Shan Kovaly v. Tulsidas Kurvanka, M.D. and Ikedinobi U. Eni, M.D. ( 2015 )

ACCEPTED
01-15-00350-cv
FIRST COURT OF APPEALS
HOUSTON, TEXAS
9/17/2015 10:24:05 AM
CHRISTOPHER PRINE
CLERK
No. 01-15-00350-CV
IN THE FIRST COURT OF APPEALS FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
AT HOUSTON, TEXAS 9/17/2015 10:24:05 AM
___________________________________________________________
CHRISTOPHER A. PRINE
Clerk
SHAN KOVALY,
Appellant
v.
TULSIDAS KURVANKA, ET AL., AND
IKEDINOBI U. ENI, M.D., ET AL.,
Appellees
___________________________________________________________
Appeal from Cause No. 2014-66001, in the
113th District Court of Harris County, Texas
___________________________________________________________
APPELLANT’S BRIEF
___________________________________________________________
SIMPSON, P.C.
Iain G. Simpson
State Bar No. 00791667
1333 Heights Boulevard, Suite 102
Houston, Texas 77008
(281) 989-0742
iain@simpsonpc.com
APPELLATE COUNSEL FOR
SHAN KOVALY
ORAL ARGUMENT CONDITIONALLY REQUESTED
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ...................................................... v
INDEX OF AUTHORITIES .............................................................................. vii
STATEMENT OF THE CASE ............................................................................ ix
STATEMENT CONCERNING ORAL ARGUMENT ..................................... x
ISSUES PRESENTED ........................................................................................... 1
The trial court erred by granting all defendants/appellees
summary judgment on Kovaly’s healthcare liability claims.
STATEMENT OF FACTS .................................................................................... 2
Factual History .......................................................................................... 2
Procedural History .................................................................................... 3
SUMMARY OF THE ARGUMENT ................................................................... 4
ARGUMENT ......................................................................................................... 5
I. The Standard of Review................................................................ 5
II. Kovaly’s cause of action accrued, at the earliest on
August 20, 2012................................................................................ 6
III. The Medical Liability Act’s limitations period is two
years—plus 75 days where pre-suit notice is given................. 7
1. The Medical Liability Act’s tolling provision. ........................ 7
a. “Tolling and “notice” are not the same
thing. ............................................................................. 8
ii
b. Under De Checa, notice given to one party
tolls limitations as to all potential parties,
including those who do not receive notice. ............ 9
2. Notice to Wal-Mart Stores Texas tolled limitations as
to Drs. Eni and Kuruvanka. .................................................. 10
3. The Appellees argued before the trial court that the
opportunity for pre-suit evaluation and settlement
negotiation is a significant policy consideration. But
it is not the only pertinent consideration. ............................. 12
4. The policy preference for pre-suit evaluation gives
way to other considerations. .................................................. 13
IV. Kovaly gave notice to a defendant within two years
and filed the instant suit within the extended
limitations period, and the trial court’s granting
summary judgment on the basis of limitations was,
therefore, erroneous. .................................................................... 16
CONCLUSION ................................................................................................... 17
PRAYER ............................................................................................................... 18
CERTIFICATE OF COMPLIANCE ................................................................. 19
CERTIFICATE OF SERVICE ............................................................................ 20
APPENDIX
Summary Judgment Order .................................................... Appendix 1
TEX. CIV. PRAC. & REM. CODE § 74.051. ................................. Appendix 2
TEX. CIV. PRAC. & REM. CODE § 74.052 .................................. Appendix 3
iii
TEX. CIV. PRAC. & REM. CODE § 74.251 .................................. Appendix 4
iv
IDENTITY OF PARTIES AND COUNSEL
APPELLANT
Shan Kovaly
Appellate Counsel: Trial Counsel:
Iain G. Simpson Steven R. Davis
Simpson, P.C. Davis & Davis
1333 Heights Boulevard, Suite 102 440 Louisiana, Suite 1850
Houston, Texas 77008 Houston, Texas 77002
(281) 989-0742 (713) 781-5200
(281) 596-6960 – facsimile (713) 781-2235 – facsimile
iain@simpsonpc.com steve@davis-davislaw.com
APPELLEES
Tulsidas Kuruvanka, M.D., and Northwest Houston Cardiology, P.A.
Trial Counsel:
James B. Edwards
Edwards & Stephens
12603 Southwest Freeway, Suite 200
Stafford, Texas 77477
(281) 277-4940
(281) 277-4974 – facsimile
jbe@malpracticedefense.com
v
Ikedinobi U. Eni, M.D.; Ikedinobi U. Eni, M.D., P.A.; and Eni Health Care
Trial Counsel:
Joel Sprott
Sprott, Newsom, Lunceford, et al.
2211 Norfolk, Suite 1150
Houston, Texas 77098
(713) 523-8338
(713) 523-9422 – facsimile
sprott@sprottnewsom.com
Lead Appellate Counsel:
Diana Faust
Cooper & Scully, PC
900 Jackson Street, Suite 100
Dallas, Texas 75202
Diana.faust@cooperscully.com
vi
INDEX OF AUTHORITIES
Cases
Carreras v. Marroquin,
339 S.W.3d 68 (Tex. 2011)..................................................................... 13
College Station Med. Ctr. v. Kilaspa,
No. 10-14-00374-CV, 2015 Tex. App. LEXIS 7618
(Tex. App.—Waco Jul. 23, 2015, n.p.h.). ................................. 14-15, 17
De Checa v. Diagnostic Ctr. Hosp.,
852 S.W.2d 935 (Tex. 1993)................................... 8, 9, 10, 11, 13, 16, 17
Diversicare Gen. Ptnr., Inc. v. Rubio,
185 S.W.3d 842 (Tex. 2005)......................................................................6
Mitchell v. The Methodist Hospital,
376 S.W.3d 833
(Tex. App.—Houston [1st Dist.] 2012, pet. denied) .................... 11, 12
Parrish v. Brooks,
856 S.W.2d 522 (Tex. App.—Texarkana 1993, no writ). .................. 10
Provident Life & Accident Ins. v. Knott,
128 S.W.3d 211 (Tex. 2003)......................................................................5
Pustejovsky v. Rapid-American Corp.,
35 S.W.3d 643 (Tex. 2000)........................................................................6
Rabatin v. Vazquez,
281 S.W.3d 563 (Tex. App.—El Paso 2008, no pet.). ........................ 10
Sewell v. Adams,
854 S.W.2d 257, 261
(Tex. App.—Houston [14th Dist.] 1993, no writ). ......................... 8, 10
vii
Shah v. Moss,
67 S.W.3d 836 (Tex. 2001)........................................................................6
Thompson v. Community Health Inv.,
923 S.W.2d 569 (Tex. 1996)........................................................... 7, 8, 16
Statutes
TEX. CIV. PRAC. & REM. CODE § 74.051.......................................... 3, 7, 8, 11-17
TEX. CIV. PRAC. & REM. CODE § 74.052............................................. 3, 7, 11, 12
TEX. CIV. PRAC. & REM. CODE § 74.251............................................. 6, 7, 14, 16
Rules
TEX. R. APP. P. 9.4 ............................................................................................. 18
TEX. R. APP. P. 38.1 ..............................................................................................1
TEX. R. CIV. P. 166a. .............................................................................................5
viii
STATEMENT OF THE CASE
Nature of the Underlying Proceeding
The case before the Court is a healthcare liability claim based upon an
incorrectly written prescription for medication.
Subject of Relief
The case comes before the Court on appeal from the trial court’s
granting summary judgment to all parties based upon the affirmative
defense of the statute of limitations. Kovaly seeks reversal of the trial
court’s Order.
ix
STATEMENT CONCERNING ORAL ARGUMENT
Kovaly requests oral argument only conditionally. Kovaly’s
arguments are based upon settled case law from the Texas Supreme Court.
It is the Appellees who are likely to argue that this Court should—as the
trial court did—ignore that settled precedent. The Appellees are, thus,
more likely to press for oral argument. Should the Court grant it to them,
Kovaly requests equal time. Otherwise, Kovaly waives oral argument.
x
No. 01-15-00350-CV
IN THE FIRST COURT OF APPEALS
AT HOUSTON, TEXAS
___________________________________________________________
SHAN KOVALY,
Appellant
v.
TULSIDAS KURVANKA, ET AL., AND
IKEDINOBI U. ENI, M.D., ET AL.,
Appellees
___________________________________________________________
Appeal from Cause No. 2014-66001, in the
113th District Court of Harris County, Texas
___________________________________________________________
APPELLANT’S BRIEF
___________________________________________________________
Pursuant to TEX. R. APP. P. 38.1, Appellant Shan Kovaly files this
Appellant’s Brief.
ISSUES PRESENTED
The trial court erred by granting all defendants/appellees
summary judgment on Kovaly’s healthcare liability claims.
1
STATEMENT OF FACTS
Factual History
The relevant facts are largely undisputed. Kovaly presented to
Houston Northwest Medical Center on August 28, 2012, with complaints of
chest pain. CR 5. His evaluation revealed elevated cardiac biomarkers. Id.
Kovaly underwent angioplasty with stenting by Dr. Kuruvanka. Id. Upon
his discharge, Kovaly was prescribed Lopressor 25 mg twice a day,
Pravachol 20 mg at bedtime, aspirin 325 mg daily, Plavix 75 mg daily and
Lisinopril 10 mg twice daily. Id. Dr. Kuruvanka prescribed the medications,
and Dr. Eni discharged him from the hospital on August 30, 2012. Id.
Neither reviewed his prescriptions to ensure they were complete. Id.
Subsequently, Kovaly timely presented his prescriptions to a Wal-
Mart pharmacy for filling. Id. Wal-Mart’s pharmacist refused to fill the
prescriptions due to the prescriptions’ omission of a quantity of pills to be
dispensed. Id. Neither Wal-Mart nor Kovaly were able to reach either of the
Defendant physicians over a period of the next four days. Id. On September
4, 2012, Kovaly was readmitted to Houston Northwest Medical Center with
chest pain. CR 6. Ultimately, he was found to have in-stent thrombosis,
attributable to the fact that he was not taking the prescribed Plavix—a
2
blood thinner. Id. He has required additional hospitalization and treatment,
as a result. Id.
Procedural History
On July 23, 2013, Kovaly, through his attorneys, sent pre-suit notice
and a health care authorization to Wal-Mart Stores Texas, LLC, as required
by TEX. CIV. PRAC. & REM. CODE §§ 74.051 and 74.052. CR 82-85. On July 25,
2013, Kovaly filed suit against Wal-Mart Stores Texas and several of its
unknown agents. CR 88-94. The facts, as recited by Kovaly’s lawsuit
against Wal-Mart Stores Texas, describe the same incident and injuries that
are the subject of the case at bar. Id. Wal-Mart Stores Texas removed
Kovaly’s suit to federal court, where it ultimately was awarded summary
judgment on the grounds that it had no duty to fill an incomplete
prescription on October 21, 2014.1 On November 11, 2014—273 days after
leaving Dr. Eni’s and Dr. Kuruvanka’s care—Kovaly filed the instant suit.
CR 3-9.
Both the Eni and Kuruvanka defendants made appearances and later
moved for traditional summary judgment on the sole ground of the statute
1 The ruling is currently on appeal before the Fifth Circuit Court of Appeals.
3
of limitations, arguing that Kovaly filed suit against them outside the two-
year limitations period. CR 21-29; 35-45. Both sets of defendants
acknowledged the notice letter and authorization sent by Kovaly to Wal-
Mart in July of 2013. CR 30-33; 55-58. In his summary judgment response,
Kovaly argued that notice to one potential defendant triggers a 75-day
tolling period under the Texas Medical Liability Act, after which the
limitations period continues to run and that his notice to Wal-Mart was
sufficient to trigger the tolling period. CR 68-81. The defendants
responded that the notice to Wal-Mart was not sufficient to trigger the
tolling period as to anyone but Wal-Mart and, consequently, the regular
two-year statute applied. CR 95-102. Shortly following argument, the trial
court granted summary judgment to all defendants. CR 103. Kovaly timely
filed a Motion for New Trial (CR 104-107) and subsequently appealed. CR
108-109.
SUMMARY OF THE ARGUMENT
Pre-suit notice is not a sacred cow. The actual notice that is needed
for a defendant to have sufficient information to decide whether to
negotiate a settlement or opt in for litigation is not the same as the
constructive notice that serves to toll limitations under the Medical
4
Liability Act. Settled Texas Supreme Court precedent establishes that the
latter requires only notice sent to one party to toll limitations as to every
party and potential party. Notice as to one equals tolling as to all. The
remedy for the healthcare provider who does not receive pre-suit notice is
abatement, not summary judgment. Texas law recognizes that, while an
opportunity to evaluate a claim before filing an appearance is laudable
policy, that policy gives way when effective and efficient judicial
administration calls for a uniform limitations period and an opportunity to
evaluate a case on its genuine merits. The trial court’s Order erroneously
ignores the rule set by the Texas Supreme Court. That Order should be
reversed.
ARGUMENT
I. The Standard of Review
Texas appellate courts review summary judgments under a de novo
standard. Provident Life & Accident Ins. v. Knott, 128 S.W.3d 211, 215 (Tex.
2003). The party moving for summary judgment is charged with proving
that there are no material issues of fact and that it is entitled to judgment as
a matter of law. TEX. R. CIV. P. 166a(c). The case at bar presents a pure
legal issue for the Court to decide
5
II. Kovaly’s cause of action accrued, at the earliest, on August 30, 2012.
A defendant moving for summary judgment on the affirmative
defense of limitations must prove conclusively the elements of that
defense. Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 646 (Tex. 2000).
This includes proving when the plaintiff’s cause of action accrued.
Diversicare Gen. Ptnr., Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). TEX.
CIV. PRAC. & REM. CODE § 74.251(a) “measures the limitations period for
medical negligence from one of three dates: (1) the occurrence of the
breach or tort, (2) the last date of the relevant course of treatment, or (3) the
last date of the relevant hospitalization.” Shah v. Moss, 67 S.W.3d 836, 841
(Tex. 2001) (interpreting predecessor statute).
All Defendants and Kovaly agreed before the trial court that Kovaly’s
cause of action accrued no earlier than August 30, 2012. CR 24; 39. This
date meets, arguably, all three of § 74.251(a)’s measures. It is the date
Kovaly was discharged from Houston Northwest Medical Center. It is the
date he received the deficient prescriptions from the Defendants. And it is,
again arguably, the last date of the relevant course of treatment.
6
III. The Medical Liability Act’s limitations period is two years—plus 75
days where pre-suit notice is given.
The Medical Liability Act provides a limitations period of two years
from the date of accrual. TEX. CIV. PRAC. & REM. CODE § 74.251(a).
1. The Medical Liability Act’s tolling provision.
The real crux of the Defendant’s summary judgment motions and the
trial court’s ruling on them is the applicability of TEX. CIV. PRAC. & REM.
CODE § 74.051(c)’s tolling provision. Sec. 74.051(a) requires that any person
or his authorized agent asserting a health care liability claim must give
written notice of the claim by certified mail to each physician or health care
provider against whom the claim is being made at least 60 days before
filing suit. See TEX. CIV. PRAC. & REM. CODE § 74.051(a). The notice must be
accompanied by a medical authorization in the form specified by TEX. CIV.
PRAC. & REM. CODE § 74.052(a). Service of the notice required by § 74.051
and the authorization required by § 74.052, accomplished within the
limitations period, tolls the applicable limitations period for 75 days. TEX.
CIV. PRAC. & REM. CODE § 74.051(c); Thompson v. Community Health Inv., 923
S.W.2d 569 (Tex. 1996).
7
a. “Tolling” and “notice” are not the same thing.
“Notice” is given to the party who receives a notice letter. In
contrast, “tolling” applies to the health care provider who receives the
notice and authorization and also applies to “all parties and potential
parties,” as well. TEX. CIV. PRAC. & REM. CODE § 74.051(c); 923 S.W.2d, at
571. In short, once tolling is accomplished with respect to one party, it is
accomplished with respect to every party and every potential party. De
Checa v. Diagnostic Ctr. Hosp., 852 S.W.2d 935, 938 (Tex. 1993) (“[N]otice to
one serves to toll the limitations period for all.”). See also Sewell v. Adams,
854 S.W.2d 257, 261 (Tex. App.—Houston [14th Dist.] 1993, no writ) (“When
notice is sent to any health care provider within two years of the claim's
accrual, the limitations period for all defendants is tolled for seventy-five
days.”). “Proper presuit notice provided by the claimant within this initial
two-year period tolls the two-year limitations period for 75 days not only
as to the health care provider who actually received the notice before
limitations ran, but ‘to all parties and potential parties’ as well. After the
expiration of 75 days, the remaining portion of the limitations period
continues to run.” Thompson v. Community Health Inv., 923 S.W.2d, at 571.
8
b. Under De Checa, notice given to one party tolls limitations
as to all potential parties including those who do not
receive notice.
In De Checa, the Texas Supreme Court set out a timeline of significant
events. 852 S.W.2d, at 937, n. 3. It noted that the plaintiff’s limitations
period began to run on September 25, 1986. Id. It noted two dates within
the limitations period where the plaintiff gave notice of the claim to two
health care providers who were not ultimately involved in the appeal. Id.
Then it noted the close of the limitations period on September 25, 1988. Id.
And it recited the notification of the defendant physicians—Drs. Davis,
Burbridge, and Burnazian—who were involved in the appeal; notification
that came over two years after accrual of the cause of action, but less than
two years and 75 days from that accrual. Id. Finally, the Court noted that
the plaintiffs filed suit against the defendant physicians—Davis, Burbridge,
and Burnazian—within two years and seventy-five days from accrual of
the cause of action. Id. The Court observed that the plaintiffs “served
presuit notice of their claim on other health care providers who are not
involved in this proceeding within two years of accrual. They served
presuit notice on the [defendants in that suit] within two years and
seventy-five days.” 852 S.W.2d, at 937.
9
The plaintiffs/appellants in De Checa argued that the notice of the
claim they sent to other defendants within the limitations period operated,
not as notice to Drs. Davis, Burbridge, and Burnazian, but to invoke the
medical liability statute’s tolling provision. Id. In response, the
defendants/appellees asserted the same argument that the Defendants
asserted in the trial court. They argued that, when a health care provider is
served with notice of a claim, the tolling period extends only to the
recipient of the notice. The Texas Supreme Court rejected the argument of
Drs. Davis, Burbridge, and Burnazian over twenty years ago, and the
argument has not gained credence with age. Indeed, it has been steadily
rejected. Parrish v. Brooks, 856 S.W.2d 522, 527 (Tex. App.—Texarkana 1993,
no writ); Rabatin v. Vazquez, 281 S.W.3d 563, 567 (Tex. App.—El Paso 2008,
no pet); Sewell, 854 S.W.2d, at 261. As the Texas Supreme Court held over
twenty years ago: “notice to one serves to toll the limitations period for
all.” De Checa, 852 S.W.2d, at 937.
2. Notice to Wal-Mart Stores Texas tolled limitations as to Drs. Eni and
Kuruvanka.
Kovaly does not suggest that notice to one party provides notice to
every party, only that—as the Texas Supreme Court and Texas appellate
10
courts have held—notice to one party provides tolling as to all. See, e.g., 852
S.W.2d, at 937. Kovaly’s suit against Wal-Mart Stores Texas arose from the
same facts as the instant suit, and his pre-suit notice provided entirely
adequate notice to Wal-Mart. CR 82-85. This was sufficient to toll
limitations for 75 days as to both Wal-Mart and all other “potential
parties,” including the Defendants, herein. See TEX. CIV. PRAC. & REM. CODE
§ 74.051(c).
Where tolling is not at issue—and the Texas Supreme Court’s holding
in De Checa demonstrates that, here, it is not—a defendant’s remedy, in the
event that it has not received an appropriate authorization to obtain
healthcare information, is abatement, not summary judgment. See TEX. CIV.
PRAC. & REM. CODE § 74.052(a) (failure to provide authorization along with
notice of claim abates further proceedings until 60 days following receipt of
the required authorization); Mitchell v. The Methodist Hospital, 376 S.W.3d
833, 839 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (“[T]he
abatement has a use in situations in which the tolling provision is not at
issue.”). 2
2 Both sets of defendants/appellees cited Mitchell in their summary judgment
motions. Notably, nowhere in Mitchell is there any suggestion that any party was
11
Both Motions for summary judgment argued that the statutorily
required authorization provided by Kovaly was insufficient because it
allowed only Wal-Mart access to his records. CR 25-26. Therefore, they
argue, it is insufficient because it did not provide these defendants with
authorization to obtain Kovaly’s medical records. Id. But the question is not
whether the authorization was adequate for them, but whether it was
adequate for Wal-Mart. Once adequate notice and authorization are served
on one party—and even Drs. Eni and Kuruvanka appeared to acknowledge
that this occurred—tolling occurs as to all parties and potential parties,
even if others have received no notice, adequate or not. De Checa, 852
S.W.2d, at 938.
3. The Appellees argued before the trial court that the opportunity for
pre-suit evaluation and settlement negotiation is a significant policy
consideration. But it is not the only pertinent consideration.
The physician defendants argued with some force that the purpose of
pre-suit notice is to allow a healthcare provider to obtain medical records
and evaluate a potential claim before suit is ever filed. CR 26. There is no
timely served with notice and an appropriate medical authorization form. Indeed, the
Court specifically noted that the only notice letter sent by the Mitchell plaintiffs—to
defendant The Methodist Hospital—included an authorization that was not in the form
prescribed by TEX. CIV. PRAC. & REM. CODE § 74.052. 376 S.W.3d, at 834. Consequently,
§ 74.051(c)’s tolling provision was never invoked. It is a critical distinction.
12
question that this is a goal of the Medical Liability Act’s notice provision.
See, generally, TEX. CIV. PRAC. & REM. CODE § 74.051. But this policy
consideration gives way to other considerations, where necessary. As the
Texas Supreme Court observed in De Checa, “Our legislature intended to
enact a strict and predictable limitations period.” 852 S.W.2d, at 938. The
Court observed that parsing limitations periods depending on who
received timely notice and who did not would undermine this legislative
intent. Id. But this is exactly what was suggested by the Appellees before
the trial court and exactly what the trial court accepted. According to the
Appellees’ reading of the law, the limitations period applicable to Wal-
Mart is different than the limitations period applicable to Drs. Eni and
Kuruvanka, despite all claims against all parties arising out of substantially
the same transaction, arising within a single 24-hour period, and resulting
in the same claimed damages.
4. The policy preference for pre-suit evaluation gives way to other
considerations.
Before the trial court, the Drs. Eni and Kuruvanka leaned heavily on
the case of Carreras v. Marroquin, 339 S.W.3d 68 (Tex. 2011). In that case, the
Texas Supreme Court held that a pre-suit notice letter that did not include
13
the statutorily required medical authorization form did not trigger the
tolling provision of TEX. CIV. PRAC. & REM. CODE § 74.051(c). From this, the
Appellees concluded that all parties and potential parties must receive a
pre-suit medical authorization for the tolling to be effective as to them,
even as they confessed that their argument has never been accepted by any
Texas court. CR 97.
But pre-suit evaluation of claims is not the sacred cow that the
Appellees argued before the trial court. De Checa recognized that, under
exigent circumstances, a plaintiff may be required to file suit before the
sixty day pre-suit notice period elapses. 852 S.W.2d, at 938. In such
instances, abatement—not summary judgment—is the available remedy.
The failure to serve a particular health care provider with notice—as
distinguished from a failure to serve any health care provider—results only
in abatement as to that defendant. Id.
Moreover, at least one Texas court of appeals has recently held that
“providing” notice within the meaning of § 74.051(c) does not mean that a
notice letter even need be received to allow tolling of limitations. See
College Station Med. Ctr. v. Kilaspa, No. 10-14-00374-CV, 2015 Tex. App.
LEXIS 7618 (Tex. App.—Waco Jul. 23, 2015, n.p.h.). In Kilaspa, the plaintiffs
14
filed suit against a physician defendant and the Medical Center defendant
outside the two-year limitations period of § 74.251(a), but within the extend
limitations period. The defendants moved for summary judgment on the
ground of limitations, arguing that neither received the statutory notice
letter and, thus, the tolling provision of § 74.051(c) was never triggered.
The plaintiffs admitted that they had sent no notice at all to the Medical
Center defendant but argued that the tolling provision was nevertheless
invoked because they timely mailed a sufficient notice to the physician
defendant, even though it was never received. They argued that the notice
was effective to toll limitations even if unclaimed or undelivered.
A majority of the Waco court held that § 74.051 does not require a
plaintiff to ensure that a defendant actually receives notice. Consequently,
summary judgment for the physician defendant—to whom notice was sent,
but never received—was improper. But, more significantly for this case,
the Court also held that summary judgment for the Medical Center
defendant—to whom notice was never even sent—was unsupportable. As
long as appropriate notice was sent—meaning written notice of the claim
via certified mail, return receipt requested, sent within the two-year
limitations period—the limitations period was tolled as to both defendants,
15
the one to which notice was sent and the one to which no notice was sent.
Once again, pre-suit evaluation gives way to greater considerations of
uniformity of limitations periods and allowing claims to go forward and
have their merits reached.
IV. Kovaly gave notice to a defendant within two years and filed the
instant suit within the extended limitations period, and the trial
court’s granting summary judgment on the basis of limitations was,
therefore, erroneous.
On July 23, 2013, less than one year after his cause of action accrued,
Kovaly, through his attorneys, sent pre-suit notice and a health care
authorization to Wal-Mart Stores Texas, LLC. CR 82-85. Thus, Kovaly
served notice and an authorization on a healthcare provider well within the
two-year limitations period and began the 75-day tolling period. See De
Checa, 852 S.W.2d, at 938. After that 75 days expired, limitations began to
run again. Thompson, 923 S.W.2d, at 571 (“After the expiration of 75 days,
the remaining portion of the limitations period continues to run.”). On
Tuesday, November 11, 2014, Kovaly filed the instant suit. Under the
extended limitations period—that is, the two-year period provided by TEX.
CIV. PRAC. & REM. CODE § 74.251(a) plus the 75-day tolling period provided
by TEX. CIV. PRAC. & REM. CODE § 74.051(c)—the limitations period ended
16
on Thursday, November 13, 2014. Thus, Kovaly filed his suit within the
extended limitations period.
The trial court’s Order stands for the prospect that the 75-day tolling
provision of TEX. CIV. PRAC. & REM. CODE § 74.051(c) was never triggered.
It can be read no other way. And as such, it flies directly in the face of the
Texas Supreme Court’s holding in De Checa. It is erroneous, per se, and
merits reversal.
CONCLUSION
Tolling and notice are not synonymous, and they do not go hand in
hand. Although the Appellees argued in the trial court that the law has
changed, the Texas Supreme Court’s precedent has not. De Checa—as
established law—still governs this case and mandates reversal of the trial
court’s summary judgment Order. De Checa states clearly that the policy
behind pre-suit notice is not untouchable. It gives way where necessary to
maintain uniformity of law within the case and reach the merits of a claim.
While the Appellees make much of the changes to the law that took
place in 2003 and post-date De Checa, no Texas court has, to date, accepted
their arguments, and the Waco court very recently appears to have rejected
them in Kilaspa. That ruling is wholly inconsistent with the Appellees’
17
position before the trial court. Moreover, it is not for trial courts to buck
the established holdings of the Texas Supreme Court. Even the Appellees
appear to acknowledge that the facts and holding of De Checa are
applicable to the facts at bar. When the Texas Supreme Court overrules De
Checa, the trial court need no longer observe it. Until that happens, De
Checa is still law.
PRAYER
For the foregoing reasons, Appellant Shan Kovaly respectfully
requests that the trial court’s Order granting summary judgment to
Ikedinobi U. Eni, M.D.; Ikedinobi U. Eni, M.D., P.A.; and Eni Health Care,
and to Tulsidas Kuruvanka, M.D., and Northwest Houston Cardiology,
P.A., be reversed and that this case be remanded for further proceedings.
18
Respectfully submitted,
SIMPSON, P.C.
/s/ Iain G. Simpson
______________________________
Iain G. Simpson
State Bar No. 00791667
1333 Heights Boulevard, Suite 102
Houston, Texas 77008
(281) 989-0742
(281) 596-6960 (fax)
iain@simpsonpc.com
APPELLATE COUNSEL FOR
SHAN KOVALY
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing Appellant’s Brief is computer-
generated, that those portions required to be counted by Rule 9.4(i)(1),
Texas Rules of Appellate Procedure, contain 3,551 words according to the
word-count function of the application used to create it, and that it
complies with the word-count requirements of Rule 9.4, Texas Rules of
Appellate Procedure. It is printed in 14-point typeface, except for the
footnotes, which are in 12-point typeface.
/s/ Iain G. Simpson
______________________________
Iain G. Simpson
19
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Appellant’s Brief was
served this 17th day of September, 2015, via facsimile, hand delivery,
electronic service, or certified U.S. Mail, on the following:
James B. Edwards
Edwards & Stephens
12603 Southwest Freeway, Suite 200
Stafford, Texas 77477
(281) 277-4940
(281) 277-4974 – facsimile
jbe@malpracticedefense.com
COUNSEL FOR TULSIDAS KURUVANKA, M.D., AND NORTHWEST HOUSTON
CARDIOLOGY, P.A.
Joel Sprott
Sprott, Newsom, Lunceford, et al.
2211 Norfolk, Suite 1150
Houston, Texas 77098
(713) 523-8338
(713) 523-9422 – facsimile
sprott@sprottnewsom.com
Diana Faust
Cooper & Scully, PC
900 Jackson Street, Suite 100
Dallas, Texas 75202
Diana.faust@cooperscully.com
COUNSEL FOR IKEDINOBI U. ENI, M.D.; IKEDINOBI U. ENI, M.D., P.A.; AND ENI
HEALTH CARE
20
/s/ Iain G. Simpson
____________________________
Iain G. Simpson
21
APPENDIX 1
103
APPENDIX 2
Sec. 74.051. NOTICE. (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.
(b) In such pleadings as are subsequently filed in any
court, each party shall state that it has fully complied with
the provisions of this section and Section 74.052 and shall
provide such evidence thereof as the judge of the court may
require to determine if the provisions of this chapter have been
met.
(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.
(d) All parties shall be entitled to obtain complete and
unaltered copies of the patient's medical records from any other
party within 45 days from the date of receipt of a written
request for such records; provided, however, that the receipt
of a medical authorization in the form required by Section
74.052 executed by the claimant herein shall be considered
compliance by the claimant with this subsection.
(e) For the purposes of this section, and notwithstanding
Chapter 159, Occupations Code, or any other law, a request for
the medical records of a deceased person or a person who is
incompetent shall be deemed to be valid if accompanied by an
authorization in the form required by Section 74.052 signed by a
parent, spouse, or adult child of the deceased or incompetent
person.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept.
1, 2003.
APPENDIX 3
Sec. 74.052. AUTHORIZATION FORM FOR RELEASE OF PROTECTED
HEALTH INFORMATION. (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.
(b) If the authorization required by this section is
modified or revoked, the physician or health care provider to
whom the authorization has been given shall have the option to
abate all further proceedings until 60 days following receipt of
a replacement authorization that must comply with the form
specified by this section.
(c) The medical authorization required by this section
shall be in the following form and shall be construed in
accordance with the "Standards for Privacy of Individually
Identifiable Health Information" (45 C.F.R. Parts 160 and 164).
AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION
A. I, __________ (name of patient or authorized
representative), hereby authorize __________ (name of physician
or other health care provider to whom the notice of health care
claim is directed) to obtain and disclose (within the parameters
set out below) the protected health information described below
for the following specific purposes:
1. To facilitate the investigation and evaluation of
the health care claim described in the accompanying Notice of
Health Care Claim; or
2. Defense of any litigation arising out of the claim
made the basis of the accompanying Notice of Health Care Claim.
B. The health information to be obtained, used, or
disclosed extends to and includes the verbal as well as the
written and is specifically described as follows:
1. The health information in the custody of the
following physicians or health care providers who have examined,
evaluated, or treated __________ (patient) in connection with
the injuries alleged to have been sustained in connection with
the claim asserted in the accompanying Notice of Health Care
Claim. (Here list the name and current address of all treating
physicians or health care providers). This authorization shall
extend to any additional physicians or health care providers
that may in the future evaluate, examine, or treat __________
(patient) for injuries alleged in connection with the claim made
the basis of the attached Notice of Health Care Claim;
2. The health information in the custody of the
following physicians or health care providers who have examined,
evaluated, or treated __________ (patient) during a period
commencing five years prior to the incident made the basis of
the accompanying Notice of Health Care Claim. (Here list the
name and current address of such physicians or health care
providers, if applicable.)
C. Excluded Health Information--the following constitutes a
list of physicians or health care providers possessing health
care information concerning __________ (patient) to which this
authorization does not apply because I contend that such health
care information is not relevant to the damages being claimed or
to the physical, mental, or emotional condition of __________
(patient) arising out of the claim made the basis of the
accompanying Notice of Health Care Claim. (Here state "none" or
list the name of each physician or health care provider to whom
this authorization does not extend and the inclusive dates of
examination, evaluation, or treatment to be withheld from
disclosure.)
D. The persons or class of persons to whom the health
information of __________ (patient) will be disclosed or who
will make use of said information are:
1. Any and all physicians or health care providers
providing care or treatment to __________ (patient);
2. Any liability insurance entity providing liability
insurance coverage or defense to any physician or health care
provider to whom Notice of Health Care Claim has been given with
regard to the care and treatment of __________ (patient);
3. Any consulting or testifying experts employed by or
on behalf of __________ (name of physician or health care
provider to whom Notice of Health Care Claim has been given)
with regard to the matter set out in the Notice of Health Care
Claim accompanying this authorization;
4. Any attorneys (including secretarial, clerical, or
paralegal staff) employed by or on behalf of __________ (name of
physician or health care provider to whom Notice of Health Care
Claim has been given) with regard to the matter set out in the
Notice of Health Care Claim accompanying this authorization;
5. Any trier of the law or facts relating to any suit
filed seeking damages arising out of the medical care or
treatment of __________ (patient).
E. This authorization shall expire upon resolution of the
claim asserted or at the conclusion of any litigation instituted
in connection with the subject matter of the Notice of Health
Care Claim accompanying this authorization, whichever occurs
sooner.
F. I understand that, without exception, I have the right
to revoke this authorization in writing. I further understand
the consequence of any such revocation as set out in Section
74.052, Civil Practice and Remedies Code.
G. I understand that the signing of this authorization is
not a condition for continued treatment, payment, enrollment, or
eligibility for health plan benefits.
H. I understand that information used or disclosed pursuant
to this authorization may be subject to redisclosure by the
recipient and may no longer be protected by federal HIPAA
privacy regulations.
Signature of Patient/Representative
__________
Date
__________
Name of Patient/Representative
__________
Description of Representative's Authority
__________
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept.
1, 2003.
APPENDIX 4
Sec. 74.251. STATUTE OF LIMITATIONS ON 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.
(b) A claimant must bring a health care liability claim
not later than 10 years after the date of the act or omission
that gives rise to the claim. This subsection is intended as a
statute of repose so that all claims must be brought within 10
years or they are time barred.
Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept.
1, 2003.