Juan Francisco Montalvo, M.D., F.A.C.O.G. v. Gabriela Lopez ( 2015 )


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  •                                                                                   ACCEPTED
    04-14-00803-CV
    FOURTH COURT OF APPEALS
    SAN ANTONIO, TEXAS
    3/3/2015 12:05:06 AM
    KEITH HOTTLE
    CLERK
    ORAL ARGUMENT REQUESTED                      FILED IN
    4th COURT OF APPEALS
    SAN ANTONIO, TEXAS
    NO. 04-14-00803-CV             03/3/2015 12:05:06 AM
    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)
    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 ............................................................................. xi
    ISSUES PRESENTED........................................................................................ xiii
    STATEMENT OF FACTS ..................................................................................... 1
    SUMMARY OF THE ARGUMENT ...................................................................... 4
    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 .................................................................... 16
    CERTIFICATE OF SERVICE.............................................................................. 23
    vi
    TABLE OF AUTHORITIES
    CASES
    Adams v. Gottwald,
    
    179 S.W.3d 101
    (Tex. App.—San Antonio 2005, pet. denied) ........................ 6, 7, 8
    Borowski v. Ayers, No. 10-13-00077-CV,
    2013 Tex. App. LEXIS 14784 (Tex. App.—Waco Dec. 5, 2013, no pet.) ............... 3
    CSFB 1998-PI Buffalo Speedway Office, Ltd. Partnership v. Amtech Elevator
    Services Co., No. 01-08-00639-CV, 2010 Tex. App. LEXIS 6830
    (Tex. App.—Houston [1st Dist.] Aug. 19, 2010, no pet.) ..................................... 3, 4
    De Romo v. St. Mary of Plains Hosp. Fnd.,
    
    843 S.W.2d 72
    (Tex. App.—Amarillo 1992, writ denied) ..................................... 12
    Diamond Prods. Int’l v. Handsel,
    
    142 S.W.3d 491
    (Tex. App.—Houston [14th Dist.] 2004, no pet.) .......................... 3
    Double Diamond Delaware, Inc. v. Walkinshaw, No. 05-13-00893-CV,
    2013 Tex. App. LEXIS 12447 (Tex. App.—Dallas Oct. 7, 2013, no pet.)............... 3
    Garcia v. Gomez, 
    319 S.W.3d 638
    , 643 (Tex. 2010) ....................................... 10, 11
    In re Collins, 
    286 S.W.3d 911
    , 916-17 (Tex. 2009) ......................................... 10,11
    Jose Carreras, M.D., P.A. v. Marroquin, 
    339 S.W.3d 68
    (Tex. 2011) ..... 10, 11, 13
    Karley v. Bell, 
    24 S.W.3d 516
    (Tex. App.—Fort Worth 2000, pet. denied) .......... 12
    King-A Corp. v. Wehling, No. 13-13-00100-CV, 2013 Tex. App. LEXIS 2761,
    (Tex. App.—Corpus Christi March 14, 2013, no pet) ............................................. 3
    Mock v. Presbyterian Hosp.,
    
    379 S.W.3d 391
    (Tex. App.—Dallas 2012, pet. denied) ................................. 12, 13
    vii
    Rabatin v. Kidd, 
    281 S.W.3d 558
    (Tex. App.—El Paso 2008, no pet.)............ 11, 12
    Sax v. Votteler, 
    648 S.W.2d 661
    (Tex. 1983) .................................................. 6, 7, 8
    Schepps v. Presbyterian Hosp. of Dallas, 
    652 S.W.2d 934
    , 938 (Tex. 1983) ........ 10
    State Fair of Tex. v. Iron Mountain Info. Mgmt.,
    
    299 S.W.3d 261
    (Tex. App.—Dallas 2009, no pet.) ............................................... 3
    Tejada v. Gernale, 
    363 S.W.3d 699
    (Tex. App.—Houston 2011, no pet.)............. 12
    Texas Farmers Ins. Co. v. Minjarez, No. 08-12-00272-CV,
    2012 Tex. App. LEXIS 9043 (Tex. App.—El Paso Oct. 31, 2012, no pet.) ............. 3
    The Corp. of the President of the Church of Jesus Christ of Latter-Day Saints v.
    Doe, No. 13-13-00463-CV, 2013 Tex. App. LEXIS 125435
    (Tex. App.—Corpus Christi Oct. 10, 2013, no pet.). ............................................... 3
    Weiner v. Wasson, 
    900 S.W.2d 316
    (Tex. 1995) ............................... 5, 6, 7, 8, 9, 13
    STATUTES
    Tex. Const. art. I § 13. ........................................................................................ 5, 
    7 Tex. Civ
    . Prac. & Rem. Code § 16.001 ................................................... 8, 9, 13, 
    14 Tex. Civ
    . Prac. & Rem. Code § 16.003 ................................................... 8, 9, 13, 
    14 Tex. Civ
    . Prac. & Rem. Code § 51.014(d) ..............................................................2
    Tex. Civ. Prac. & Rem. Code § 74.051 ........................................... 9, 11, 13, 14, 
    15 Tex. Civ
    . Prac. & Rem. Code § 74.052 ........................................................... 11, 
    13 Tex. Civ
    . Prac. & Rem. Code § 74.251(a) ..............................4, 5, 6, 7, 9, 11, 14, 15
    Tex. Rev. Civil Stat. art. 4590i § 10.01(a) ............................................. 5, 6, 7, 8, 12
    Tex. Rev. Civil Stat. art. 4590i § 4.01 ............................................................. 10, 12
    Tex. Ins. Code art. 5.82 § 4 ................................................................................. 5, 6
    viii
    RULES
    Texas Rule of Appellate Procedure 28.3(e)(4) .................................................... 2, 3
    ix
    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)
    BRIEF OF APPELLEE
    TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF
    APPEALS:
    Appellee Gabriela Lopez submits this 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:
    x
    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.
    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”).
    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. On April 2, 2014, the
    Defendants filed a motion to appeal interlocutory order in the Trial Court. On
    April 22, 2014, Plaintiff Gabriela Lopez filed her response in opposition. On
    November 3, 2014, the Trial Court entered its Amended Order Denying
    xi
    Defendants’ Motions for Summary Judgment and Granting Defendants’ Motion for
    Permission to Appeal Interlocutory Order.
    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, the Court granted Appellant’s Petition.
    xii
    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.
    xiii
    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).
    Following a hearing held March 5, 2014, the Trial Court entered Orders on March
    19, 2014, denying the motions for summary judgment. Appellants filed their
    replies (CR 421-22, 558-59, 580-81), and Gabriela Lopes 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
    2
    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)    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
    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
    run on Gabriela Lopez’s eighteenth birthday, March 11, 2011. Gabriela Lopez
    served notice of her claim, accompanied by the authorization for release of
    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, MLIIA § 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 MLIIA 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
    Industrial Traffic League v. Railroad Comm. of Texas, 
    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
    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.
    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 L. Keith
    Darrell L. Keith, Attorney-in-Charge
    SBOT No. 11186000
    dkeith@keithlaw.com
    Laura A. Russell
    SBOT No. 24046777
    lrussell@keithlaw.com
    ATTORNEYS FOR APPELLEE
    GABRIELA LOPEZ
    By: /s/ Darrell L. Keith
    Darrell L. Keith
    21
    CERTIFICATE OF COMPLIANCE
    I certify that this document was produced on a computer using Microsoft
    Word 2010 and contains 5037words, 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 L. Keith
    Darrell L. Keith
    22
    CERTIFICATE OF SERVICE
    I certify that on March 2, 2015, I served a true and correct copy of the
    foregoing Brief of Appellee by electronic service upon all counsel of record for the
    Appellants.
    By: /s/ Darrell L. Keith
    Darrell L. Keith
    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.
    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
    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