014(d), because, even if Petitioner prevails, which Respondent
disputes, the remaining claims against the Co-Defendant Cárcamo
will remain at the trial court until final resolution and then move
forward on appeal to this Court. Thus, Respondent respectfully
requests this Court deny the Petition and dismiss the appeal.
Alternatively, if this Court grants the Petition, Respondent
respectfully requests this Court grant his Cross-Petition and also
allow review of the remaining question authorized by the trial court:
whether Petitioner had standing to challenge the sufficiency of the
authorization (Question Two in the trial court’s order). Pet.App.A.
15
ARGUMENT
I.
STANDARD OF REVIEW
Courts of appeals do not have jurisdiction over appeals from
interlocutory orders unless authorized by statute. Tex. A & M Univ.
Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007). Under section
51.014(d), this Court may accept a permissive interlocutory appeal
if: (1) the order being 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), (f); Hebert v. JJT Const., 438 S.W.3d 139,
140 (Tex. App. -- Houston [14th Dist.] 2014, no pet.).
In determining whether to accept the appeal, this Court is
required to strictly construe the exacting requirements of an
interlocutory appeal governed by section 51.014(d). State Fair of
Tex. v. Iron Mountain Info. Mgmt., Inc., 299 S.W.3d 261, 264 (Tex.
App. -- Dallas 2009, no pet.). Moreover, the fact that the trial court
might have erred is not, on its own, a basis for a permissive appeal.
Target Corp. v. Ko, No. 05-14-00502-CV, *1 (Tex. App. – Dallas
16
2014, no pet.) (denying permissive appeal from denied summary
judgment based on statute of limitations, stating “the fact that the
trial court may have erred in not granting summary judgment is not
a basis for a permissive appeal”). Rather, the pivotal question is
whether the law governing the issue appealed is unclear. In this
case, the law is clear. And, according to Respondent, the trial court
correctly applied the law.
II.
THE RULINGS PETITIONER SEEKS TO IMMEDIATELY APPEAL DO NOT
CONSTITUTE “CONTROLLING QUESTIONS OF LAW ABOUT WHICH THERE IS
A SUBSTANTIAL GROUND FOR DIFFERENCE OF OPINION”
In this case, the case law cited by Petitioner demonstrates that
the law governing the summary judgment ruling is well-settled.
Target Corp. v. Ko, No. 05-14-00502-CV, *1 (Tex. App. – Dallas
2014, no pet.) (denying permissive appeal on question of whether
statute of limitations was tolled because law governing the question
was “well settled”); King-A Corp. v. Wehling, No. 13-13-00100-CV,
2013 WL 1092209, *1 (Tex. App. – Corpus Christi, Mar. 14, 2013,
no pet.) (same). While Petitioner may not agree with the application
by the trial court of that law to the specific facts of this case,
Petitioner’s disagreement, in and of itself, does not authorize an
17
interlocutory appeal. King–A Corp., 2013 WL 1092209, at *3 (“[W]e
disapprove of the notion that this standard [substantial ground for
difference of opinion] is met by default whenever a trial court rules
against a petitioner for permissive review.”).
A. The law governing the sufficiency of medical
authorizations is well-established.
The parties dispute whether the medical authorization,
Pet.App.F at Exh.E, is sufficient. Petitioner contends the resolution
of this question is based on “controlling questions of law as to
which there are substantial grounds for differences of opinion.” Pet.
at 16. However, a review of the purportedly “conflicting” case law
cited by Petitioner, discussed in more detail below, reveals that each
case relied upon stems from a different set of facts. Thus, there are
no varying opinions as to the governing law, but rather, there are
varying factual underpinnings of the relied upon cases leading to
different results in those cases. Phoenix Energy, Inc. v. Breitling
Royalties Corp., No. 05-14-01153-CV, 2014 WL 6541259, *2 (Tex.
App. – Dallas 2014, no pet.) (denying permissive appeal because
“difference of opinion” arose from difference in facts in each case,
not different interpretation of the governing law). In other words,
18
there are no conflicting “questions of law” as required by section
51.014(d), but rather, courts of appeals applying well-established
law to varying sets of facts.
The Petition discusses the case law cited by Petitioner, as well
as the case law cited by Respondent, in an attempt to portray a
conflict of law. Yet, a close look at these cases shows that they all
consistently apply the same law. For example, in Mock v.
Presbyterian Hosp. of Plano, 379 S.W.3d 391 (Tex. App.—Dallas
2012, pet. denied), the authorization form in question “did not
authorize [defendants] to obtain the specified health information
about the decedent[,] [but] [i]instead, the authorization form
authorized the [defendants’] counsel to obtain that information.”
The appellate court concluded that as long as the plaintiff provides
the statutorily prescribed authorization form, the failure to
complete one of the blanks on the form does not render the form
defective. Id. at 394. The court based its decision on the statute’s
mandate that the form specified in section 74.052 is what must be
provided. Id. The court held that the plaintiffs used a “medical
authorization form [that] precisely tracked the statutorily prescribed
text.” Id. That the plaintiffs “filled the second blank out incorrectly”
19
did not render the form defective. Id. Rather, the form still “satisfied
the legislative purpose,” i.e., to provide “fair warning of a claim and
an opportunity to abate the proceedings for negotiations and
evaluation of the claim[.]” Id. (citing with approval Rabatin v. Kidd,
281 S.W.3d 558, 562 (Tex. App.—El Paso 2008, no pet.)).
Accordingly, the statute of limitations was tolled under section
74.051(c). Mock, 379 S.W.3d at 392; see also Rabatin v. Kidd, 281
S.W.3d 558, 562 (Tex. App.—El Paso 2008, no pet.) (errors and
omission in section 74.052 form do not render authorization
insufficient).
Petitioner contrasts the aforementioned cases to other cases in
an attempt to demonstrate a “conflict” in the case law. However, a
review of Petitioner’s case law reveals that his cases are based on
completely different facts, namely situations where there was either
(1) a complete lack of authorization form during the statutorily
prescribed time, or (2) a form that failed to follow the form language
specifically outlined in the statute – neither of which were present
in the underlying case before this Court. For example, in Cantu v.
Mission Reg. Med. Ctr., 13-12-00568-CV, 2014 WL 1879292 (Tex.
App. – Corpus Christi 2014, no pet.), “the authorization forms that
20
Cantu provided did not correctly track the statutorily prescribed
text nor provide any of the specified information.” In fact, the Cantu
court, after reviewing its fact in light of the precedent established by
Mock and Rabatin, determined that the same law applied, but that
the different facts of Cantu required a different result. Id. at 4.
Petitioner also relied upon Mitchell v. Methodist Hosp., 376
S.W.3d 833, 837 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).
There, again, existed a different set of facts from those underlying
this case, Mock, and Rabatin. In Mitchell, the plaintiffs did not use a
section 74.052(c) form; instead, “they provided Methodist with a
HIPPA-compliant form generally authorizing the disclosure of
Mitchell's protected health care information.” Id. Additionally,
Petitioner relied on Brannan v. Toland, No. 01–13–00051–CV, 2013
WL 4004472, *2 (Tex. App.—Hous. [1st Dist.] Aug. 6, 2013, pet.
denied) (mem. op.), where once again, the plaintiffs did not use a
section 74.052(c), but, rather, “they provided a blank medical-
records release authorization form, containing Charles Brannan’s
signature only.”
Thus, a review of the purportedly “conflicting” law reveals that
there is, indeed, no conflict. When a section 74.052 form is used,
21
even if it is filled out incorrectly, the governing law provides that it
is sufficient; when a non-section 74.052 form is used, it is deemed
insufficient. As a result, although there may be differing
conclusions reached by varying appellate courts, those differing
conclusions result not from conflicting interpretations of the law,
but rather, from the differences in the facts in each case. In such
circumstances, no permissive appeal is allowed. Phoenix Energy,
Inc., 2014 WL 6541259, *2.
B. It is well-established that plaintiffs do not have to file
lawsuits on Sundays.
At the outset, Respondent contends this Court need not
consider this question in the section 51.014(d) analysis, i.e.,
whether to grant the Petition for Permissive Appeal, because the
question turns on a fact issue – whether Respondent’s claim
accrued on December 17, 2011 (the first day of Petitioner’s
treatment of Respondent) or December 18, 2011 (the second day of
Petitioner’s treatment of Respondent). The only way that Petitioner’s
question on appeal becomes relevant is if Respondent’s claim
accrued on the earlier date, thereby requiring him to file suit,
22
according to Petitioner, on a Sunday, as opposed to on the next
Monday, which is when Respondent filed suit. Pet. at 20.
However, because the factual dispute (of when Respondent’s
cause of action accrued) has yet to be resolved and has not been
appealed (and has not been authorized by the trial court to
appealed), this outstanding factual dispute precludes a permissive
interlocutory appeal of this question. See In re Estate of Fisher, 421
S.W.3d 682, 685 (Tex. App. – Texarkana 2014, no pet.) (when issue
raised in permissive appeal is controlling fact question, as opposed
to controlling legal question, then appeal does not fall within
section 51.014(d)).
If this Court disagrees, then it should, nonetheless, deny the
Petition because the law governing whether lawsuits must be filed
on Sundays, as opposed to the following Monday, is well-
established. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.072; TEX. R.
CIV. P. 4 (allowing extension of deadlines falling on weekends and
holidays to the following business day).
Petitioner maintains that medical malpractice cases are
excluded from the extension provided by Rule 4 and section 16.072
and contends its argument presents an issue of first impression.
23
Chapter 74 has been on the books since 2003. Medical Malpractice
& Tort Reform Act of 2003, 78th Leg., R.S., ch. 204, § 10.11(a)(5),
2003 Tex. Gen Laws 847, 884. Yet, in the 12 years passing between
Chapter 74’s enactment and this case, Petitioner can point to no
case wherein a court, trial or appellate, has excluded a medical
malpractice case from the extension provisions found in Rule 4 and
section 16.072.
Thus, although Petitioner labels its argument as one of “first
impression” in an attempt to trigger the requirement of an
immediate appeal under section 51.014(d), Pet. at 20, in all
actuality, Petitioner’s argument is but a rogue minnow swimming
upstream against the plethora of authority demonstrating that
medical malpractice cases are regularly found and held to be
governed by Rule 4 and section 16.072. See generally Barlow v.
Konda, No. 05-98-00797-CV, n.3 (Tex. App. – Dallas 2000, no pet.)
(unpublished) (holding that notice of a medical malpractice suit on
a Tuesday “would be timely” because the potential accrual dates
occurred on a “Saturday, Sunday, and Martin Luther King, Jr. Day
[a legal holiday]” and citing to section 16.072).
24
III.
AN IMMEDIATE APPEAL OF THE QUESTIONS WILL NOT MATERIALLY
ADVANCE THE ULTIMATE TERMINATION OF THE LITIGATION
Petitioner argues that an appellate review of the summary
judgment order will materially advance the ultimate termination of
the litigation because, if Petitioner is correct about the legal issues,
which Respondent disputes, then Respondent’s claims against
Petitioner are time-barred. However, regardless of the outcome of
this requested appeal, the litigation will continue because there
remains another co-defendant at the trial court level, Defendant
Cárcamo. This fact precludes a determination that this appeal will
lead to the ultimate termination of the litigation. See Gulf Coast
Asphalt Co. v. Lloyd, _ S.W.3d _, 2015 WL 393407, *5 (Tex. App. –
Houston [14th Dist.) Jan. 29, 2015, no pet. h.) (denying permission
to appeal, noting there is little authority available for the standard
imposed, and recommending looking to federal law for guidance);
New Jersey Reg. Council of Carpenters v. D.R. Horton, Inc., No. 08-
1731, 2011 WL 1322204, *5 (D.N.J. 2011) (“In this case,
certification would not materially advance the ultimate termination
of the litigation. While a successful appeal would remove Horton
from the case, it would not end the litigation, as the plaintiffs would
25
continue to litigate against Horton–N.J. and Tosa.”) (quoting and
citing with approval Speir v. Robert C. Herd & Co., 189 F.Supp. 436
(D.C.Md. 1960) (“But in the instant case there are now three
defendants. The case will proceed against the other two in any
event, and the retention of Newtex is not likely to prolong the trial
appreciably. It will cause some expense to Newtex, which would be
avoided if my order were reversed on appeal. That consideration,
however, must be weighed against the policy discouraging
‘piecemeal appeals', discussed in the cases cited and in other
opinions under sec. 1292(b). Under the circumstances of this case, I
should not make the requested statement in the order”).
In other words, if this Court grants the Petition, it does not
secure an “ultimate termination” of the litigation; rather, it only
ensures that two, as opposed to one, appeal will stem from the
underlying case. After this appeal is completed, regardless of the
outcome, the remaining claims will need to be disposed of by the
trial court (whether those claims involve both Petitioner and
Defendant Cárcamo or just Defendant Cárcamo) and then, in all
likelihood, this Court will face yet another appeal involving those
remaining claims.
26
Another case from this Court provides a good example of how
interlocutory appeals sometimes add to the extent of litigation, as
opposed to triggering the “ultimate termination of the litigation.”
See Gulley v. State Farm Lloyds, _ S.W.3d _, 2014 WL 7339462, *2
(Tex. App. – San Antonio Dec. 23, 2014, no pet. h.) (case originally
filed in 2008; this court was addressing the third appeal in the
underlying case, the first of which was a permissive interlocutory
appeal filed and accepted in 2010, which should have been
accepted only if the appeal led to the “ultimate termination of the
litigation”).
Additionally, Respondent notes that this Petition fails to
address the claims brought by Respondent against Petitioner that
accrued on December 18, 2011. For those claims, Petitioner’s “you
must file on Sunday” argument is inapplicable because the
limitations period ended on a Monday, which is the date the lawsuit
was filed. As a result, those claims would not be disposed of by this
appeal, even assuming Petitioner is successful. Accordingly, those
claims would remain at the trial court level, along with the claims
pending against Defendant Cárcamo.
In conclusion, Respondent contends this appeal, if permitted,
27
will not lead to the ultimate termination of the litigation, as is
required by section 51.014(d). Accordingly, in light of the foregoing
grounds, this Court should deny the Petition and dismiss the
appeal.
IV.
ALTERNATIVELY, IN THE EVENT THIS COURT GRANTS THE PETITION,
RESPONDENT CROSS-PETITIONS FOR PERMISSION TO APPEAL THE
ADDITIONAL QUESTION AUTHORIZED BY THE TRIAL COURT: WHETHER
PETITIONER HAD STANDING TO CHALLENGE THE SUFFICIENCY OF THE
AUTHORIZATION
In the event this Court rejects this Response and grants the
Petition, Respondent respectfully requests this Court also grant this
Cross-Petition so that the Court may consider all three questions
authorized by the trial court. Specifically, the trial court authorized
the appeal of the following question: 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 pursuant to Section 74.051(c)?
Pet.App.A,G (Respondent challenged standing on page 4 of his
28
summary judgment response).
In accordance with Texas Rule of Appellate Procedure 28(e)(1),
Respondent provides this Court with the following in regard to its
Cross-Petition: (1) trial court information: Salvador Del Toro v.
Gerardo E. Carcamo, M.D., and Ravi Botla, M.D., No. 2013-CI-19135,
131st District Court, Bexar County, Hon. Peter Sakai, presiding; (2)
order: January 22, 2015 Order Denying Motion for Summary
Judgment and Granting Permission to Appeal (attached as App.A);
(3) Respondent Salvador Del Toro desires to appeal the remaining
authorized question should this Court grant Petitioner’s Petition
requesting appeal of two of the three authorized questions; (4)
appeal is taken to the Fourth Judicial District Court of Appeals; (5)
this appeal will be accelerated in accordance with Texas Rule of
Appellate Procedure 28.3(k).
Respondent contends that if this Court grants the Petition, it
should also grant review of the aforementioned question for the
following reasons. First, if this Court grants the Petition, which asks
whether the authorization is sufficient, then a question preceding
that inquiry is whether Petitioner even has the right to challenge
sufficiency in the first place. It would be inefficient and
29
unproductive to allow Petitioner’s sufficiency issue to be addressed
without first determining if Petitioner has standing to bring the
challenge in the first place.
Second, in order for this Court to have granted the Petition,
this Court must have adopted Petitioner’s position on how the
Court should interpret the law requiring the existence of a
“controlling question of law as to which there are substantial
grounds for differences of opinion.” That section 51.014 analysis, as
urged by Petitioner, also requires this Court to hold that the
aforementioned question, related to Petitioner’s standing, also
satisfies that standard. Specifically, the question of whether a
defendant, not served with the purportedly deficient authorization,
can bring a challenge to the sufficiency of the authorization, has not
yet been addressed by any appellate court. Therefore, that question
is novel and one of first impression, which is the same argument
made by Petitioner with regard to the other two questions sought to
be appealed in this proceeding. Pet. at 22.
Moreover, the second prong of section 51.014 is met because
the appeal of the aforementioned question may materially advance
the ultimate termination of the litigation. Specifically, if this Court
30
allows appeal of this question and Respondent succeeds, then the
parties are much more likely to settle their claims before a trial on
the merits, as opposed to going through with a trial and then
appealing the issues to this Court.
CONCLUSION
This Court should deny the Petition. The questions raised by
Petitioner do not constitute “controlling questions of law about
which there is a substantial ground for difference of opinion.”
Moreover, an immediate appeal based on these questions will not
materially advance the ultimate termination of the litigation. As
such, Respondent respectfully requests this Court deny the Petition
and dismiss this appeal. Alternatively, if this Court grants this
Petition, Respondent respectfully requests this Court grant his
Cross-Petition and permit review of the additional question
authorized by the trial court: whether Petitioner had standing to
challenge the sufficiency of the authorization.
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Respectfully submitted,
KELLER STOLARCZYK PLLC
234 West Bandera Road,
No. 120
Boerne, Texas 78006
Telephone: 830.981.5000
Facsimile: 888.293.8580
By: /s/Kimberly S. Keller
Kimberly S. Keller
State Bar No. 24014182
Email: kim@kellsto.com
George W. Mauzé, II
SBN: 13238800
MAUZÉ LAW FIRM
2632 Broadway, Suite 400S
San Antonio, Texas 78215
Tele: 210.225.6262
Facs: 210.354.3909
Counsel for Respondent
32
CERTIFICATE OF COMPLIANCE & SERVICE
I certify that this Response in Opposition to the Petition for
Permission to Appeal Order Denying Motion for Summary
Judgment and Alternative Cross-Petition contains 3,988 words.
Also, on February 23, 2015, I served a copy of this Response in
Opposition to the Petition for Permission to Appeal Order Denying
Motion for Summary Judgment and Alternative Cross-Petition on
those individuals listed below via this Court’s e-filing system or
facsimile:
Diana L. Faust
Michelle E. Robberson
COOPER & SCULLY, P.C.
900 Jackson Street, Suite 100
Dallas, Texas 75202
Brett B. Rowe; Nicki K. Elgie
EVANS, ROWE & HOLBROOK, P.C.
10101 Reunion Place, Suite 900
San Antonio, Texas 78216
/s/Kimberly S. Keller
Kimberly S. Keller
33
Ravi Botla, M.D. v. Salvador Del Toro, Jr.
Combined Opinion