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

ACCEPTED
01-15-00350-cv
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/3/2015 2:27:01 PM
CHRISTOPHER PRINE
CLERK

ORAL ARGUMENT REQUESTED
NO. 01-15-00350-CV
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
IN THE COURT OF APPEALS 12/3/2015 2:27:01 PM
FOR THE FIRST DISTRICT OF TEXASCHRISTOPHER A. PRINE
Clerk
AT HOUSTON, TEXAS

SHAN KOVALY,
Appellant,
v.
TULSIDAS KURUVANKA, M.D., ET AL. AND
IKEDINOBI U. ENI, M.D., ET AL.,
Appellees.

On Appeal from the 113th District Court
Harris, County, Texas, Cause No. 2014-66001
(Hon. Michael Landrum)

BRIEF OF APPELLEES IKEDINOBI U. ENI, M.D., IKEDINOBI U. ENI,
M.D., P.A., AND ENI HEALTH CARE

Respectfully submitted,
COOPER & SCULLY, P.C. SPROTT NEWSOM
QUATTLEBAUM, MESSENGER
DIANA L. FAUST JOEL RANDAL SPROTT
diana.faust@cooperscully.com sprott@sprottnewsom.com
Texas Bar No. 00793717 Texas Bar No. 18971580
KYLE M. BURKE
kyle.burke@cooperscully.com
Texas Bar No. 24073089
900 Jackson, Suite 100 221 Norfolk, Suite 1150
Dallas, Texas 75202 Houston, Texas 77098
Telephone: (214) 712-9500 Telephone: (713) 523-8338
Facsimile: (214) 712-9540 Facsimile: (713) 523-9422

ATTORNEYS FOR APPELLEES
 NO. 01-15-00350-CV

IN THE COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS
AT HOUSTON, TEXAS

SHAN KOVALY,
Appellant,
v.
TULSIDAS KURUVANKA, M.D., ET AL. AND
IKEDINOBI U. ENI, M.D., ET AL.,
Appellees.

On Appeal from the 113th District Court
Harris, County, Texas, Cause No. 2014-66001
(Hon. Michael Landrum)

IDENTITY OF PARTIES AND COUNSEL

In accordance with rule 38.1(a) of the Texas Rules of Appellate Procedure,

the following is a list of names and addresses of the parties to the trial court’s

judgment and their counsel:

Appellant: Shan Kovaly

Trial Counsel
For Appellant: Steven R. Davis
Davis & Davis
440 Louisiana, Suite 1850
Houston, Texas 77002

i
Appellate Counsel
for Appellant: Ian Simpson
Simpson, P.C.
1333 Heights Boulevard
Houston, Texas 77008

Steven R. Davis
Davis & Davis
440 Louisiana, Suite 1850
Houston, Texas 77002

Appellees: Ikedinobi U. Eni, M.D., Ikedinobi U.
Eni, M.D., P.A., and Eni Health Care

Trial Counsel
for Appellees: Joel Randal Sprott
Erin E. Lunceford
Sprott Newsom Quattlebaum
Messenger
2211 Norfolk, Suite 1150
Houston, Texas 77098

Appellate Counsel
for Appellees: Diana L. Faust
Kyle M. Burke
Cooper & Scully, P.C.
900 Jackson Street, Suite 100
Dallas, Texas 75202

Joel Randal Sprott
Sprott Newsom Quattlebaum
Messenger
2211 Norfolk, Suite 1150
Houston, Texas 77098

Appellees: Tulsidas S. Kuruvanka, M.D., and
Northwest Houston Cardiology, P.A.

ii
Trial and Appellate
Counsel for Appellees: James B. Edwards
Stacy T. Garcia
Edwards & Associates
12603 Southwest Freeway, Suite 200
Stafford, Texas 77477

iii
 NO. 01-15-00350-CV

IN THE COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS
AT HOUSTON, TEXAS

SHAN KOVALY,
Appellant,
v.
TULSIDAS KURUVANKA, M.D., ET AL. AND
IKEDINOBI U. ENI, M.D., ET AL.,
Appellees.

On Appeal from the 113th District Court
Harris, County, Texas, Cause No. 2014-66001
(Hon. Michael Landrum)

STATEMENT REGARDING ORAL ARGUMENT

Appellees Ikedinobi U. Eni, M.D., Ikedinobi U. Eni, M.D., P.A., and Eni

Health Care respectfully request oral argument in this case and believe it will help

the Court in evaluating the case and resolving the appeal. TEX. R. APP. P. 39.1,

39.7.

iv
 TABLE OF CONTENTS

Page

IDENTITY OF PARTIES AND COUNSEL .......................................................... i

STATEMENT REGARDING ORAL ARGUMENT ............................................ iv

TABLE OF CONTENTS........................................................................................v

TABLE OF AUTHORITIES ............................................................................... vii

RESPONSIVE ISSUES PRESENTED ............................................................... xiii

STATEMENT OF FACTS .....................................................................................1

A. Appellant’s Allegations ......................................................................1

B. Theories of Liability ...........................................................................3

C. Appellees File Motions for Summary Judgment .................................4

D. Proceedings After Trial Court Granted Appellees’ Motions for
Summary Judgment ............................................................................5

SUMMARY OF THE ARGUMENT ......................................................................6

ARGUMENT AND AUTHORITIES .....................................................................8

I. Trial Court Correctly Granted Appellees’ Motion for Summary
Judgment Because the Statute of Limitations Bars Appellant’s Claims.........8

A. Standard of Review.............................................................................8

B. Appellant’s Claims Are Barred by the Statute of Limitations in
Section 74.251(a)................................................................................9

C. Appellant Not Entitled To Toll Limitations in Absence of
Proper Pre-suit Notice with Medical Authorization...........................11

1. Medical Authorization Must Accompany Pre-suit Notice
To Trigger Tolling Period .......................................................11

v
 2. Appellant’s Case Law Does Not Provide Support...................17

D. Appellant’s Procedural Tactics Undermine Legislative Intent...........23

CONCLUSION AND PRAYER...........................................................................28

CERTIFICATE OF COMPLIANCE ....................................................................31

CERTIFICATE OF SERVICE..............................................................................32

APPENDIX TO BRIEF OF APPELLEES IKEDINOBI U. ENI, M.D.,
IKEDINOBI U. ENI, M.D., P.A., AND ENI HEALTH CARE.............................33

vi
 TABLE OF AUTHORITIES

Case Page(s)

Brannan v. Toland,
No. 01–13–00051–CV, 2013 WL 4004472
(Tex. App.—Houston [1st Dist.] Aug. 6, 2013, pet. denied) (mem.op.) ......12, 20

City of San Antonio v. Hernandez,
53 S.W.3d 404 (Tex. App.—San Antonio 2001, pet. denied).........................8, 9

College Station Medical Center v. Kilaspa,
No. 10-14-00374-CV, 2015 WL 4504361
(Tex. App.—Waco Jul. 23, 2015, pet. filed)................................................26, 27

De Checa v. Diagnostic Center Hosp., Inc.,
967 F.2d 126 (5th Cir. 1992)............................................................................ 18

De Checa v. Diagnostic Center Hosp., Inc.,
852 S.W.2d 935 (Tex. 1993) .................................................................17, 20, 21

EXLP Leasing, LLC v. Galveston Cent. Appraisal Dist.,
No. 14-14-00268-CV, 2015 WL 5025534
(Tex. App.—Houston [14th Dist.] Aug. 25, 2015, pet. filed) ........................... 21

Helena Chem. Co. v. Wilkins,
47 S.W.3d 486 (Tex. 2001).........................................................................12, 15

In re Collins,
286 S.W.3d 911 (Tex. 2009) ............................................................................ 23

Jose Carreras, M.D., P.A. v. Marroquin,
339 S.W.3d 68 (Tex. 2011)............................................ 12-17, 19, 20, 22, 23, 25

Kimbrell v. Molinet,
288 S.W.3d 464 (Tex. App.—San Antonio 2008), aff'd,
356 S.W.3d 407 (Tex. 2011) ............................................................................ 10

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844 (Tex. 2009) .............................................................................. 8

vii
Mitchell v. Methodist Hosp.,
376 S.W.3d 833 (Tex. App.—Houston [1st Dist.] 2012, pet. denied)....13, 20, 26

Nolan v. Hughes,
349 S.W.3d 209 (Tex. App.—Dallas 2011, no pet.) ........................................... 9

Parrish v. Brooks,
856 S.W.2d 522 (Tex. App.—Texarkana 1993, no writ) .................................. 21

Rabatin v. Vazquez,
281 S.W.3d 563 (Tex. App.—El Paso 2008, no pet.) ....................................... 22

Safeco Lloyds Ins. Co. v. Allstate Ins. Co.,
308 S.W.3d 49 (Tex. App.—San Antonio 2009, no pet.) ................................... 8

Sewell v. Adams,
854 S.W.2d 257 (Tex. App.—Houston [14th Dist.] 1993, no writ) .................. 22

Shah v. Moss,
67 S.W.3d 836 (Tex. 2001)...........................................................................8, 10

Tex. Dept. of Transp. v. City of Sunset Valley,
146 S.W.3d 637 (Tex. 2004) ............................................................................ 21

Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex.,
253 S.W.3d 184 (Tex. 2007) .............................................................................. 8

Thompson v. Community Health Inv.,
923 S.W.2d 569 (Tex. 1996) ............................................................................ 21

Zweig v. S. Texas Cardiothoracic & Vascular Surgical Associates, PLLC,
373 S.W.3d 605 (Tex. App.—San Antonio 2012, no pet.) ............................... 10

Statutes Page(s)

TEX. CIV. PRAC. & REM. CODE § 74.051(a) ...............................................11, 16, 19

TEX. CIV. PRAC. & REM. CODE § 74.051(c) .......................................................... 13

TEX. CIV. PRAC. & REM. CODE § 74.052 .............................................................. 23

TEX. CIV. PRAC. & REM. CODE § 74.052(a) .....................................................12, 25

viii
TEX. CIV. PRAC. & REM. CODE § 74.052(c) .....................................................12, 13

TEX. CIV. PRAC. & REM. CODE § 74.251(a) ....................................... 8, 9, 10, 17, 24

TEX. GOV'T CODE § 311.016(3)............................................................................ 15

Rules Page(s)

TEX. R. APP. P. 39.1 .............................................................................................. iv

TEX. R. APP. P. 39.7 .............................................................................................. iv

Other Authorities Page(s)

Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09,
2003 Tex. Gen. Laws 847 ...........................................................................16, 19

Medical Liability and Insurance Improvement Act, 65th Leg., R. S., ch. 817,
§ 4.01, 1977 Tex. Gen. Laws 2039..............................................................16, 19

ix
 NO. 01-15-00350-CV

IN THE COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS
AT HOUSTON, TEXAS

SHAN KOVALY,
Appellant,
v.
TULSIDAS KURUVANKA, M.D., ET AL. AND
IKEDINOBI U. ENI, M.D., ET AL.,
Appellees.

On Appeal from the 113th District Court
Harris, County, Texas, Cause No. 2014-66001
(Hon. Michael Landrum)

BRIEF OF APPELLEES IKEDINOBI U. ENI, M.D., IKEDINOBI U. ENI,
M.D., P.A., AND ENI HEALTH CARE

TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:

Appellees Ikedinobi U. Eni, M.D. (“Dr. Eni”), Ikedinobi U. Eni, M.D., P.A.

(the “P.A.”), and Eni Health Care (“EHC”) (collectively “Appellees”) submit this

Brief of Appellees, in accordance with rules 9.4 and 38 of the Texas Rules of

Appellate Procedure and all local rules of this Court. For the reasons set forth

below, Appellees urge this Court to affirm the trial court’s March 20, 2015 Final

Summary Judgment, awarding summary judgment in favor of Appellees and

against Appellant, and dismissing Appellant’s causes of action.

x
 STATEMENT OF THE CASE

On November 11, 2014, Shan Kovaly (“Mr. Kovaly” or “Appellant”) filed

this health care liability claim against Appellees and Defendants Tulsidas S.

Kuruvanka, M.D. (“Dr. Kuruvanka”), and Northwest Houston Cardiology, P.A.

(“Northwest”), alleging that Appellees were negligent in their care and treatment

of Appellant on or about August 28, 2012 through September 4, 2012. (CR 5-6).1

Appellant asserted negligence and gross negligence claims against Appellees. (CR

6-7).

On February 20, 2015, Appellees filed their Traditional Motion for

Summary Judgment (CR 21-34), followed by Dr. Kuruvanka and Northwest on

February 25, 2015 (CR 35-58), on the grounds that Appellant’s claims are barred

by the statute of limitations. (CR 22-23). Appellant filed a response to the

motions (CR 68-94), Appellees filed their reply to Appellant’s response to their

motion on March 17, 2015 (CR 95), and following a hearing on the motions, the

district court signed a Final Summary Judgment in favor of Appellees, dismissing

Appellant’s causes of action on March 20, 2015. (CR 103). On March 25, 2015,

Appellant filed his Motion for New Trial, in which he argued that the Appellees

failed to carry their summary judgment burden and the trial court’s order was

erroneous due to controlling Texas Supreme Court precedent. (CR 104-05).

1
Appellees will refer to the Clerk’s Record as (CR [page #]), and the Appendix as (Apx.
[Tab #]).

xi
Appellant appealed the trial court’s Final Summary Judgment on April 13, 2015.

(CR 108-109).

xii
 RESPONSIVE ISSUES PRESENTED

1. The trial court correctly granted Appellees’ motion for summary
judgment based on the statute of limitations for health care liability
claims. This issue necessarily includes the following sub-issues:

a. Health care liability claims are governed by the two-year statute
of limitations period in section 74.251(a) of the Texas Civil
Practice and Remedies Code. Appellant’s claims are barred by
the statute of limitations where it is undisputed that the
treatment at issue occurred from August 28, 2012 to September
4, 2012 but Appellant did not file suit until November 11, 2014;

b. A health care liability claimant who fails to provide proper pre-
suit notice of a claim, accompanied by the statutorily-mandated
authorization for release of protected health information, is not
entitled to the seventy-five day tolling period for limitations as
provided in section 74.051 of the Texas Civil Practice and
Remedies Code. Appellant failed to provide Appellees (or any
of the other defendants in this suit) with proper pre-suit notice
accompanied by the authorization for release of protected health
information. Therefore Appellant did not toll limitations,
rendering his suit untimely.

xiii
 STATEMENT OF FACTS

A. Appellant’s Allegations

Appellant alleges that, on or about August 28, 2012, he presented to Houston

Northwest Medical Center with complaints of chest pain. (CR 5). Based on his

presentation, abnormal cardiac biomarker values and lack of ST elevations on his

ECG, it was felt that he was having an NSTEMI2 and he was taken to the cardiac

catheterization lab. (Id.). Coronary angiography revealed stenosis of the proximal

left anterior descending coronary artery (LAD). (Id.). Appellant then underwent

angioplasty and stenting of the LAD with two stents by Dr. Kuruvanka. (Id.).

There were no complications reported with the procedure. (Id.). Following the

cardiac catheterization, Appellant had a transthoracic echocardiogram (TTE)

performed on the afternoon of August 28, 2012, which demonstrated normal left

ventricular function. (Id.). Appellant was discharged from Houston Northwest

Medical Center by Dr. Eni on August 30, 2012 with prescriptions for Lopressor 25

mg twice a day, Pravachol 20 mg at bedtime, aspirin 325 mg daily, Plavix 75 mg

daily and Lisinopril 10 mg twice a day. (Id.). Appellant alleged that neither the

prescribing physician, Dr. Kuruvanka, nor the discharging physician, Dr. Eni,

reviewed the prescription to ensure the quantity of pills to dispense was included in

the prescription before releasing Appellant. (Id.).

2
NSTEMI presumably stands for a Non-ST-elevation myocardial infarction, i.e., a type of
heart attack.

BRIEF OF APPELLEES PAGE 1
 The next morning, Appellant went to a Houston Wal-Mart to fill the

prescription. (CR 5). The pharmacist and pharmacy manager at the Wal-Mart

Pharmacy refused to fill the prescriptions because of the lack of quantity noted on

the prescriptions. (Id.). Both Appellant and the pharmacy personnel tried to reach

Dr. Eni and Dr. Kuruvanka over a period of the next four days, during which time,

Appellant was without his medications which were medically necessary to keep his

newly placed stent from clotting. (Id.).

On September 4, 2012, Appellant was readmitted to Houston Northwest

Medical Center with chest pain and ECG changes consistent with an anterior wall

STEMI. (CR 6). The medical records indicate that Appellant had not been taking

aspirin or Plavix. (Id.). By his report, he was not able to fill the prescriptions

because the number of pills to be dispensed was not included in the prescriptions.

(Id.). Appellant was taken emergently to the cardiac catheterization laboratory

where he was found to have in-stent thrombosis (clotting) of his stents. (Id.). The

clot was removed by thrombectomy and the LAD underwent repeat angioplasty.

(Id.). Blood work during this hospitalization revealed that the peak value for the

cardiac biomarker, troponin, was >80, which is above the limit of detection of the

assay. (Id.). Appellant was discharged from this admission on September 10,

2012. (Id.).

BRIEF OF APPELLEES PAGE 2
 On September 19, 2012, Appellant was admitted to Lyndon B. Johnson

Hospital with new neurologic symptoms and shortness of breath. (CR 6). A CT

scan of the head revealed the presence of an acute/subacute stroke in the right

posterior cerebral artery distribution. (Id.). A review of a TTE reported in a

consultation note on September 21, 2012 indicated that there was thrombus present

in the apex of the heart. (Id.). It was the opinion of the neurology service that the

stroke came from a cardio-embolic source. (Id.).

B. Theories of Liability

On November 11, 2014, Appellant filed his original petition asserting health

care liability claims against the Appellees and others. (CR 3-4).3 Appellant

alleged Dr. Eni and Dr. Kuruvanka breached the applicable standards of care

required for the treatment of Appellant, by failing to write a valid prescription from

the medically necessary drugs, by failing to recognize the purpose and significance

of those medications for cardiac care and that a pharmacist would not fill an

invalid prescription, failing to recognize the significance and potential harm to a

patient who fails to receive medications from an invalid prescription, by failing to

contact the pharmacy or Appellant to correct the invalid prescriptions, and by

3
Appellees object to Appellant’s statement that “On November 11, 2014—273 days after
leaving Dr. Eni’s and Dr. Kuruvanka’s care—Kovaly filed the instant suit.” (Br. at 3). This
statement is misleading and not supported by the record. The treatment at issue here occurred on
or about August 30, 2012 to September 4, 2012. (CR 5-6, 24). Appellant did not file suit against
Appellees until November 11, 2014—at least 798 days (2 years and 68 days) after the
treatment at issue. (CR 3).

BRIEF OF APPELLEES PAGE 3
failing to make sure the prescriptions written and given to a cardiac patient are

valid and can be filled by a pharmacy. (CR 7). Appellant alleged such breaches

were a proximate cause of Appellant’s injuries, and that such conduct by Appellees

was also gross negligence, that Appellees acted willfully and maliciously against

Appellant, and that, as such, Appellant is entitled to punitive or exemplary

damages. (Id.).

C. Appellees File Motions for Summary Judgment

On February 20, 2015, Appellees filed their Traditional Motion for

Summary Judgment (CR 21-34), followed by Dr. Kuruvanka and Northwest (CR

35-59), on the grounds that Appellant’s claims are barred by the statute of

limitations within section 74.251(a) of the Texas Civil Practice and Remedies

Code and because Appellant did not provide the proper notice and authorization

required by the statute, the statute of limitations was not tolled. (CR 22-27).

Appellees asserted that Appellant was required to file his suit on or before

September 4, 2014, but that Appellant filed his Original Petition on November 11,

2014, well past the two-year limitations period, thus, the applicable statute of

limitations in this case barred Appellant’s suit. (Id.).

On March 12, 2015, Appellant responded to Appellees’ motions for

summary judgment, asserting that pre-suit notice and authorization sent on July 23,

2013 to Wal-Mart Stores Texas, LLC in a prior suit was effective to toll the

limitations period for seventy-five days as to Wal-Mart and all other potential
BRIEF OF APPELLEES PAGE 4
parties, including Appellees. (CR 68-80). Appellant thus claimed that after

tolling, the limitations period ended November 13, 2014, making his November 11,

2013 suit timely. (CR 77-78).

Appellees replied on March 17, 2015, generally arguing that Appellant never

provided a notice or a medical authorization to Appellees in the present case and

instead, relied on the notice and authorization provided to Wal-Mart in the Wal-

Mart federal case, which authorization did not provide the Appellees in this case

with authority to obtain protected health information pursuant to section

74.052(c)(A) of the Texas Civil Practice and Remedies Code. (CR 96). As such,

the authorization did not comply with the statutory requirements and, accordingly,

Appellant’s “notice” did not serve to toll the limitations period as to Appellees in

the present case. (Id.).

On March 20, 2015, following a hearing on Appellees’ motions for summary

judgment, the trial court entered a Final Summary Judgment, granting Appellees’

and Dr. Kuruvanka’s and Northwest’s motions for summary judgment. (CR 103;

Apx. Tab A).

D. Proceedings After Trial Court Granted Appellees’ Motions for
Summary Judgment

On March 25, 2015, Appellant filed his Motion for New Trial, stating that

the court’s summary judgment orders were erroneous as a matter of law in that the

Appellees failed to carry their summary judgment burden, and the trial court’s

BRIEF OF APPELLEES PAGE 5
order is erroneous due to controlling Texas Supreme Court precedent. (CR 105).

On April 13, 2015, Appellant filed his Notice of Appeal (CR 108-09), and this

appeal ensued.

SUMMARY OF THE ARGUMENT

Appellant’s suit is barred by the statute of limitations. Thus, the trial court

did not err when it granted Appellees’ motion for summary judgment based on

limitations, and this Court should affirm the trial court’s judgment.

Appellant’s suit involves a health care liability claim governed by the two-

year statute of limitations in Chapter 74. The undisputed summary judgment

evidence submitted by Appellees proved that Appellant filed suit more than two

years after the dates treatment occurred and his cause of action accrued. Thus,

Appellant’s suit is barred by the statute of limitations, and the trial court correctly

granted summary judgment in favor of Appellees.

Despite Appellant’s contentions to the contrary, he is not entitled to toll the

limitations period. While Chapter 74 provides that a claimant may toll the

limitations period for seventy-five days, this provision may only be invoked when

the claimant provides the statutorily-required sixty-day pre-suit notice,

accompanied by the authorization for release of medical records described in the

statute. The Texas Supreme Court has made it clear that pre-suit notice is

ineffective to toll limitations when the claimant fails to contemporaneously provide

BRIEF OF APPELLEES PAGE 6
the defendant with the medical authorization necessary to procure medical records,

investigate the claim, and engage in pre-suit negotiations.

Here, Appellant failed to provide Appellees with pre-suit notice and medical

authorizations in this suit. Thus, Appellant is not entitled to toll the limitations

period. Appellant claims that the notice and authorization he provided to another

defendant in a prior suit are good to toll limitations as to Appellees. But Appellees

and the other defendants here were not parties to that prior, separate suit, a suit that

was resolved by summary judgment prior to Appellant’s filing of this suit. The

law is not that any notice or authorization in that prior suit is effective to toll

limitations in the current suit against Appellees, who were deprived of pre-suit

notice, the authorizations necessary to procure medical records, and the ability to

investigate Appellant’s claims and engage in pre-suit negotiations. Appellant’s

position wholly undermines the Legislature’s intent in creating the pre-suit notice

and medical authorization requirements. Further, an abatement remedy is not

available where Appellant missed the deadline for filing suit without providing the

proper pre-suit notice and medical authorization.

Appellant filed suit more than two years after his cause of action accrued

and Appellant is not entitled to toll limitations. Therefore, the trial court correctly

granted Appellees’ motion for summary judgment. This Court should affirm the

trial court’s judgment.

BRIEF OF APPELLEES PAGE 7
 ARGUMENT AND AUTHORITIES

I. Trial Court Correctly Granted Appellees’ Motion for Summary
Judgment Because the Statute of Limitations Bars Appellant’s Claims

Appellant’s suit is barred by the two-year statute of limitations governing

health care liability claims. See TEX. CIV. PRAC. & REM. CODE § 74.251(a).

Appellant’s cause of action accrued no later than September 4, 2012. He did not

file suit until November 11, 2014, and his suit is untimely. Thus, the trial court did

not err in granting Appellees’ motion for summary judgment based on the statute

of limitations, and this Court should affirm the trial court’s judgment.

A. Standard of Review

An appellate court reviews the grant or denial of a motion for summary

judgment de novo. Safeco Lloyds Ins. Co. v. Allstate Ins. Co., 308 S.W.3d 49, 52

(Tex. App.—San Antonio 2009, no pet.) (citing Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 847 (Tex. 2009); Tex. Mun. Power

Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192 (Tex. 2007)). In a

traditional motion for summary judgment, the movant has the burden of showing

there is no genuine issue of material fact and that it is entitled to judgment as a

matter of law. Id.

When a defendant moves for summary judgment on an affirmative defense,

such as the statute of limitations, the defendant must conclusively prove each

element of that defense. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001); City of

BRIEF OF APPELLEES PAGE 8
San Antonio v. Hernandez, 53 S.W.3d 404, 407 (Tex. App.—San Antonio 2001,

pet. denied). If a movant establishes that the statute of limitations bars the action,

the non-movant must then adduce summary judgment proof raising a fact issue in

avoidance of the statute of limitations. Nolan v. Hughes, 349 S.W.3d 209, 212

(Tex. App.—Dallas 2011, no pet.). Evidence favorable to the non-movant is taken

as true, and every reasonable inference in favor of the non-movant will be resolved

in its favor. City of San Antonio, 53 S.W.3d at 407.

B. Appellant’s Claims Are Barred by the Statute of Limitations in
Section 74.251(a)

Appellant’s claims are barred by the two-year statute of limitations in

Chapter 74. There is no dispute that Appellant’s claims are for health care

liability. (See CR 4). Chapter 74 imposes a two-year statute of limitations for

health care liability claims:

(a) Notwithstanding any other law and subject to Subsection (b), no
health care liability claim may be commenced unless the action is
filed within two years from the occurrence of the breach or tort or
from the date the medical or health care treatment that is the subject of
the claim or the hospitalization for which the claim is made is
completed; provided that, minors under the age of 12 years shall have
until their 14th birthday in which to file, or have filed on their behalf,
the claim. Except as herein provided this section applies to all persons
regardless of minority or other legal disability.

TEX. CIV. PRAC. & REM. CODE § 74.251(a). The “notwithstanding any other law”

language of section 74.251(a) imposes an absolute two-year limitations period on

BRIEF OF APPELLEES PAGE 9
health care liability claims. Kimbrell v. Molinet, 288 S.W.3d 464, 468 (Tex.

App.—San Antonio 2008), aff'd, 356 S.W.3d 407 (Tex. 2011).

Here, Appellees submitted summary judgment evidence conclusively

establishing that Appellant’s claims are barred by the two-year statute of

limitations in section 74.251(a). (See CR 21-33). The alleged breaches of the

standards of care took place between August 30, 2012, (the date Appellant was

discharged from Houston Northwest Medical Center with allegedly deficient

prescriptions) and September 4, 2012 (the date Appellant was readmitted to the

hospital). (CR 5-6). Thus, Appellant’s cause of action accrued no later than

September 4, 2012. (CR 24, 39).4 Under section 74.251(a), Appellant was

required to file suit by September 4, 2014. It is undisputed that Appellant did not

file his suit against Appellees until November 11, 2014. (CR 3). Thus, under

section 74.251(a), Appellant’s claims are barred in the absence of a pertinent

tolling provision. See TEX. CIV. PRAC. & REM. CODE § 74.251(a). This Court

should affirm the trial court’s judgment that Appellant take nothing against

Appellees.

4
A plaintiff may not choose for accrual the most favorable date that falls within section
74.251(a)’s three categories. Zweig v. S. Texas Cardiothoracic & Vascular Surgical Associates,
PLLC, 373 S.W.3d 605, 610 (Tex. App.—San Antonio 2012, no pet.) (citing Shah v. Moss, 67
S.W.3d 836, 841 (Tex. 2001)). Rather, if the date the alleged tort occurred is ascertainable,
limitations must begin on that date. Id. Here, the date of accrual is likely August 30, 2012 (the
date of discharge); this date arguably meets all three of section 74.251(a)’s criteria. (See Br. at
6). But it is immaterial whether limitations began running on August 30, 2012 or September 4,
2012, or some date in between because Appellant filed suit after more than two years after
September 4, 2012. (CR 3).

BRIEF OF APPELLEES PAGE 10
 C. Appellant Not Entitled To Toll Limitations in Absence of Proper
Pre-suit Notice with Medical Authorization

While Appellant contends that limitations were tolled based on pre-suit

notice, this assertion is untenable. Appellant did not comply with Chapter 74’s

pre-suit notice requirements—most importantly the requirement of providing the

medical authorizations for release of health information—and therefore may not

avail himself of the tolling provision.

1. Medical Authorization Must Accompany Pre-suit Notice To
Trigger Tolling Period

Section 74.051 of the Civil Practice and Remedies Code provides that:

(a) Any person or his authorized agent asserting a health care liability
claim shall give written notice of such claim by certified mail, return
receipt requested, to each physician or health care provider against
whom such claim is being made at least 60 days before the filing
of a suit in any court of this state based upon a health care liability
claim. The notice must be accompanied by the authorization form
for release of protected health information as required under
Section 74.052.

TEX. CIV. PRAC. & REM. CODE § 74.051(a) (emphasis added). In addition, section

74.052 provides:

(a) Notice of a health care claim under Section 74.051 must be
accompanied by a medical authorization in the form specified by
this section. Failure to provide this authorization along with the
notice of health care claim shall abate all further proceedings against
the physician or health care provider receiving the notice until 60 days
following receipt by the physician or health care provider of the
required authorization.

BRIEF OF APPELLEES PAGE 11
Id. § 74.052(a) (emphasis added).5 Section 74.052(c) states that the required

medical authorization form “shall be in the following form,” and it proceeds to

give the text of the form, with several blanks to be filled in with information

specific to the claimant's claim. Id. § 74.052(c).

The notice and authorization form are intended to afford the defendant the

ability to investigate the claim and resolve it prior to protracted litigation. See id. §

74.052; Brannan v. Toland, No. 01–13–00051–CV, 2013 WL 4004472, at *2 (Tex.

App.—Houston [1st Dist.] Aug. 6, 2013, pet. denied) (mem.op.). The authorization

form grants the defendant physician or health care provider authorization to

disclose the plaintiff's medical records. Id. The form must also identify the

plaintiff's treating physicians for the five years before “the incident made the basis

of the accompanying Notice of Health Care Claim,” and authorize the defendants

to obtain the plaintiff's medical records from these physicians. TEX. CIV. PRAC. &

REM. CODE § 74.052(c).

The notice and medical authorization form encourage pre-suit investigation,

negotiation, and settlement of health care liability claims. See Jose Carreras,

M.D., P.A. v. Marroquin, 339 S.W.3d 68, 73 (Tex. 2011). (“The Legislature

intended that ‘by requiring a potential claimant to authorize the disclosure of

5
“Must accompany” is a directive that creates a mandatory condition precedent. Jose
Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 68, 73 (Tex. 2011) (citing Helena Chem. Co. v.
Wilkins, 47 S.W.3d 486, 494 (Tex. 2001)).

BRIEF OF APPELLEES PAGE 12
otherwise privileged information sixty days before suit is filed, the statute [would]

provide[ ] an opportunity for health care providers to investigate claims and

possibly settle those with merit at an early stage.’”). Indeed, the statutorily

approved medical authorization form explicitly states that it is intended to facilitate

“investigation and evaluation of the health care claim described in the

accompanying Notice of Health Care Claim” or “[d]efense of any litigation arising

out of the claim made the basis of the accompanying Notice of Health Care

Claim.” Mitchell v. Methodist Hosp., 376 S.W.3d 833, 836-37 (Tex. App.—

Houston [1st Dist.] 2012, pet. denied) (quoting TEX. CIV. PRAC. & REM. CODE §

74.052(c)).

The statute provides that if the claimant gives notice in compliance with

Chapter 74, the limitations period is tolled for seventy-five days:

(c) Notice given as provided in this chapter shall toll the applicable
statute of limitations to and including a period of 75 days following
the giving of the notice, and this tolling shall apply to all parties and
potential parties

TEX. CIV. PRAC. & REM. CODE § 74.051(c) (emphasis added). The Texas Supreme

Court and myriad intermediate courts have recognized that strict compliance with

the notice and authorization provisions is required.

In Carreras, 339 S.W.3d at 73, the Marroquins prosecuted claims for

damages resulting from their daughter’s wrongful death after treatment by various

health care providers. On December 17, 2003, two days before the two-year

BRIEF OF APPELLEES PAGE 13
statute of limitations would have expired, the Marroquins provided Dr. Carreras

with notice of their health care liability claims. Id. at 70. However, the

Marroquins did not send an authorization form to Dr. Carreras at that time. On

February 26, 2004, the Marroquins filed suit. Id. Dr. Carreras filed a plea in

abatement and answer objecting to the case proceeding because he had not

received the statutorily required authorization and requesting an abatement under

section 74.052. Id. The trial court granted Dr. Carreras's plea in abatement on June

2, 2004. Id.

Two weeks later, the Marroquins provided Dr. Carreras with another notice

including a list of medical providers and an authorization form that complied with

the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA),

but not with the state requirements under Chapter 74. Id. The Marroquins later

provided Dr. Carreras with an authorization form on September 10, 2004 that

complied with sections 74.051 and 74.052, approximately nine months after the

Marroquins provided their original notice unaccompanied by an authorization and

almost seven months after they filed suit. Id.

Dr. Carreras moved for summary judgment, claiming that the Marroquins’

claims were barred by the applicable statute of limitations. Id. The Marroquins

argued that notice was provided and the suit was filed within the statute of

limitations as tolled by Chapter 74. Id. The trial court held that the requirement for

BRIEF OF APPELLEES PAGE 14
notice and an authorization form under sections 74.051 and 74.052 were separate,

and because notice had been given, the statute of limitations was tolled,

notwithstanding the Marroquins' failure to simultaneously provide the statutorily

required authorization. Id. The trial court therefore denied Dr. Carreras's motion

for summary judgment, and the court of appeals affirmed. Id. at 71.

After detailing the statutory provisions in sections 74.051 and 74.052, the

supreme court analyzed the issue of whether limitations could be tolled when the

authorization did not accompany the notice. The court held that the language of

the statute demanded that the authorization accompany the notice in order to be

effective:

The text of section 74.051(c), which states that notice must be “given
as provided,” does not provide a facial definition of notice. Both
sections 74.051(a) and 74.052(a) specify that the notice “must be
accompanied by” an authorization form, and section 74.052(a)
provides for abatement if an authorization form is not provided “along
with” notice. Id. §§ 74.051(a), .052(a). “Must accompany” is a
directive that creates a mandatory condition precedent. See Helena
Chem. Co. v. Wilkins, 47 S.W.3d 486, 494 (Tex.2001) (holding that
the legislated requirement that a person “must” perform an act creates
a condition precedent (citing TEX. GOV'T CODE § 311.016(3))). If the
authorization does not accompany the notice, then the benefit of the
notice—tolling—may not be utilized.

Id. at 72 (emphasis added).

The supreme court then discussed that the legislative history of sections

74.051 and 74.052 supported this interpretation. The Legislature originally

introduced the notice requirement provision in section 74.051 as part of the

BRIEF OF APPELLEES PAGE 15
Medical Liability and Insurance Improvement Act (MLIIA) in 1977. Medical

Liability and Insurance Improvement Act, 65th Leg., R. S., ch. 817, § 4.01, 1977

Tex. Gen. Laws 2039, 2047–48 (hereinafter “article 4590i”), repealed by Act of

June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884.

The original language of the statute provided, as it does now, that any person

asserting a health care liability claim must give written notice to the health care

provider at least sixty days before filing suit. Id. However, it did not include the

last sentence in the successor provision, section 74.051(a). At that time, written

notice of a claim would trigger tolling. The notice requirement remained

unchanged until 2003.

In House Bill 4 in 2003, the MLIIA was codified in Chapter 74 of the Civil

Practice and Remedies Code, and the Legislature added specific language to

section 74.051(a) requiring that notice of a health care liability claim “must be

accompanied” by the medical authorization form. TEX. CIV. PRAC. & REM. CODE §

74.051(a). “Although notice and a medical authorization are treated separately for

some purposes, after the 2003 amendment to the text, both are required to

constitute notice “as provided” by Chapter 74.” Carreras, 339 S.W.3d at 72-73

(emphasis added).

BRIEF OF APPELLEES PAGE 16
 Accordingly, for the statute of limitations to be tolled in a health care

liability claim pursuant to Chapter 74, a plaintiff must provide both the statutorily

required notice and the statutorily required authorization form. Id. at 74.

Here, Appellant did not provide Appellees with the notice and medical

authorization necessary to toll limitations. (CR 96-98). On July 13, 2013,

Appellant sent Wal-Mart a purported Notice of Claim and an accompanying

authorization in the prior suit. (CR 55-58). Appellees did not receive a notice of

claim letter or an authorization form. While Appellant relies on notice provided to

Wal-Mart, the authorization form provided to Wal-Mart, only granted Wal-Mart

the authority to obtain and disclose protected health information. As the

authorization did not provide Appellees or co-defendants in this suit with the

authority to obtain protected health information pursuant to section 74.052, the

notice did not comply with the statutory requirements. See Carreras, 339 S.W.3d

at 73-74. Consequently, Appellant’s “notice” did not toll the limitations period.

Therefore, Appellant’s suit against Appellees filed on November 11, 2014—at

least two years and sixty-eight days after the cause of action accrued—was

untimely. Carreras, 339 S.W.3d at 73-74; TEX. CIV. PRAC. & REM. CODE §

74.251(a).

2. Appellant’s Case Law Does Not Provide Support

Appellant relies primarily on De Checa v. Diagnostic Center Hospital, Inc.,

852 S.W.2d 935 (Tex. 1993) for the proposition that notice given to one party will
BRIEF OF APPELLEES PAGE 17
toll limitations as to every other party and potential parties. But De Checa did not

answer the question posed here: whether a plaintiff may toll limitations despite that

no notice was given to any defendant in the present suit and despite a failure to

provide the statutorily required authorization form for release of health

information.

In De Checa, the plaintiffs served pre-suit notice of their claim on certain

health care providers who were sued in the same case but not involved in the

appeal within two years of accrual. Id. at 937; De Checa v. Diagnostic Center

Hosp., Inc., 967 F.2d 126, 126 (5th Cir. 1992). They also served pre-suit notice on

Drs. Burbridge, Burnazian, and Davis within two years and seventy-five days. Id.

The plaintiffs urged that the notice of the claim they sent to the other defendants

within two years of the claim's accrual and more than sixty days before filing their

lawsuit also tolled the statute of limitations for the physicians for seventy-five

days. Id. The physicians asserted that the plaintiffs could not take advantage of

the tolling period, that when a health care provider is served with notice of a claim,

the tolling period is triggered for the recipient only, and thus, the failure to notify

them individually within the statutorily-prescribed period meant that the suit

against them was barred two years after the completion of the medical treatment.

Id. The court concluded that the “potential parties” language in section 4.01(c) of

former article 4590i meant that notice to any health care provider under subsection

BRIEF OF APPELLEES PAGE 18
(a) tolled the limitations period for seventy-five days as to all parties against whom

a health care liability claim is timely asserted. Id. at 937-38.

Not only did De Checa involve interpretation of former article 4590i, but

proper notice had been provided to other defendants named in the same suit as Drs.

Burbridge, Burnazian, and Davis. Art. 4590i provided, as it does now, that any

person asserting a health care liability claim must give written notice to the health

care provider at least sixty days before filing suit. Medical Liability and Insurance

Improvement Act, 65th Leg., R. S., ch. 817, § 4.01, 1977 Tex. Gen. Laws 2039,

2047–48, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003

Tex. Gen. Laws 847, 884. However, it did not include the last sentence in the

successor provision, section 74.051(a):

“The notice must be accompanied by the authorization form for release of

protected health information as required under Section 74.052.”

TEX. CIV. PRAC. & REM. CODE § 74.051(a) (emphasis supplied).

Further, since De Checa, the supreme court in Carreras made clear the

importance and necessity of the statutory authorization form as part of giving

proper notice in section 74.051. Simply put, proper notice does not occur in the

absence of the statutory authorization form in section 74.052. Carreras, 339

S.W.3d at 72-74. When a defendant physician or health care provider is not

provided the statutorily mandated authorization, the claimant fails to comply with

BRIEF OF APPELLEES PAGE 19
Chapter 74’s notice requirements and limitations is not tolled. Carreras, 339

S.W.3d at 72-74; Brannan v. Toland, No. 01–13–00051–CV, 2013 WL 4004472,

at *2 (Tex.App.—Houston [1st Dist.] Aug. 6, 2013, pet. denied) (mem.op.) (where

purported authorization form did not identify specific records from other medical

providers and did not give permission to the defendants to seek the disclosure of

other records, but merely authorized a defendant to disclose his medical records to

the plaintiffs’ attorney, but not to obtain any records from other physicians, court

held that plaintiff failed to comply with statute and was not entitled to toll

limitations); Mitchell v. Methodist Hosp., 376 S.W.3d 833, 837 (Tex. App.—

Houston [1st Dist.] 2012, pet. denied) (HIPAA form provided by plaintiff did not

specifically identify defendant hospital as an entity authorized to obtain protected

health information and did not identify plaintiff’s treating physicians for the five

years before the incident, and therefore was inadequate to trigger tolling of

limitations period); Nicholson v. Shinn, No. 01–07–00973–CV, 2009 WL 3152111,

at *4-*5 (Tex. App.-Houston [1st Dist.] Oct. 1, 2009, no pet.) (mem. op.) (notice is

not proper, and the statute of limitations is not tolled when notice is provided

without an authorization form or with a deficient authorization form).

De Checa is also distinguishable because there, the defendants were served

pre-suit notice. De Checa, 852 S.W.2d at 937. That is not the case here. Not one

of the defendants in this suit was served notice or a statutory medical authorization

BRIEF OF APPELLEES PAGE 20
prior to Appellant filing the present suit. Appellant, relying on De Checa, claims

that notice to the defendants in this suit was unnecessary because notice had been

sent to the defendant Wal-Mart in the prior case against that company, a suit to

which Appellees were not parties. (CR 71).6 But this argument carries little

weight. Not only did Appellant’s failure to provide the notice and authorization

deny Appellees the opportunity to investigate the claim pre-suit, but it also failed

to meet the standard established by the supreme court requiring statutory notice be

provided to each health care provider sued. De Checa, 852 S.W.2d at 938-39.

Further, the other cases relied upon by Appellant were decided before the

2003 legislative changes that mandated use of the statutory authorization form and

before Carreras which directed that failure to provide that form with notice

precludes tolling of the limitations period. See Thompson v. Community Health

Inv., 923 S.W.2d 569 (Tex. 1996); Parrish v. Brooks, 856 S.W.2d 522 (Tex.

6
Research has not revealed any decisions holding that “parties and potential parties” as
used in section 74.051(c) would include parties and potential parties to a subsequent state-court
suit filed after summary judgment had been granted in the prior suit filed against the party who
actually received the statutory notice.

Indeed, reading section 74.051(a) together with section 74.051(c), as the Court must in
interpreting the statute, EXLP Leasing, LLC v. Galveston Cent. Appraisal Dist., No. 14-14-
00268-CV, 2015 WL 5025534, at *4 (Tex. App.—Houston [14th Dist.] Aug. 25, 2015, pet. filed)
(citing Tex. Dept. of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004)), notice
is required before filing “suit” (section 74.051(a)), and if properly given, then tolling applies to
all “parties and potential parties” (section 74.051(c)). Interpreting this plain language supports
Appellees’ interpretation: tolling applies to the “parties and potential parties” of the
contemplated suit for which notice is provided. Here, notice to Wal-Mart in Appellant’s first suit
would not toll limitations for parties and potential parties, like Appellees, named in a separate,
subsequent suit.

BRIEF OF APPELLEES PAGE 21
App.—Texarkana 1993, no writ); Sewell v. Adams, 854 S.W.2d 257 (Tex. App.—

Houston [14th Dist.] 1993, no writ). A post-2003 case cited by Appellant, Rabatin

v. Vazquez, 281 S.W.3d 563 (Tex. App.—El Paso 2008, no pet.), is equally

inapplicable. There, the plaintiffs sent a notice letter and a faulty authorization

form to one defendant in October and, to all the other defendants in December. Id.

at 564. One defendant’s counsel however, was able to obtain records using the

faulty authorization form. Id. at 565. The El Paso Court of Appeals found that the

authorization forms were sufficient to toll limitations because the notice letter and

the improperly filled out authorization still gave the defendants fair warning of the

claim and satisfied the purpose of the statute. Id. at 562. Regardless, Rabatin was

decided before Carreras and thus its value is questionable at best.7

It simply cannot be the law that a plaintiff—having suffered an adverse

summary judgment in a prior suit to which certain physicians are not parties—can

subsequently file suit against those physicians after the statute of limitations has

run despite that those physicians received neither pre-suit notice nor medical

authorizations.

7
The Rabatin cases—a trio of cases with the identical limitations/notice/tolling issues—
were a basis for the supreme court’s jurisdiction in Carreras. Carreras, 339 S.W.3d at 71. And
the supreme court ultimately rejected the Rabatin court’s holdings. See id. at 71-74.

BRIEF OF APPELLEES PAGE 22
 D. Appellant’s Procedural Tactics Undermine Legislative Intent

The notice and authorization provisions give the defendant time and the

ability to procure the plaintiff's records in order to assess whether the claim has

merit and whether the defendant should consider early, pre-suit resolution. See

TEX. CIV. PRAC. & REM. CODE § 74.052; Carreras, 339 at 73 (“The Legislature

intended that ‘by requiring a potential claimant to authorize the disclosure of

otherwise privileged information sixty days before suit is filed, the statute [would]

provide[ ] an opportunity for health care providers to investigate claims and

possibly settle those with merit at an early stage.’”) (quoting In re Collins, 286

S.W.3d 911, 916-17 (Tex. 2009)).8 As the supreme court explained:

[A]llowing the advantages of tolling the statute of limitations without
provision of an authorization form would undermine the Legislature's
intention to provide a method for quick, efficient settlement of claims
and to identify non-meritorious claims early. If an authorization
form is not provided pre-suit, the pre-suit negotiation period
triggered by the notice requirement would become meaningless,
as doctors receiving notice without an authorization form could not
procure medical records from other physicians or institutions to
investigate the claims asserted against them. The statute of limitations
is tolled only if both notice and an authorization form are provided.

Carreras, 339 S.W.3d at 73.

Here, while Appellant relies on the pre-suit notice and authorization given to

Wal-Mart in a prior suit, any such pre-suit negotiation period was rendered

8
Further, by requiring the disclosure of relevant health care information, both verbal and
written, section 74.052 furthers “full, efficient, and cost effective discovery.” Collins, 286
S.W.3d at 916-17.

BRIEF OF APPELLEES PAGE 23
meaningless by Appellant’s subsequent failure to provide authorizations to

Appellees. Appellees did not receive any notice or a medical authorization until

after the suit was filed. As such, Appellees were not given fair warning of the

claim. Further, no Appellee in this suit was afforded the opportunity to obtain

Appellant’s medical records prior to suit, thus the legislative purpose of the statute

was not met.

Appellant suggests that predictable limitations periods should outweigh the

goal of pre-suit negotiations and efficient settlement of claims. (Br. at 12-14). But

the De Checa court’s discussion of predictable limitations periods has little weight

here because none of the current defendants received notice or authorizations. The

fact that different defendants might have slightly different limitations deadlines is

no reason to ignore the notice and authorization requirements. And here, Wal-

Mart’s limitations period likely would have differed from Appellees’ regardless

because Appellant visited Wal-Mart’s pharmacy the day after he was discharged

from Houston Northwest Medical Center. (See CR 5). And the Legislature

understood that different limitations periods may apply to one suit, depending on

the care rendered. See TEX. CIV. PRAC. & REM. CODE § 74.251(a). Calculating the

correct limitations period for each defendant in this suit is not some labyrinthine

task that militates against the requirement of notice and authorization for the

BRIEF OF APPELLEES PAGE 24
Appellees to obtain the medical records necessary to evaluate the claims and

engage in pre-suit negotiations.

Appellant also argues that, in the absence of a timely medical authorization

which deprives the defendant the opportunity to evaluate the case before suit,

abatement is the proper remedy. But once the limitations deadline has passed, the

remedy of a sixty-day abatement is no longer available.

The Carreras plaintiffs similarly argued that that service of an authorization

form is unnecessary to toll the statute of limitations because a separate remedy—

abatement—is provided for failure to accompany notice with an authorization

form. Carreras, 339 S.W.3d at 73. The Carreras court could have held that the

plaintiffs’ failure to provide the authorization form simply meant that the

defendants were entitled to a sixty-day abatement. After all, the plaintiffs had sent

notice prior to the limitations deadline. Carreras, 339 S.W.3d at 70. But the

supreme court rejected this argument for several reasons:

If the authorization form was not considered a part of the notice
requirement, an absurd result would be possible under Chapter 74.
Section 74.052(a) provides that "[f]ailure to provide [the]
authorization along with the notice of health care claim shall abate all
further proceedings . . . until 60 days following receipt by the
physician or health care provider of the required authorization." TEX.
CIV. PRAC. & REM. CODE § 74.052(a). This language does not set a
deadline by which plaintiffs must abide. Instead, the abatement could
continue at the plaintiff's leisure until sixty days after the plaintiff
chooses to provide the defendant with an authorization. It is not
reasonable to interpret a statute which is meant to provide speedy
resolution of meritorious health care liability claims and quick

BRIEF OF APPELLEES PAGE 25
 dismissal of nonmeritorious claims to allow a lengthy or indefinite
delay of the resolution of a health care liability claim.

***

[T]he abatement has a use in situations in which the tolling provision
is not at issue. If notice is provided without an authorization well
within the statute of limitations, and the case could be filed sixty
days later and still fall within the limitations period, the
defendant's statutory remedy is to halt proceedings until an
authorization form is received. The abatement remedy fulfills that
purpose

Id. at 73-74 (emphasis added).

Here, as in Carreras, the abatement provision has no application because

Appellant’s suit could not be abated and still filed within the limitations period.

The breach that Appellant complains of occurred between the dates of August 30,

2012 to September 4, 2012. (CR 5-6). Thus, according to the statute, the

limitations period began at the latest on September 4, 2012 and expired no later

than September 4, 2014. Appellant did not file suit until November 11, 2014.

Thus, the remedy of abatement is not available. See also Mitchell v. Methodist

Hosp., 376 S.W.3d 833, 839 (Tex. App.—Houston [1st Dist.] 2012, pet. denied)

(abatement provision had no application because the plaintiffs’ suit could not have

been abated and still filed within the limitations period).

Appellant then relies on College Station Medical Center v. Kilaspa, No. 10-

14-00374-CV, 2015 WL 4504361 (Tex. App.—Waco Jul. 23, 2015, pet. filed) to

support that the preference for pre-suit negotiation must somehow be subverted to

BRIEF OF APPELLEES PAGE 26
other vague considerations. But in Kilaspa the plaintiffs actually sent the notice

and authorization in accordance with section 74.051, i.e. by certified mail, return

receipt requested, prior to the expiration of the limitations period. Id. at *4-*5.

The crux of the court’s decision was that the plaintiff should not be required to

ensure that the notice and authorization are correctly delivered and that the

defendant claim the mail, where the plaintiff sent the documents in accordance

with the statute. Id.9 Here, there is no assertion or evidence that Appellant sent the

notice and authorizations to Appellees in the manner required by the statute, or that

such documents were incorrectly delivered or went unclaimed. Appellant did not

even attempt to give Appellees the notice or authorization required prior to filing

suit. Appellant’s failure to do so should not deprive Appellees of the Legislature-

mandated pre-suit notice and attendant investigation and negotiation period.

Appellant’s cause of action accrued no later than September 4, 2012. In the

absence of a tolling provision, the limitations period expired September 4, 2014.

Appellant failed to give the statutorily-mandated notice with medical

authorizations to the defendants in this suit. Accordingly, Appellant was not

entitled to toll the limitations period. Appellant did not file suit against Appellees

until November 11, 2014, at least two years and sixty-eight days after the cause of

action accrued. Thus, Appellant’s claims are barred by limitations.

9
A petition for review was filed in Kilaspa on October 8, 2015.

BRIEF OF APPELLEES PAGE 27
 CONCLUSION AND PRAYER

Appellees conclusively proved that Appellant filed suit more than two years

after his cause of action accrued. Thus, Appellant’s suit is barred by the statute of

limitations. The trial court did not err when it granted Appellees’ motion for

summary judgment based on limitations, and this Court should affirm the trial

court’s judgment.

Appellant is not entitled to toll the limitations period where he failed to

provide Appellees with pre-suit notice and medical authorizations in this suit.

Pre-suit notice is ineffective to toll limitations when the claimant fails to

contemporaneously provide the defendant with the medical authorization necessary

to procure medical records, investigate the claim, and engage in pre-suit

negotiations.

Appellant’s position that notice to Wal-Mart in a prior suit wholly

undermines the Legislature’s intent in creating the pre-suit notice and medical

authorization requirements. When pre-suit notice and medical authorizations are

not provided, as here, defendants are deprived of the opportunity to obtain medical

records necessary to investigate and evaluate the claim and attempt pre-suit

settlement negotiations, thereby thwarting the statutory purposes of reducing

litigation costs and encouraging settlement. Further, an abatement remedy is not

available where Appellant missed the deadline for filing suit without providing the

proper pre-suit notice and medical authorization.
BRIEF OF APPELLEES PAGE 28
 Appellant filed suit more than two years after his cause of action accrued

and Appellant is not entitled to toll limitations. Therefore, the trial court correctly

granted Appellees’ motion for summary judgment. This Court should affirm the

trial court’s judgment.

THEREFORE, Appellees Ikedinobi U. Eni, M.D., Ikedinobi U. Eni, M.D.,

P.A., and Eni Health Care respectfully pray this Court affirm the March 20, 2015

Final Summary Judgment granting Defendants’ Traditional Motion for Summary

Judgment, and grant such other and further relief, whether general or special, at

law and in equity, as this Court deems just.

BRIEF OF APPELLEES PAGE 29
 Respectfully submitted,

COOPER & SCULLY, P.C.

By: /s/Diana L. Faust
DIANA L. FAUST
diana.faust@cooperscully.com
Texas Bar No. 00793717
KYLE M. BURKE
kyle.burke@cooperscully.com
Texas Bar No. 24073089

900 Jackson Street, Suite 100
Dallas, Texas 75202
Telephone: (214) 712-9500
Facsimile: (214) 712-9540

SPROTT NEWSOM QUATTLEBAUM
MESSENGER
JOEL RANDAL SPROTT
sprott@sprottnewsom.com
Texas Bar No. 18971580

2211 Norfolk, Suite 1150
Houston, Texas 77098
Telephone: (713) 523-8338
Facsimile: (713) 523-9422

ATTORNEYS FOR APPELLEES
IKEDINOBI U. ENI, M.D.,
IKEDINOBI U. ENI, M.D., P.A.,
AND ENI HEALTH CARE

BRIEF OF APPELLEES PAGE 30
 CERTIFICATE OF COMPLIANCE

I hereby certify that this Brief of Appellees was prepared using Microsoft

Word 2010, which indicated that the total word count (exclusive of those items

listed in rule 9.4(i)(1) of the Texas Rules of Appellate Procedure, as amended) is

7,041 words.

/s/ Diana L. Faust
DIANA L. FAUST

BRIEF OF APPELLEES PAGE 31
 CERTIFICATE OF SERVICE

I hereby certify that I served a true and correct copy of this Brief of
Appellees upon on all counsel of record, via efile, on this the 3rd day of December,
2015, at the following address:

Mr. Iain Simpson VIA EFILE
iain@simpsonpc.com
Simpson, P.C.
1333 Heights Boulevard, Suite 102
Houston, Texas 77008
Lead Counsel for Appellant

Mr. Steven R. Davis VIA EFILE
sdavis@davis-davislaw.com
Mr. John A. Davis, Jr.
jdavis@davis-davislaw.com
Davis & Davis
440 Louisiana, Suite 1850
Houston, Texas 77002
Co-Counsel for Appellant

Mr. James Edwards VIA EFILE
jbe@malpracticedefense.com
Mr. Donald Stephens
dss@malpracticedefense.com
Edwards & Stephens
12603 Southwest Freeway, Suite 200
Stafford, Texas 77477
Counsel for Appellees
Tulsidas S. Kuruvanka, M.D., and
Northwest Houston Cardiology, P.A.

/s/Diana L. Faust
DIANA L. FAUST

BRIEF OF APPELLEES PAGE 32
 ORAL ARGUMENT REQUESTED
NO. 01-15-00350-CV

IN THE COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS
AT HOUSTON, TEXAS

SHAN KOVALY,
Appellant,
v.
TULSIDAS KURUVANKA, M.D., ET AL. AND
IKEDINOBI U. ENI, M.D., ET AL.,
Appellees.

On Appeal from the 113th District Court
Harris, County, Texas, Cause No. 2014-66001
(Hon. Michael Landrum)

APPENDIX TO BRIEF OF APPELLEES IKEDINOBI U. ENI, M.D.,
IKEDINOBI U. ENI, M.D., P.A., AND ENI HEALTH CARE

In compliance with rule 38 of the Texas Rules of Appellate Procedure,

Appellees Ikedinobi U. Eni, M.D., Ikedinobi U. Eni, M.D., P.A., and Eni Health

Care submit this Appendix to their Brief of Appellees containing the following

items:

Tab A: Final Summary Judgment (CR 103)

D/931547v2

BRIEF OF APPELLEES PAGE 33
APPENDIX TAB “A”
 Pc

f-- PIL ED
(7) DistVttg
No 2014-66001 mne MAR 2 0 2015
SHAN KOVALY IN

Plaintiff

VS

IKEDINOBI U ENI, M D ,
IKEDINOBI U ENI, P A , OF HARRIS COUNTY, TEXAS
ENI HEALTH CARE
TULSIDAS S KURUVANKA and
NORTHWEST HOUSTON
CARDIOLOGY, P A

Defendants 113TH JUDICIAL DISTRICT

FINAL SUMMARY JUDGMENT

Defendants Ikedinobi U Eni, MD, Ikedinobi U Eni, MD, PA and Eni Health Care
Traditional Motion for Summary Judgment, filed February 20, 2015, and Traditional
Motion for Summary Judgment of Defendants Tulsidas S Kuruvanka, M D and
Northwest Houston Cardiology, P A , filed February 26, 2015, were heard The parties
appeared The Court considered all timely-filed papers germane to the motion, applicable
authority and the argument presented in court

Summary judgment is awarded in favor of all Defendants and against Plaintiff All
of the Plaintiffs causes of action are dismissed

Costs are taxed against the Plaintiff

This is a final judgment that disposes of all claims and it is appealable

Signed March 20, 2015

Mic andrum, Judge

103