ACCEPTED
04-14-00803-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/3/2015 5:53:20 PM
KEITH HOTTLE
CLERK
ORAL ARGUMENT REQUESTED FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
NO. 04-14-00803-CV 03/3/2015 5:53:20 PM
KEITH E. HOTTLE
IN THE Clerk
FOURTH COURT OF APPEALS AT SAN ANTONIO
____________________________________________________
JUAN FRANCISCO MONTALVO, M.D., F.A.C.O.G, ET AL.
Appellants,
v.
GABRIELA LOPEZ
Appellee.
___________________________________________________
On appeal from the 341st Judicial District Court of Webb County, Texas
Cause No. 2013CVT 000841-D3 (Hon. Beckie Palomo)
AMENDED BRIEF OF APPELLEE
Darrell L. Keith
SBOT No. 11186000
dkeith@keithlaw.com
Laura A. Russell
SBOT No. 24046777
lrussell@keithlaw.com
KEITH LAW FIRM, P.C.
301 Commerce Street, Suite 2850
Fort Worth, Texas 76102
T. 817. 338.1400
F. 817. 870.2448
ATTORNEYS FOR APPELLEE
NO. 04-14-00803-CV
IN THE
FOURTH COURT OF APPEALS AT SAN ANTONIO
____________________________________________________
JUAN FRANCISCO MONTALVO, M.D., F.A.C.O.G, ET AL.
Appellants,
v.
GABRIELA LOPEZ
Appellee.
___________________________________________________
On appeal from the 341st Judicial District Court of Webb County, Texas
Cause No. 2013CVT 000841-D3 (Hon. Beckie Palomo)
IDENTITY OF PARTIES AND COUNSEL
In accordance with Rule 38.1(a) of the Texas Rules of Appellate Procedure,
the following is a list of names and addresses of the parties to the trial court’s
judgment and their counsel:
Appellee: Gabriela Lopez
Appellants: Juan Francisco Montalvo, M.D.,
Miguel E. Najera, J.D., Executor of
Estate of Miguel E. Najera, M.D.,
Deceased,Winder N. Vasquez, M.D.,
Laredo Regional Medical Center, L.P.
d/b/a Doctors Hospital of Laredo
i
Appellate Counsel for Appellee: Darrell L. Keith
Laura A. Russell
Keith Law Firm, P.C.
301 Commerce Street, Suite 2850
Fort Worth, Texas 75102
Trial Counsel for Appellee: Darrell L. Keith
Keith Law Firm, P.C.
301 Commerce Street, Suite 2850
Fort Worth, Texas 75102
Appellate Counsel for Appellants Diana L. Faust
Juan Francisco Montalvo, M.D., R. Brent Cooper
Miguel E. Najera, J.D., Executor Kyle M. Burke
of Estate Of Miguel E. Najera, Cooper & Scully, P.C.
M.D., Deceased, Winder N. Vasquez, 900 Jackson St., Suite 100
M.D., Laredo Regional Medical Dallas, Texas 75202
Center, L.P. d/b/a Doctors Hospital
of Laredo:
Trial Counsel for Juan Mr. James Kevin Oncken
Francisco Montalvo, M.D.: Roger A. Berger
Uzick & Oncken, P.C.
238 Westcott Street
Houston, Texas 77007
Trial Counsel for Miguel E. Mr. W. Richard Wagner
Najera, J.D., Executor of Estate Mr. Peter Cario
Of Miguel E. Najera, M.D., Wagner Cario, L.L.P
Deceased: 7718 Broadway, Suite 100
San Antonio, Texas 78209
Trial Counsel for Winder N. Mr. Bruce E. Anderson
Vasquez, M.D.: Mr. James W. Veale, Jr.
Ms. Lorien L. Whyte
Brin & Brin, P.C.
6223 IH 10 West
San Antonio, Texas 78201
ii
Trial Counsel for Laredo Mr. Steven M. Gonzalez
Regional Medical Center, L.P. Mr. Edward J. Castillo
d/b/a Doctors Hospital of Laredo: Gonzalez Castillo, LLP
1317 E. Quebec Avenue
McAllen, Texas 78503
iii
NO. 04-14-00803-CV
IN THE
FOURTH COURT OF APPEALS AT SAN ANTONIO
____________________________________________________
JUAN FRANCISCO MONTALVO, M.D., F.A.C.O.G, ET AL.
Appellants,
v.
GABRIELA LOPEZ
Appellee.
___________________________________________________
On appeal from the 341st Judicial District Court of Webb County, Texas
Cause No. 2013CVT 000841-D3 (Hon. Beckie Palomo)
REQUEST FOR ORAL ARGUMENT
Appellee Gabriela Lopez respectfully requests oral argument in this case and
believes it will help the Court in evaluating the case and resolving this appeal.
Tex. R. App. P. 39.1, 39.7.
iv
TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL ................................................................ i
REQUEST FOR ORAL ARGUMENT ................................................................. iv
TABLE OF CONTENTS ........................................................................................ v
TABLE OF AUTHORITIES ............................................................................... vii
STATEMENT OF THE CASE ............................................................................... x
ISSUES PRESENTED......................................................................................... xii
STATEMENT OF FACTS ..................................................................................... 1
SUMMARY OF THE ARGUMENT ...................................................................... 3
ARGUMENT AND AUTHORITIES ..................................................................... 4
I. THE COURT SHOULD AFFIRM THE TRIAL COURT’S ORDER................................. 4
A. STANDARD OF REVIEW......................................................................... 4
B. GABRIELA LOPEZ’S CAUSE WAS TIMELY FILED . .................................. 4
1. THIRTY YEARS OF PRECEDENT SUPPORTS THE TRIAL COURT
HOLDING § 74.251(a) FACIALLY UNCONSTITUTIONAL. ............. 4
2. THE STATUTE OF LIMITATIONS APPLICABLE TO GABRIELA
LOPEZ’S CAUSE IS TEXAS CIVIL PRACTICE AND REMEDIES CODE
§ 16.003, AS TOLLED BY § 16.001. . ........................................ 11
3. GABRIELA LOPEZ’S NOTICE OF HEALTH CARE LIABILITY CLAIM
TOLLED THE APPLICABLE STATUTE OF LIMITATIONS FOR 75
DAYS. . .................................................................................... 12
v
CONCLUSION .................................................................................................... 19
PRAYER .............................................................................................................. 21
CERTIFICATE OF COMPLIANCE .................................................................... 22
CERTIFICATE OF SERVICE.............................................................................. 23
vi
TABLE OF AUTHORITIES
CASES
Adams v. Gottwald,
179 S.W.3d 101 (Tex. App.—San Antonio 2005, pet. denied) ...................... 7, 8, 10
De Romo v. St. Mary of Plains Hosp. Fnd.,
843 S.W.2d 72 (Tex. App.—Amarillo 1992, writ denied) ..................................... 16
Garcia v. Gomez,
319 S.W.3d 638, 643 (Tex. 2010) ................................................................... 13, 15
In re Collins,
286 S.W.3d 911, 916-17 (Tex. 2009) ............................................................... 13,15
Jose Carreras, M.D., P.A. v. Marroquin,
339 S.W.3d 68 (Tex. 2011) ...................................................................... 13, 15, 17
Karley v. Bell,
24 S.W.3d 516 (Tex. App.—Fort Worth 2000, pet. denied) .................................. 16
Mock v. Presbyterian Hosp.,
379 S.W.3d 391 (Tex. App.—Dallas 2012, pet. denied) ................................. 15, 17
Rabatin v. Kidd,
281 S.W.3d 558 (Tex. App.—El Paso 2008, no pet.) ............................................ 15
Safeco Lloyds Ins. Co. v. Allstate Ins. Co.,
308 S.W.3d 49 (Tex. App.—San Antonio 2009, no pet.) ........................................ 4
Sax v. Votteler,
648 S.W.2d 661 (Tex. 1983) ........................................................................6-11, 14
Schepps v. Presbyterian Hosp. of Dallas,
652 S.W.2d 934, 938 (Tex. 1983) ......................................................................... 13
vii
Tejada v. Gernale,
363 S.W.3d 699 (Tex. App.—Houston 2011, no pet.). .......................................... 16
Tenet Hosps. Ltd. v. Rivera,
445 S.W.3d 698 (Tex. 2014). .............................................................................. 8-9
Texas Indus. Traffic League v. Railroad Comm’n of Tex.,
628 S.W.2d 187 (Tex. App. —Austin 1982),
rev’d on other grounds, 633 S.W.2d 821 (Tex. 1982) .......................................... 18
VanDevender v. Woods,
222 S.W.3d 430 (Tex. 2006) ................................................................................. 18
Weiner v. Wasson,
900 S.W.2d 316 (Tex. 1995) .................................................................. 6-12, 14, 16
STATUTES
Tex. Const. art. I § 13. ................................................................... 1-2, 6-8,10,12,19
Tex. Civ. Prac. & Rem. Code § 16.001 ................................... 2-4, 11-12, 16, 18-20
Tex. Civ. Prac. & Rem. Code § 16.003 ................................... 2-4, 11-12, 16, 18-20
Tex. Civ. Prac. & Rem. Code § 74.051 .............................................. 1-4, 12, 14-19
Tex. Civ. Prac. & Rem. Code § 74.052 ........................................ 2-3, 12, 15, 17, 20
Tex. Civ. Prac. & Rem. Code § 74.251(a) ............................1-5, 7-10, 12, 14, 18-20
Tex. Rev. Civil Stat. art. 4590i § 10.01(a) ................................................ 5-8, 11, 16
Tex. Rev. Civil Stat. art. 4590i § 4.01 ............................................................. 13, 16
Tex. Ins. Code art. 5.82 § 4 ................................................................................. 6, 9
viii
NO. 04-14-00803-CV
IN THE
FOURTH COURT OF APPEALS AT SAN ANTONIO
____________________________________________________
JUAN FRANCISCO MONTALVO, M.D., F.A.C.O.G, ET AL.
Appellants,
v.
GABRIELA LOPEZ
Appellee.
___________________________________________________
On appeal from the 341st Judicial District Court of Webb County, Texas
Cause No. 2013CVT 000841-D3 (Hon. Beckie Palomo)
AMENDED BRIEF OF APPELLEE
TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF
APPEALS:
Appellee Gabriela Lopez submits this Amended Brief of Appellee in
accordance with Texas Rules of Appellate Procedure 9.4 and 38 and the Local
Rules of this Court. In support of affirming the trial court’s denial of Appellants’
motions for summary judgment and affirming the trial court’s substantive rulings,
Appellee Gabriela Lopez respectfully alleges as follows:
ix
STATEMENT OF THE CASE
The underlying proceeding is a medical malpractice action brought by
Appellee Gabriela Lopez against Appellants Juan Francisco Montalvo, M.D.,
F.A.C.O.G., Winder N. Vasquez, M.D., Miguel E. Najera, J.D., Executor of the
Estate of Miguel E. Najera, M.D., Deceased, and Laredo Regional Medical Center,
L.P. d/b/a Doctors Hospital of Laredo based on claims of the Appellants’ medical
negligence and gross negligence which proximately caused Appellee Lopez’s
injuries, harm, and damages. (CR 27, 33-46, 267-271, 453-460).
Appellee Gabriela Lopez filed this cause against Appellants on May 17,
2013, in the 341st Judicial District Court, Webb County, Texas, the Honorable
Beckie Palomo presiding (the “Trial Court”). (CR 27).
On March 19, 2014, the Trial Court entered four interlocutory orders
denying the motions for summary judgment filed by each of the Defendants in
cause no. 2013-CVT000841-D3, styled Gabriela Lopez v. Juan Francisco
Montalvo, M.D., F.A.C.O.G., Winder N. Vasquez, M.D., Miguel E. Najera, J.D.,
Executor of the Estate of Miguel E. Najera, M.D., Deceased, and Laredo Regional
Medical Center, L.P. d/b/a Doctors Hospital of Laredo. (CR 587, 599, 611, 623).
On April 2, 2014, the Defendants filed a motion to appeal interlocutory order in the
Trial Court. (CR 635-640). On April 22, 2014, Plaintiff Gabriela Lopez filed her
response in opposition. On November 3, 2014, the Trial Court entered its
x
Amended Order Denying Defendants’ Motions for Summary Judgment and
Granting Defendants’ Motion for Permission to Appeal Interlocutory Order. (CR
656-662).
On November 14, 2014, Appellants filed their Appellants’ Petition for
Permission to Appeal Amended Order Denying Defendants’ Motions for Summary
Judgment and Granting Defendants’ Motion for Permission to Appeal
Interlocutory Order with this Court (hereinafter “Appellants’ Petition”). Appellee
Gabriela Lopez opposed Appellants’ Petition for Permission to Appeal. On
January 7, 2015, the Court granted Appellant’s Petition.
xi
ISSUES PRESENTED
1. Whether the trial court erred when it concluded that TMLA § 74.251(a)
is facially unconstitutional and violates Texas Constitution article I, §
13’s Open Courts provision as to minors, and determined that Texas Civil
Practice and Remedies Code §§ 16.001 and 16.003 govern limitations as
to Plaintiff’s health care liability claim when it is undisputed that
Gabriela Lopez was a minor at the time of the health care made the basis
of her claims in this cause, and thirty years of precedent in the Texas
Supreme Court and the San Antonio Court of Appeals holds the language
in section 74.251(a) and its predecessor statutes unconstitutional as
applied to minors.
2. Whether the trial court erred when it concluded that TMLA section
74.051(c) provides a 75-day tolling period for presuit notice for Gabriela
Lopez where it is undisputed that (i) Gabriela Lopez’s claim is a health
care liability claim, which, by statute, requires presuit notice; (ii)
Gabriela Lopez complied with TMLA’s section 74.051’s 60-day presuit
notice requirement; (iii) the statute states: “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 does not limit
the “applicable statute of limitations” to TMLA 74.251(a); and (iv) the
purpose of the 60-day notice and concomitant 75-day tolling provision is
to encourage investigation of claims, negotiation, and settlement.
xii
STATEMENT OF FACTS
This is a medical malpractice action brought by Appellee, Gabriela Lopez,
against Appellants based on claims of the Appellants’ medical negligence and
gross negligence which occurred when Gabriela Lopez was 12 years old. (CR 27-
32, 429-440). Gabriela Lopez turned 18 years old on March 11, 2011.
On March 8, 2013, Gabriela Lopez served written notice of her health care
liability claim under Texas Civil Practice and Remedies Code § 74.051 on
Appellants. (CR 184-90, 287-94). Less than 75 days later, on May 17, 2013,
Gabriela Lopez filed her lawsuit against Appellants. (CR 26-27).
In August 2013, each Appellant filed a traditional motion for summary
judgment which alleged that Gabriela Lopez’s health care liability claims were
barred by the statute of limitations in section 74.251(a) of the Civil Practice and
Remedies Code. (CR 77-82, 105-10, 119-24, 174-83).
Gabriela Lopez timely filed responses to each of the motions for summary
judgment, asserting that Texas Medical Liability Act (TMLA) section 74.251(a) is
unconstitutional as to minors as violative of the Open Courts provision of the
Texas Constitution Article I, § 13, and that she was a minor at the time Appellants’
medical negligence and gross negligence occurred. (CR 280-83, 339-41, 488-91).
For this reason, Gabriela Lopez responded that her claims were governed by the
statute of limitations and tolling provision in Texas Civil Practice of Remedies
1
Code sections 16.001 and 16.003. Id. Additionally, because Gabriela Lopez
provided the mandatory 60-day notice of her health care liability claim
accompanied by the authorization forms for release of protected health information
in accordance with TMLA sections 74.051 and 74.052, she asserted the 75-day
tolling provision provided by that section. (CR 283-84, 342-43, 361-62, 491-92).
Appellants filed their replies (CR 421-22, 558-59, 580-81), and Gabriela Lopez
filed supplemental responses. (CR 464-788, 563-78).
On March 5, 2014, the trial court heard the Appellants’ motions for
summary judgment, and on March 19, 2014, signed orders denying Appellants’
motions. (CR 587, 599, 611, 623).
On April 2, 2014, Appellants filed a motion for permission to appeal
interlocutory order [sic] with the Trial Court. (CR 635-43). Gabriela Lopez timely
filed a response in opposition. (Id.). Following a hearing held May 5, 2014, on
November 3, 2014, the trial court entered its Amended Order Denying Defendants’
Motions for Summary Judgment and Granting Defendants’ Motion for Permission
to Appeal Interlocutory Order. (CR 656-72).
The trial court made the following substantive rulings:
(1) Because TMLA § 74.251(a) is facially unconstitutional and
violates Texas Constitution article I, § 13’s Open Courts
provision as to minors, Texas Civil Practice and Remedies
Code §§ 16.001 and 16.003 govern limitations as to Plaintiff’s
health care liability claim; and
2
(2) TMLA § 74.051(c) applies to further toll limitations under
Texas Civil Practice and Remedies Code §§ 16.001 and 16.003
for Plaintiff’s health care liability claim, for a period of 75 days
following her giving of notice and authorization for release of
protected health information to Defendants on March 8, 2013,
which was prior to the expiration of the applicable two-year
statute of limitations. As applied, TMLA §§ 74.051(c) and
74.052 tolled Plaintiff’s health care liability claim until May 22,
2013. Because Plaintiff filed her health care liability claim
lawsuit on May 17, 2013, the applicable statute of limitations
does not bar Plaintiff’s health care liability claim against
Defendants.
(CR 657-58).
SUMMARY OF THE ARGUMENT
It is settled precedent of the Texas Supreme Court and this Court that
section 74.251(a) of the Texas Medical Liability Act (TMLA)1 and its predecessor
limitations provisions are unconstitutional as applied to minors like the Appellee
Gabriela Lopez. Consequently, the statute of limitations applicable to Gabriela
Lopez is Texas Civil Practice and Remedies Code section 16.003, as tolled by
section 16.001. Further, it is well established that timely notice of a health care
liability claim provided under TMLA section 74.051(a) tolls “the applicable statute
of limitations.” The two year statute of limitations under section 16.003 started to
run on Gabriela Lopez’s eighteenth birthday, March 11, 2011. Gabriela Lopez
served notice of her claim, accompanied by the authorization for release of
1
Texas Medical Liability Act (TMLA), Tex. Civ. Prac. & Rem. Code § 74.251(a) (Acts 2003,
78th Leg., ch. 204, § 10.01, eff. Sept. 1, 2003).
3
protected health information on March 8, 2013, prior to the expiration of the two
year statute of limitations, and filed this cause on May 17, 2013, well within the
statute of limitations as tolled. Appellants’ argument that adequate and timely
notice under TMLA § 74.051(c) did not toll the statute of limitations for seventy-
five days (due to the unconstitutionality 74.251(a) as applied to minors and the
operation of Texas Civil Practice and Remedies Code section 16.003, as tolled by
section 16.001 in its place) lacks any support and is an attempt to create a trap for
the unwary who, heaven forfend, merely follow the letter of TMLA § 74.051(c).
ARGUMENT AND AUTHORITIES
I. The Court Should Affirm the Trial Court’s Order.
A. Standard of Review
An appellate court reviews the grant or denial of a motion for summary
judgment de novo. Safeco Lloyds Ins. Co. v. Allstate Ins. Co., 308 S.W.3d 49, 52,
(Tex. App.—San Antonio 2009, no pet.).
B. Gabriella Lopez’s Cause Was Timely Filed.
1. Thirty Years of Precedent Support the Trial Court
Holding § 74.251(a) Facially Unconstitutional.
Thirty years of precedent from the Texas Supreme Court and this Court of
Appeals demonstrates that the statute of limitations provision for minors in section
4
74.251(a) of the Texas Medical Liability Act (TMLA)2 is facially unconstitutional,
yet Appellants argue otherwise. Because the Appellants’ argument is
unsupportable, it should be rejected.
The TMLA limitations provision, Section 74.251(a), provides:
Notwithstanding any other law and subject to Subsection (b), no
health care liability claim may be commenced unless the action is
filed within two years from the occurrence of the breach or tort or
from the date the medical or health care treatment that is the subject of
the claim or the hospitalization for which the claim is made is
completed; provided that, minors under the age of 12 years shall have
until their 14th birthday in which to file, or have filed on their behalf,
the claim. Except as herein provided this section applies to all persons
regardless of minority or other legal disability.
Tex. Civ. Prac. & Rem. Code § 74.251(a) (emphases added). The
predecessor statute to the TMLA, the Texas Medical Liability and Insurance
Improvement Act (TMLIIA), Texas Revised Civil Statutes article 4590i,
section 10.01(a),3 included identical language to that contained in the
TMLA section 74.251(a). TMLIIA section 10.01(a), provided:
Notwithstanding any other law, no health care liability claim may be
commenced unless the action is filed within two years from the
occurrence of the breach or tort or from the date the medical or health
care treatment that is the subject of the claim or the hospitalization for
which the claim is made is completed; provided that, minors under the
2
Texas Medical Liability Act (TMLA), Tex. Civ. Prac. & Rem. Code § 74.251(a) (Acts 2003,
78th Leg., ch. 204, § 10.01, eff. Sept. 1, 2003).
3
Texas Medical Liability and Insurance Improvement Act (TMLIIA), Tex. Rev. Civ. Stat. art.
4590i § 10.01(a) (Acts, 65th Leg., p. 2039, ch. 817, Part 1, eff. Aug. 29, 1977) (Repealed by Acts
2003, 78th Leg., ch. 204, § 10.09, eff. Sept. 1, 2003).
5
age of 12 years shall have until their 14th birthday in which to file, or
have filed on their behalf, the claim. Except as herein provided, this
subchapter applies to all persons regardless of minority or other legal
disability.
TMLIIA, Tex. Rev. Civ. Stat. art. 4590i § 10.01(a) (emphases added). The Texas
Supreme Court held Section 10.01(a) of the TMLIIA “unconstitutional as applied
to minors” because a minor cannot sue on her own behalf until she reaches
majority; therefore, section 10.01(a) violates article I section 13 of the Texas
Constitution. Weiner v. Wasson, 900 S.W.2d 316, 318-21 (Tex. 1995) (emphases
added).
Before the Texas Supreme Court held TMLIIA section 10.01(a) to be
unconstitutional, it found section 10.01(a)’s predecessor statute, Texas Insurance
Code Art. 5.82, section 4 unconstitutional as applied to minors for the same
reason. Sax v. Votteler, 648 S.W.2d 661, 667 (Tex. 1983).4 Significantly, the
Weiner Court found this provision facially unconstitutional, and refused to limit
Sax to an “‘as applied’ or case-by-case basis” or to “somehow limit the holding of
[Sax] to its facts.” Weiner, 900 S.W.2d at 320. Instead, it has come to stand for the
larger premise that “the Legislature has no power to make a remedy contingent
4
Article 5.82 established a two-year statute of limitations, except that children under the age of 6
were granted until their 8th birthday in which to file a claim. Tex. Ins. Code Art. 5.82, § 4. In
Weiner, the Texas Supreme Court noted that § 10.01 and its predecessor, Article 5.82, were
substantially the same. Weiner v. Wasson, 900 S.W.2d at 318.
6
upon an impossible condition.” Id. at 319. The Weiner Court further stated that
“undeniably, Sax has become firmly ensconced in Texas jurisprudence.” Id. at 320.
In Adams v. Gottwald, 179 S.W.3d 101, 103 (Tex. App.—San Antonio
2005, pet. denied), this Court of Appeals held that TMLA section 74.251 is
unconstitutional as applied to minors under the open courts provision of article I,
section 13 of the Texas Constitution. The Court compared the language of TMLA
§ 74.251(a) with the language of TMLIIA § 10.01(a), and deemed them “virtually
identical.” Id. The Adams Court concluded that it was “bound by Sax and
Weiner.” Id. at 103.
Given the precedent of the Texas Supreme Court and this Court, the law is
well-settled regarding the unconstitutionality of section 74.251(a) as applied to
minors. The Appellants’ argument that the Texas Supreme Court has not ruled on
section 74.251(a) fails because the language of TMLA § 74.251(a) and the
language in TMLIIA § 10.01(a) that the Weiner Court found unconstitutional is—
in the words of this Court—“virtually identical.” Id. Furthermore, as much as the
Appellants might wish otherwise, the holding in Adams is binding authority in the
Fourth Court of Appeals.
Next, the Appellants contend that the Texas Legislature “undertook a major
overhaul of medical malpractice law in 2003,” i.e., when it enacted the TMLA to
replace the TMLIIA, but explain that the Legislature purposefully ignored Weiner
7
in enacting the same statute of limitations for minors in the TMLA that had
previously existed and had been ruled unconstitutional in Weiner, namely that
“minors under the age of 12 years shall have until their 14th birthday in which to
file, or have filed on their behalf, the claim.” (Appellants’ Brief at 16,18). Taken
as true, the Legislature may have chosen to ignore Weiner, but the Legislature
cannot render the language of TMLA § 74.251(a) constitutional, when it is
“virtually identical” to the language in TMLIIA § 10.01(a) that the Weiner Court
found facially unconstitutional as violative of article I section 13 of the Texas
Constitution. Id.5
As explained in Weiner, 900 S.W.2d at 318-21, and Adams, 179 S.W.3d at
103, because Gabriela Lopez could not sue on her own behalf until she reached
majority, TMLA § 74.251(a) violates article I section 13 of the Texas Constitution.
Appellants contend (for the first time) that it is Gabriela Lopez’s burden to
demonstrate that TMLA § 74.251(a) is an unreasonable exercise of the police
power in the interest of the general welfare, citing the recent decision Tenet Hosps.
Ltd. v. Rivera, 445 S.W.3d 698 (Tex. 2014). Significantly, the Rivera Court
expressly distinguished itself from Sax and Weiner as (a) concerning TMLA
5
Indeed, it is unclear why Appellants repeatedly refer to “wholesale revisions to Texas medical
malpractice law in 2003” as though it would alter the Court’s consideration of § 74.251(a),
where that language remains unchanged from its predecessor statute. (See, e.g., Brief of
Appellants at 18-19).
8
section 74.251(b), a ten year statute of repose that is not limited to minors, and (b)
explaining that Sax and Weiner considered statutes of limitations provisions that
were expressly applied to minors, which were facially unconstitutional, whereas
the challenge to the statute of repose in Rivera was an as-applied attack. Id. at 706.
It is worth noting, moreover, that the Sax Court engaged in the police power
analysis and weighed many of the same arguments raised by the 2003 Legislature.
Sax, 648 S.W.2d at 666.6 Ultimately, the Sax Court concluded that while “both the
purpose and basis for article 5.82 are legitimate” and the “length of time that
insureds are exposed to potential liability has a bearing on the rates that insurers
must charge . . . . [w]e cannot agree, however, that the means used by the
legislature to achieve this purpose, article 5.82, section 4, are reasonable when they
are weighed against the effective abrogation of a child’s right to redress.” Sax , 648
S.W.2d at 667.
6
The Court summarized:
Specifically, the legislation’s proponents argued that the number and amount of
health care claims had increased to the point that it was indirectly affecting the
availability and quality of health care. This effect was due to the higher costs of
medical malpractice insurance and its unavailability. The general purpose of the
statute, therefore, was to provide an insurance rate structure that would enable
health care providers to secure liability insurance and thereby provide
compensation for their patients who might have legitimate malpractice claims.
The specific purpose of the provision in question was to limit the length of time
that the insureds would be exposed to potential liability.
Sax, 648 S.W.2d at 666.
9
Finally, Appellants’ assertions that Gabriela Lopez’s cause should be treated
differently from Adams and Weiner even though Gabriela Lopez was a minor at the
time of her medical and/or health care treatment because “Adams involved a claim
filed by the plaintiff’s parents well before the child’s 20th birthday, and no other
Texas appellate court has considered whether section 74.251(a) is unconstitutional
as applied to all minors, or under the facts of this case” impermissibly attempts to
limit Appellee Gabriela Lopez’s constitutional challenge to an “‘as applied’ or
case-by-case basis” something the Texas Supreme Court flatly rejected. Weiner,
900 S.W.2d at 320. There is no individual burden,7 and Appellants cannot create
one out of whole cloth, in direct contradiction of Texas Supreme Court precedent.
Appellants can attempt to cloud the issue, but Weiner, Sax, and Adams are
clear: TMLA § 74.251(a) and its predecessors are facially unconstitutional as
applied to minors under the open courts provision of article I, section 13 of the
Texas Constitution because a minor cannot sue on his or her own behalf until
reaching the age of majority. Weiner, 900 S.W.2d at 318-21, Sax, 648 S.W.2d at
667, Adams, 179 S.W.3d at 103. Appellants cite no authority contrary to Weiner,
Sax, or Adams. Indeed, there is no authority which holds TMLA § 74.251(a)’s
limitations provisions for minors (or its predecessors) constitutional.
7
See id. “We fail to see any benefit in requiring a minor to show that his or her parent was
incompetent or failed to act in the minor’s best interests by not pursuing a medical malpractice
claim, especially when the very failure of the parent to do so leaves the minor without any legal
recourse.”
10
2. The Statute of Limitations Applicable to Gabriela
Lopez’s Cause is Texas Civil Practice and Remedies
Code § 16.003, as Tolled by § 16.001.
The Texas Supreme Court in Weiner v. Wasson held that the limitations
period that applies to minors’ health care liability claims under former TMLIIA §
10.01 is set forth in Texas Civil Practice and Remedies Code sections 16.001 and
16.003, which “together provide a general statute of limitations for minors’
personal injury claims.” Weiner, 900 S.W.2d at 321. (citing Sax, 648 S.W.2d at
663) (noting “these provisions date back to at least 1911”). As the Supreme Court
explained, “Section 16.003 establishes a two-year limitations period, but section
16.001 tolls this period until the minor reaches age eighteen.” Weiner, 900 S.W.2d
at 321. Specifically, section 16.001 provides, “a person is under a legal disability
if the person is: [] younger than 18 years of age.” Tex. Civ. Prac. & Rem. Code §
16.001(a)(1). “If a person entitled to bring a personal action is under a legal
disability when the cause of action accrues, the time of the disability is not
included in a limitations period.” Id. § 16.001(b). Accordingly, the Texas Supreme
Court stated, “we conclude that the limitations period provided by the general
tolling and limitations provisions of Texas Civil Practice and Remedies Code
sections 16.001 and 16.003 apply to [the plaintiff’s] claim.” Weiner, 900 S.W.2d at
321.
11
Because it is undisputed that Gabriela Lopez was a minor at the time at the
time of the health care which is the basis of her claims in this cause, Gabriela
Lopez could not sue on her own behalf until she reached majority. Accordingly,
TMLA § 74.251(a) violates article I section 13 of the Texas Constitution, and
Texas Civil Practice and Remedies Code sections 16.001 and 16.003 apply to her
claim. Id.
3. Gabriela Lopez’s Notice of Health Care Liability Claim Tolls the
Applicable Statute of Limitations for 75 Days.
The presuit notice provision of the Texas Medical Liability Act (TMLA),
Texas Civil Practice and Remedies Code section 74.051(a), provides that
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.
Timely notice provided under TMLA § 74.051(a) tolls “the applicable
statute of limitations.” TMLA § 74.051(c) provides that
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.
(emphases added). Nowhere does section 74.051(c) limit its application to only
claims brought within the TMLA’s § 74.251(a) limitations provision, as Appellants
12
ask this Court to hold. Indeed, such a limitation would not only be without basis in
the language of the statute but also in the Supreme Court’s analysis of its
legislative history.8 The Texas Supreme Court has, on multiple occasions,
explained “the purpose of the [presuit] notice provision,” “is to encourage
negotiations and settlement of disputes prior to suit, thereby reducing litigation
costs.” Jose Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 68, 72-73 (Tex.
2011) (citing Garcia v. Gomez, 319 S.W.3d 638, 643 (Tex. 2010)). The Carreras
Court expounded that “by requiring a potential claimant to authorize the disclosure
of otherwise privileged information sixty days before suit is filed, the statute
[would] provide[] an opportunity for health care providers to investigate claims
and possibly settle those with merit at an early stage.” Id. at 73 (quoting In re
Collins, 286 S.W.3d 911, 916-17 (Tex. 2009)); see also Schepps v. Presbyterian
Hosp. of Dallas, 652 S.W.2d 934, 938 (Tex. 1983) (interpreting the predecessor
notice provision, TMLIIA § 4.01) (“The intent of the Keeton Commission and the
Legislature was to encourage pre-suit negotiations so as to avoid excessive cost of
litigation.”).
8
Jose Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 68, 72-73 (Tex. 2011) (explaining that the
Legislature originally introduced the 60-day notice requirement provision TMLIIA in 1977 65th
Leg., R.S., ch. 817, § 4.01, 1977 Tex. Gen. Laws 2039, 2047-48, repealed by Act of June 2,
2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884).
13
It is undisputed that Gabriela Lopez’s claims are health care liability claims.
It is undisputed that under the TMLA, Gabriela Lopez must provide at least 60-
days’ notice of claim before filing of a suit based upon a health care liability claim.
Tex. Civ. Prac. & Rem. Code § 74.051(a). It is undisputed that Gabriela Lopez
complied with TMLA § 74.051’s 60-day presuit notice requirement. It cannot be
disputed that the notice statute provides as follows: “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 does not limit the “applicable
statute of limitations” to TMLA § 74.251(a). Tex. Civ. Prac. & Rem. Code at
§74.051(c) (emphasis added).
Rather than look to the Supreme Court’s analysis of the legislative history of
the purpose of the presuit notice provision, Appellants attempt to read the minds of
legislators to limit the universe of the undefined term “applicable statute of
limitations.” While it may be true that Sax and Weiner had not been decided in
1977, they had certainly been decided when the TMLA was enacted in 2003. If
the Legislature were so intent on restricting the “applicable statute of limitations”
to TMLA § 74.251(a) as Appellants contend, they certainly could have done so in
2003, when they were well aware of Sax and Weiner, and according to Appellants,
were purposefully ignoring Weiner in leaving the language of TMLA § 74.251(a)
unchanged. (Brief of Appellants at 16,18).
14
Appellants cite no reason why the purpose of the presuit notice statute would
or should be any different for Gabriela Lopez than it is for any other potential
claimant. But rather than utilize the 60-day presuit notice provision and its
concomitant 75-day tolling provision to “investigate” and “encourage negotiations
and settlement of disputes prior to suit, thereby reducing litigation costs,”
Carreras, 339 S.W.3d 72-73 (citing Garcia, 319 S.W.3d at 643; In re Collins, 286
S.W.3d at 916-17), Appellants have instead chosen to attack Appellee Gabriela
Lopez for having followed Supreme Court and San Antonio Court of Appeals
precedent and abided by the provisions of TMLA §§ 74.051-74.052.
Indeed, it is well-settled in Texas that pursuant to TMLA § 74.051(c), a
notice of health care liability claim and authorization form served in accordance
with section 74.051(a) tolls the running of the applicable statute of limitations for
seventy-five days. See, e.g., Rabatin v. Kidd, 281 S.W.3d 558, 562 (Tex. App.—El
Paso 2008, no pet.) (where notice of claim and authorization form were served
prior to the second anniversary of the medical treatment that was the subject of the
claim, plaintiff’s petition, filed two years and seventy-five days after the treatment,
was timely); Mock v. Presbyterian Hosp., 379 S.W.3d 391, 392, 394 (Tex. App.—
Dallas 2012, pet. denied) (where notice of claim and authorization form were
served prior to the second anniversary of the medical treatment that was the subject
of the claim, plaintiff’s petition, filed two years and sixty-nine days after the
15
treatment, was timely); Tejada v. Gernale, 363 S.W.3d 699, 703-08 (Tex. App.—
Houston [1st Dist.] 2011, no pet.) (where notice of claim and authorization form
were served one day prior to the second anniversary of the medical treatment that
was the subject of the claim, plaintiff’s petition, filed two years and seventy-four
days after the treatment, was timely). Accord De Romo v. St. Mary of Plains Hosp.
Found., 843 S.W.2d 72, 75 (Tex. App.—Amarillo 1992, writ denied) (under the
predecessor statute to the TMLA, Tex. Rev. Civ. Stat. art. 4590i, § 10.01, notice of
a claim served within the two-year limitations period “tolled the statute of
limitations for seventy-five days, effectively crating a two year and seventy-five
day statute of limitations.”); Karley v. Bell, 24 S.W.3d 516, 519 (Tex. App.—Fort
Worth 2000, pet. denied) (“Notice given in accordance with section 4.01(a) [the
TMLIIA predecessor to TMLA § 74.051(c)] tolls the applicable statute of
limitations for seventy-five days, effectively creating a two-year-and-seventy-five-
day statute of limitations”).
Because Appellee Gabriela Lopez was a minor at the time her health care
liability claim arose, “the limitations period provided by the general tolling and
limitations provisions of Texas Civil Practice and Remedies Code sections 16.001
and 16.003 apply to [her] claim.” Weiner, 900 S.W.2d at 321. The two year
statute of limitations under section 16.003 started to run on her eighteenth birthday,
March 11, 2011. Appellee Lopez served a notice of her claim, accompanied by the
16
authorization for release of protected health information in accordance with TMLA
§ 74.051(a), on March 8, 2013, prior to the expiration of the two year statute of
limitations. Appellants do not dispute that the notice and authorization forms
complied with TMLA § 74.051(a) and were served prior to Appellee Gabriela
Lopez’s twentieth birthday. Due to her service of a notice of claim and
authorization form prior to the expiration of two years, TMLA §§ 74.051(c) and
74.052 tolled Appellee Gabriela Lopez’s limitations until May 22, 2013 (i.e., two
years and seventy-five days after her eighteenth birthday). Carreras, 339 S.W.3d
at 74. Appellee Gabriela Lopez filed this cause on May 17, 2013, well within the
statute of limitations as tolled. Id.; Mock, 379 S.W.3d at 392, 394.
Appellants’ argument that adequate and timely notice under TMLA §
74.051(c) did not toll the statute of limitations for seventy-five days is entirely
without merit. Appellants cite one case for the proposition that the statute of
limitations applicable to Gabriela Lopez’s claim expired on her twentieth birthday
and could not be subject to any further tolling: Medina v. Lopez Roman, 49 S.W.3d
393 (Tex. App.—Austin, 2000, pet. denied). The plaintiff in Medina, who was a
minor when his claim arose, filed suit on his twentieth birthday, within the
standard two year statute of limitations. 49 S.W.3d at 399. Therefore, the Court
never reached the question of whether the notice of claim served by the plaintiff
tolled the statute of limitations – the question was unnecessary and irrelevant to the
17
Court’s opinion. The Medina Court’s silence regarding the effect of a notice of
claim does not carry any authoritative value whatsoever. See, e.g., Texas Indus.
Traffic League v. Railroad Comm’n of Tex., 628 S.W.2d 187, 208 (Tex. App.—
Austin 1982), rev’d on other grounds, 633 S.W.2d 821 (Tex. 1982) (rejecting
appellants’ argument that silence by the Texas Supreme Court on an issue which
the Court could have decided was “tantamount to an affirmative declaration and
holding on the legal rule,” explaining that “[w]e are, in fact, requested [by
appellants] to infer from the Supreme Court’s silence in those three decisions the
promulgation of a legal rule, principle or proposition to the effect argued for by
appellants. We find this contention extremely illogical, and reject it.”) (emphasis
added). Courts in Texas are expected to exercise “judicial restraint.” VanDevender
v. Woods, 222 S.W.3d 430 (Tex. 2006) (“the cardinal principle of judicial restraint
– if it is not necessary to decide more, it is not necessary to decide more – counsels
us to go no further”). The Medina Court’s exercise of judicial restraint cannot be
interpreted as an affirmative ruling.
The language of TMLA § 74.051(c) and the weight of authority support a
conclusion that a notice of health care liability claim and authorization form served
in accordance with section 74.051(a) tolled Appellee Gabriela Lopez’s limitations
for seventy-five days, regardless of whether to TMLA § 74.251(a) or Civil Practice
and Remedies Code sections 16.001 and 16.003 applied to her claims. To find
18
otherwise, as Appellants ask this Court to do, is to create a trap for the unwary that
is nowhere apparent—not in case law, and certainly not in the letter of the TMLA.
To follow the Appellants lead, unsuspecting minor plaintiffs, who, like Gabriela
Lopez, do nothing but follow the pre-suit notice provision in TMLA § 74.051(c),
would lose their day in court to a nowhere-noticed, unannounced, unlegislated
technicality which, unlike the 60-day pre-suit notice provision, serves no valid
purpose whatsoever. Appellee Lopez has already suffered a grievous physical
injury at the hands of Appellants. Appellants should not be allowed to now, ex
post facto, change the application of TMLA § 74.051(c) to deprive her of her day
in court.
CONCLUSION
It is undisputed that Gabriela Lopez was a minor at the time of the health
care made the basis of her claims in this cause, and thirty years of precedent in the
Texas Supreme Court and the San Antonio Court of Appeals holds the language in
section 74.251(a) and its predecessor statutes unconstitutional as applied to minors.
Accordingly, the trial court correctly concluded that TMLA § 74.251(a) is facially
unconstitutional and violates Texas Constitution article I, § 13’s Open Courts
provision and correctly determined that Texas Civil Practice and Remedies Code
§§ 16.001 and 16.003 govern limitations as to Gabriela Lopez’s health care
liability claims.
19
It is undisputed that (i) Gabriela Lopez’s claim is a health care liability
claim, which, by statute, requires presuit notice; (ii) Gabriela Lopez complied with
TMLA’s section 74.051’s 60-day presuit notice requirement; (iii) the statute states:
“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 does not limit the “applicable statute of limitations” to TMLA 74.251(a); and
(iv) the purpose of the 60-day notice and concomitant 75-day tolling provision is to
encourage investigation of claims, negotiation, and settlement. Thus, the trial court
did not err in concluding that TMLA § 74.051(c) applies to further toll limitations
under Texas Civil Practice and Remedies Code §§ 16.001 and 16.003 for Gabriela
Lopez’s health care liability claim, for a period of 75 days following her giving of
notice and authorization for release of protected health information to Appellants
on March 8, 2013, which was prior to the expiration of the applicable two-year
statute of limitations. As applied, TMLA §§ 74.051(c) and 74.052 tolled Gabriela
Lopez’s health care liability claim until May 22, 2013. Because Gabriela Lopez
filed her health care liability claim lawsuit on May 17, 2013, the applicable statute
of limitations does not bar her health care liability claim against Appellants.
20
PRAYER
WHEREFORE, Appellee respectfully requests that the Court affirm the trial
court’s order denying Appellants’ motions for summary judgment, and that the
Court grant such other relief as to which Appellee may be justly entitled.
RESPECTFULLY SUBMITTED,
K E I T H L A W F I R M, P. C.
301 Commerce Street, Suite 2850
Fort Worth, Texas 76102
T. 817.338.1400
F. 817. 870.2448
By: /s/ Darrell Keith
Darrell Lee Keith, Attorney-in-Charge
SBOT No. 11186000
dkeith@keithlaw.com
Laura A. Russell
SBOT No. 24046777
lrussell@keithlaw.com
ATTORNEYS FOR APPELLEE
GABRIELA LOPEZ
21
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Microsoft
Word 2010 and contains 5446 words, as determined by the computer software’s
word-count function, excluding sections of the document listed in Texas Rule of
Appellate Procedure 9.4(i)(1).
By: /s/ Darrell Keith
Darrell Lee Keith
22
CERTIFICATE OF SERVICE
I certify that on March 3, 2015, I served a true and correct copy of the
foregoing Amended Brief of Appellee by electronic service upon all counsel of
record for the Appellants.
By: /s/ Darrell Keith
Darrell Lee Keith
Diana L. Faust VIA ELECTRONIC SERVICE
R. Brent Cooper
Kyle M. Burke
Cooper & Scully, P.C.
900 Jackson St., Suite 100
Dallas, Texas 75202
Appellate Counsel for Appellants
Juan Francisco Montalvo,
M.D., Miguel E. Najera,
J.D., Executor of Estate Of
Miguel E. Najera, M.D.,
Deceased, Winder N. Vasquez,
M.D., Laredo Regional
Medical Center, L.P. d/b/a
Doctors Hospital of Laredo
Mr. James Kevin Oncken VIA ELECTRONIC SERVICE
kevin@unolaw.com
Mr. Roger A. Berger
rberger@uzickoncken.com
Uzick & Oncken, P.C.
238 Westcott Street
Houston, Texas 77007
Trial Counsel for Appellant
Juan Francisco Montalvo, M.D.
23
Mr. W. Richard Wagner VIA ELECTRONIC SERVICE
rwagner@wagnercario.com
Mr. Peter Cario
pcario@wagnercario.com
Wagner Cario, L.L.P
7718 Broadway, Suite 100
San Antonio, Texas 78209
Trial Counsel for Appellant
Miguel E. Najera, J.D., Executor
of Estate Of Miguel E. Najera,
M.D., Deceased
Mr. Steven M. Gonzalez VIA ELECTRONIC SERVICE
Mr. Edward J. Castillo
ecastillo@valleyfirm.com
Gonzalez Castillo, LLP
1317 E. Quebec Avenue
McAllen, Texas 78503
Trial Counsel for Appellant
Laredo Regional Medical
Center, L.P. d/b/a Doctors
Hospital of Laredo
Mr. Bruce E. Anderson VIA ELECTRONIC SERVICE
banderson@brinandbrin.com
Mr. James W. Veale, Jr.
jveale@brinandbrin.com
Ms. Lorien L. Whyte
lwhyte@brinandbrin.com
Brin & Brin, P.C.
6223 IH 10 West
San Antonio, Texas 78201
Trial Counsel for Appellant
Winder N. Vasquez, M.D.
24