ACCEPTED 04-14-00518-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 2/10/2015 3:00:35 PM KEITH HOTTLE CLERK
No. 04-14-00518 FILED IN 4th COURT OF APPEALS IN THE COURT OF APPEALS SAN ANTONIO, TEXAS 02/10/2015 3:00:35 PM FOURTH DISTRICT KEITH E. HOTTLE SAN ANTONIO, TEXAS Clerk
JEANNE COOK, Appellant,
v.
WARREN F. NEELY, M.D. Appellee.
On Appeal from the th 285 Judicial District, Bexar County, Texas
REPLY BRIEF OF APPELLANT
TO THE HONORABLE COURT OF APPEALS:
COMES NOW Appellant herein and Plaintiff below, JEANNE COOK,
hereinafter referred to as “Cook,” and files this her Reply Brief in the above-entitled
and -numbered cause.
REPLY BRIEF OF APPELLANT 1 ARGUMENT AND AUTHORITIES
At first blush, the Brief of Appellee Warren Neely (“Neely”) appears to state
a compelling argument regarding the sweeping breadth and depth of the Texas
Medical Liability Act (“TMLA”), vis-a-vis a line of cases which seem to resemble the
instant proceeding – wherein the operative facts potentially give rise to both a
“health care liability claim” (“HCLC”), and a fraud (or similar) claim. Neely cites
authority-after-authority-after-authority, which seem to collectively echo a mantra of
“Thou shalt not recast an HCLC into a fraud claim.” But a careful reading of the
cited authorities reveals an inconvenient truth, and it is reflected in the following
excerpt from the Brief of Appellee:
Texas law prevents Cook from recasting her HCLC into another cause of action, such as fraud, to avoid the requirements and limitations of Chapter 74. Diversicare, 185 S.W.3d at 851. In other words, Cook “....cannot use artful pleading to avoid the MLIIA’s requirements when the essence of the suit is a health care liability claim.”
Brief of Appellee, p. 15 (emphasis added)
Simply stated, the bolded portion above is the linchpin for Neely’s entire
argument regarding the viability of Cook’s fraud claim, and this Reply Brief will
demonstrate the undeniable collapse of the linchpin, pursuant to the unique facts
presented by this case.
REPLY BRIEF OF APPELLANT 2 As referenced above, Neely cites a litany of case law which purports to
undermine the viability of a fraud claim like Cook’s, i.e., one that arises within a
broader HCLC context. Moreover, Neely casually dismisses the opinions cited as
primary authority by Cook, in her Appellant’s Brief, e.g., Sorokolit v. Rhodes, 889
S.W.2d 239 (Tex. 1994); Crundwell v. Becker, 981 S.W.2d 880 (Tex. App. –
Houston [1st Dist.] 1998, pet. denied); Melissinos v. Phamanivong, 823 S.W.2d 339
(Tex. App. – Texarkana 1991, writ denied); Garcia v. Columbia Med. Ctr., 996 F.
Supp. 605, 610 (E.D. Tex. 1998). Ruiz v. Walgreen Co., 79 S.W.3d 235, 239 (Tex.
App. – Houston [14th Dist.] 2002, no pet.); Rogers v. Crossroads Nursing Serv., Inc.,
13 S.W.3d 417, 419 (Tex. App. – Corpus Christi 1999, no pet.) (henceforth,
collectively referred to as the Sorokolit line of cases). As discussed previously in
Appellant’s Brief, all of these cases stand for the proposition that a fraud (or similar)
claim is indeed viable in the context of an HCLC, yet Neely derisively labels them as
(1) “outdated,” or at the very least (2) distinguishable.
In labeling these cases as “outdated,” Neely implies that the subsequent
enactment of the TMLA, and/or the holding in subsequent cases such as Diversicare
General Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005) (henceforth, referred to
collectively as the “Diversicare line of cases”), somehow overrules the earlier
REPLY BRIEF OF APPELLANT 3 precedent. Yet this implication is unfounded and unsupported, as Neely can cite to
no authority which explicitly overturns this time-honored line of cases.
And rather than existing at-odds with one another, there is indeed a profound
harmony among these authorities. As stated previously, the linchpin which creates
the harmony is the qualification which appears throughout the entire Diversicare line
of cases – these holdings are limited to cases wherein the plaintiff is attempting
to avoid the requirements and limitations of the TMLA. Thus, the presence of this
qualification begs the question as to what is the meaning of the phrase “requirements
and limitations.” A careful review of the provisions of Chapter 74 reveals a multitude
of procedural requirements including, inter alia, notice requirements, expert-report
requirements, prescribed forms, discovery procedure, and so on. See, e.g. T EX. CIV.
P RAC. & REM. CODE §§74.051; 74.052, 74.053; 74.351; 74.352; 74.401; 74.403.
Moreover, limitations in the form of damage caps, as well as a statute of limitations,
are included. See, e.g. T EX. CIV. P RAC. & REM. CODE §74.251; Subchapter G. Yet
nowhere within the text of Chapter 74 is there an explicit proscription against fraud
(or similar) claims, in the context of an HCLC.
Having established what constitutes the “requirements and limitations” of the
TMLA, the analysis necessarily shifts to an examination of whether Cook’s fraud
REPLY BRIEF OF APPELLANT 4 claim is merely an artfully pleaded end-around, designed to circumvent these
requirements and limitations. Yet this Court need look no further than the fact that
Cook’s abidance with the TMLA requirements and limitations were never
challenged by Neely. Indeed, Neely has failed to pinpoint any specific TMLA
requirement or limitation which was effectively usurped or preempted by way of
Cook’s fraud claim. A blanket statement regarding Cook’s avoidance of the TMLA
by way of her fraud claim, without support, is legally insufficient.
Surprisingly, Cook generally agrees with one of Neely’s arguments – the lines
of cases cited by the respective parties are indeed distinguishable. However, it is the
Diversicare line of cases which is so factually distinguishable that they have no
precedential value in this proceeding. To wit, each and every opinion within the
Diversicare line of cases – without fail – involves a pre-trial challenge to the
plaintiff’s abidance with one or more of the TMLA requirements and
limitations. See Diversicare Gen. Partners, Inc. v. Rubio, 185 S.W.3d 842 (Tex.
2005); Tex. West Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171 (Tex. 2012);
Yamada, M.D. v. Friend, 355 S.W.3d 192 (Tex. 2010); Loaisiga v. Cerda, 379
S.W.3d 248 (Tex. 2012); Saleh v. Hollinger, 335 S.W.3d 368 (Tex. App. – Dallas
2011, no pet. hx); Lee v. Boothe, 235 S.W.3d 448 (Tex. App. – Dallas 2007, pet.
REPLY BRIEF OF APPELLANT 5 denied); Perry v. Samuels, 307 S.W.3d 826, 828 (Tex. App. – Dallas 2010, no pet.);
Turtle Healthcare Group, L.L.C. v.
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ACCEPTED 04-14-00518-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 2/10/2015 3:00:35 PM KEITH HOTTLE CLERK
No. 04-14-00518 FILED IN 4th COURT OF APPEALS IN THE COURT OF APPEALS SAN ANTONIO, TEXAS 02/10/2015 3:00:35 PM FOURTH DISTRICT KEITH E. HOTTLE SAN ANTONIO, TEXAS Clerk
JEANNE COOK, Appellant,
v.
WARREN F. NEELY, M.D. Appellee.
On Appeal from the th 285 Judicial District, Bexar County, Texas
REPLY BRIEF OF APPELLANT
TO THE HONORABLE COURT OF APPEALS:
COMES NOW Appellant herein and Plaintiff below, JEANNE COOK,
hereinafter referred to as “Cook,” and files this her Reply Brief in the above-entitled
and -numbered cause.
REPLY BRIEF OF APPELLANT 1 ARGUMENT AND AUTHORITIES
At first blush, the Brief of Appellee Warren Neely (“Neely”) appears to state
a compelling argument regarding the sweeping breadth and depth of the Texas
Medical Liability Act (“TMLA”), vis-a-vis a line of cases which seem to resemble the
instant proceeding – wherein the operative facts potentially give rise to both a
“health care liability claim” (“HCLC”), and a fraud (or similar) claim. Neely cites
authority-after-authority-after-authority, which seem to collectively echo a mantra of
“Thou shalt not recast an HCLC into a fraud claim.” But a careful reading of the
cited authorities reveals an inconvenient truth, and it is reflected in the following
excerpt from the Brief of Appellee:
Texas law prevents Cook from recasting her HCLC into another cause of action, such as fraud, to avoid the requirements and limitations of Chapter 74. Diversicare, 185 S.W.3d at 851. In other words, Cook “....cannot use artful pleading to avoid the MLIIA’s requirements when the essence of the suit is a health care liability claim.”
Brief of Appellee, p. 15 (emphasis added)
Simply stated, the bolded portion above is the linchpin for Neely’s entire
argument regarding the viability of Cook’s fraud claim, and this Reply Brief will
demonstrate the undeniable collapse of the linchpin, pursuant to the unique facts
presented by this case.
REPLY BRIEF OF APPELLANT 2 As referenced above, Neely cites a litany of case law which purports to
undermine the viability of a fraud claim like Cook’s, i.e., one that arises within a
broader HCLC context. Moreover, Neely casually dismisses the opinions cited as
primary authority by Cook, in her Appellant’s Brief, e.g., Sorokolit v. Rhodes, 889
S.W.2d 239 (Tex. 1994); Crundwell v. Becker, 981 S.W.2d 880 (Tex. App. –
Houston [1st Dist.] 1998, pet. denied); Melissinos v. Phamanivong, 823 S.W.2d 339
(Tex. App. – Texarkana 1991, writ denied); Garcia v. Columbia Med. Ctr., 996 F.
Supp. 605, 610 (E.D. Tex. 1998). Ruiz v. Walgreen Co., 79 S.W.3d 235, 239 (Tex.
App. – Houston [14th Dist.] 2002, no pet.); Rogers v. Crossroads Nursing Serv., Inc.,
13 S.W.3d 417, 419 (Tex. App. – Corpus Christi 1999, no pet.) (henceforth,
collectively referred to as the Sorokolit line of cases). As discussed previously in
Appellant’s Brief, all of these cases stand for the proposition that a fraud (or similar)
claim is indeed viable in the context of an HCLC, yet Neely derisively labels them as
(1) “outdated,” or at the very least (2) distinguishable.
In labeling these cases as “outdated,” Neely implies that the subsequent
enactment of the TMLA, and/or the holding in subsequent cases such as Diversicare
General Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005) (henceforth, referred to
collectively as the “Diversicare line of cases”), somehow overrules the earlier
REPLY BRIEF OF APPELLANT 3 precedent. Yet this implication is unfounded and unsupported, as Neely can cite to
no authority which explicitly overturns this time-honored line of cases.
And rather than existing at-odds with one another, there is indeed a profound
harmony among these authorities. As stated previously, the linchpin which creates
the harmony is the qualification which appears throughout the entire Diversicare line
of cases – these holdings are limited to cases wherein the plaintiff is attempting
to avoid the requirements and limitations of the TMLA. Thus, the presence of this
qualification begs the question as to what is the meaning of the phrase “requirements
and limitations.” A careful review of the provisions of Chapter 74 reveals a multitude
of procedural requirements including, inter alia, notice requirements, expert-report
requirements, prescribed forms, discovery procedure, and so on. See, e.g. T EX. CIV.
P RAC. & REM. CODE §§74.051; 74.052, 74.053; 74.351; 74.352; 74.401; 74.403.
Moreover, limitations in the form of damage caps, as well as a statute of limitations,
are included. See, e.g. T EX. CIV. P RAC. & REM. CODE §74.251; Subchapter G. Yet
nowhere within the text of Chapter 74 is there an explicit proscription against fraud
(or similar) claims, in the context of an HCLC.
Having established what constitutes the “requirements and limitations” of the
TMLA, the analysis necessarily shifts to an examination of whether Cook’s fraud
REPLY BRIEF OF APPELLANT 4 claim is merely an artfully pleaded end-around, designed to circumvent these
requirements and limitations. Yet this Court need look no further than the fact that
Cook’s abidance with the TMLA requirements and limitations were never
challenged by Neely. Indeed, Neely has failed to pinpoint any specific TMLA
requirement or limitation which was effectively usurped or preempted by way of
Cook’s fraud claim. A blanket statement regarding Cook’s avoidance of the TMLA
by way of her fraud claim, without support, is legally insufficient.
Surprisingly, Cook generally agrees with one of Neely’s arguments – the lines
of cases cited by the respective parties are indeed distinguishable. However, it is the
Diversicare line of cases which is so factually distinguishable that they have no
precedential value in this proceeding. To wit, each and every opinion within the
Diversicare line of cases – without fail – involves a pre-trial challenge to the
plaintiff’s abidance with one or more of the TMLA requirements and
limitations. See Diversicare Gen. Partners, Inc. v. Rubio, 185 S.W.3d 842 (Tex.
2005); Tex. West Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171 (Tex. 2012);
Yamada, M.D. v. Friend, 355 S.W.3d 192 (Tex. 2010); Loaisiga v. Cerda, 379
S.W.3d 248 (Tex. 2012); Saleh v. Hollinger, 335 S.W.3d 368 (Tex. App. – Dallas
2011, no pet. hx); Lee v. Boothe, 235 S.W.3d 448 (Tex. App. – Dallas 2007, pet.
REPLY BRIEF OF APPELLANT 5 denied); Perry v. Samuels, 307 S.W.3d 826, 828 (Tex. App. – Dallas 2010, no pet.);
Turtle Healthcare Group, L.L.C. v. Linan, 337 S.W.3d 865 (Tex. 2011); Harris Meth.
Ft. Worth v. Ollie, 342 S.W.3d 525 (Tex. 2011); Harris Meth. Ft. Worth v. Ollie, 342
S.W.3d 525 (Tex. 2011); Omaha Healthcare Center, L.L.C. v. Johnson, 344 S.W.3d
392 (Tex. 2011). The entirety of the Diversicare line of cases, revolves around either
(1) a plaintiff whose expert report does not pass muster under the TMLA, or (2) a
plaintiff whose statute of limitations has expired – defects which were challenged and
adjudicated pre-trial. Accordingly, with the demise of their HCLC claim, the
plaintiffs in this Diversicare line of cases have no choice but to try and bootstrap their
way into a viable claim – by recasting their HCLC as a fraud (or similar) claim.
These claims were dismissed, and justifiably so, as improper attempts to circumvent
the requirements and limitations of the TMLA.
But it cannot be overstated that Cook never attempted to circumvent the
requirements and limitations of the TMLA, as her abidance therewith was never
challenged. To wit, the record is devoid of a challenge to the adequacy of Cook’s
expert report, as Neely never even filed an objection thereto. And it is this truth –
inconvenient as it is for Neely – which distinguishes Cook’s claim from the
Diversicare line of cases. Moreover, it is this inconvenient truth which places her
REPLY BRIEF OF APPELLANT 6 squarely within the ambit of the Sorokolit line of cases – and thereby creates a viable
claim as more fully discussed in Appellant’s Brief.
Evidence of Fraud
Finally, Neely’s arguments regarding Cook’s alleged failure to produce
sufficient evidence of fraud is belied by the bevy of evidence cited in Appellant’s
Brief, and they do not merit an extensive reply. The evidence cited in Appellant’s
Brief is probative of multiple misrepresentations of fact – by both commission and
omission – upon which Cook relied to her detriment. Said evidence is thoroughly
cited in the tables appearing in Appellant’s Brief on pages 16-20.
PRAYER
WHEREFORE, Cook respectfully prays that her appeal be granted; that the
verdict be set aside and reversed; and that the case be remanded for further
proceedings in the trial court, to include a jury trial de novo. Cook further prays that
costs be taxed against Appellee and that Cook be granted such additional relief, at law
or in equity, to which she may be entitled.
REPLY BRIEF OF APPELLANT 7 Respectfully submitted,
DREYER & MAZAHERI, PLLC 111 Soledad, Suite 110 San Antonio, Texas 78205 Telephone: (210) 472-1400 Facsimile: (210) 472-1404
By: /s/ DAIN A. DREYER State Bar No. 00793639
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
instrument will be sent via fax transmission to opposing counsel on this the 10th day
of February, 2014.
/s/ DAIN A. DREYER
REPLY BRIEF OF APPELLANT 8