Ravi Botla, M.D. v. Salvador Del Toro, Jr.

• Court: Court of Appeals of Texas
• Decided: February 6, 2015
• Docket: 04-15-00061-CV
• Status: Published

Opinion

ACCEPTED 04-14-00061-CV FOURTH COURT OF APPEALS 04-15-00061-CV SAN ANTONIO, TEXAS 2/6/2015 3:33:46 PM KEITH HOTTLE CLERK

ORAL ARGUMENT REQUESTED NO.

IN THE FOURTH COURT OF APPEALS AT SAN ANTONIO, TEXAS

RAVI BOTLA, M.D., Appellant, v. SALVADOR DEL TORO, JR., Appellee.

On Appeal from the 131st District Court Bexar County, Texas, Cause No. 2013-CI-19135 (Hon. Peter Sakai)

APPELLANT’S PETITION FOR PERMISSION TO APPEAL ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Respectfully submitted, COOPER & SCULLY, P.C. EVANS, ROWE & HOLBROOK, P.C. DIANA L. FAUST BRETT B. ROWE diana.faust@cooperscully.com bbrowe@evans-rowe.com Texas Bar No. 00793717 Texas Bar No. 17331750 MICHELLE E. ROBBERSON NICKI K.ELGIE michelle.robberson@cooperscully.com nelgie@evans-rowe.com Texas Bar No. 16982900 Texas Bar No. 24069670 900 Jackson Street, Suite 100 10101 Reunion Place, Suite 900 Dallas, Texas 75202 San Antonio, Texas 78216 (214) 712-9500 (210) 384-3271 (214) 712-9540 (fax) (210) 340-6664 (fax) COUNSEL FOR APPELLANT IDENTITY OF PARTIES AND COUNSEL

Ravi Botla, M.D. Defendant/Appellant

Salvador Del Toro, Jr. Plaintiff/Appellee

Trial and Appellate Counsel for Appellant

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

Brett B. Rowe Trial and Appellate Counsel for Appellant Nicki K. Elgie Evans, Rowe & Holbrook, P.C. 10101 Reunion Place, Suite 900 San Antonio, Texas 78216

Trial and Appellate Counsel for Appellee

George W. Mauze, II Trial and Appellate Counsel for Appellee Mauze Law Firm 2632 Broadway, Suite 401S San Antonio, Texas 78215

i TABLE OF CONTENTS

Page

TABLE OF CONTENTS....................................................................................... ii

TABLE OF AUTHORITIES ................................................................................ iv

TABLE OF ABBREVIATIONS........................................................................... vi

I. COMPLIANCE WITH RULE 28.3(e)(1) OF THE TEXAS RULES OF APPELLATE PROCEDURE..................................................................1

II. STATEMENT OF THE CASE .....................................................................2

III. STATEMENT OF JURISDICTION .............................................................3

IV. ISSUES PRESENTED..................................................................................4

V. STATEMENT OF FACTS ...........................................................................6

A. Plaintiff Alleges Negligence by Defendants........................................6

B. Plaintiff Provides a Chapter 74 Notice Letter But Attaches a Deficient Medical Authorization.........................................................7

C. Plaintiff Files His Health Care Liability Claim ...................................8

D. Dr. Botla Moves for Summary Judgment on Limitations ....................8

E. Trial Court Conducts Hearing on Dr. Botla’s Motion .........................9

VI. SUMMARY OF THE ARGUMENT ..........................................................11

VII. ARGUMENT .............................................................................................14

A. Standards for Permissive Interlocutory Appeals................................14

B. Controlling Question of Law No.1: Whether Plaintiff’s Original Medical Authorization was Legally Sufficient to Trigger the 75-Day Tolling Provision in Section 74.251(c)...............16

ii C. Controlling Question of Law No. 2: Whether Dr. Botla Had Standing to Challenge the Medical Authorization Provided to Another Defendant............................................................................19

D. Controlling Question of Law No. 3: Whether a Statute or Civil Procedure Rule Can Trump Chapter 74’s Limitation Provision and Extend the Limitations Deadline from a Sunday to a Monday.............................................................................................20

E. Lastly, Immediate Appeal of the Order Will Materially Advance the Ultimate Termination of the Litigation .........................23

CERTIFICATE OF COMPLIANCE ....................................................................26

CERTIFICATE OF SERVICE..............................................................................26

APPENDIX TO APPELLANT’S PETITION FOR PERMISSION TO APPEAL ORDER DENYING MOTION FOR SUMMARY JUDGMENT ..........27

iii TABLE OF AUTHORITIES

Case Page(s)

Bala v. Maxwell, 909 S.W.2d 889 (Tex. 1995) .......................................................................25, 26

Belehu v. Lawniczak, 437 S.W.3d 913 (Tex. App.—Houston [14th Dist.] 2014, pet. filed)............15, 22

BNSF Ry. Co. v. Acosta, No. 08-13-00268-CV, 2014 WL 5794620 (Tex. App.—El Paso, Nov. 7, 2014, no. pet.) ................................................... 15

Brannan v. Toland, No. 01-13-00051-CV, 2013 WL 4004472 (Tex. App.—Houston [1st Dist.], Aug. 6, 2013, pet. denied) (mem. op.) .......... 17

Cantu v. Mission Reg. Med. Ctr., No. 13-12-00568-CV, 2014 WL 1879292 (Tex. App.–Corpus Christi, May 8, 2014, no pet.) (mem. op.) ......................... 17

Certain Underwriters at Lloyd's of London Subscribing to Policy Number: £FINFR0901509 v. Cardtronics, Inc., 438 S.W.3d 770 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ................15, 22

Chilkewitz v. Hyson, 22 S.W.3d 825 (Tex. 1999).............................................................................. 22

Gale v. Lucio, 445 S.W.3d 849 (Tex. App.—Houston [1st Dist.] 2014, pet. filed)........15, 22, 23

Gulley v. State Farm Lloyds, 350 S.W.3d 204 (Tex. App.—San Antonio 2011, no pet.) ............................... 14

Hill v. Milani, 686 S.W.2d 610 (Tex. 1985) ............................................................................ 21

Jose Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 68 (Tex. 2011).........................................................................19, 20

iv Mitchell v. Methodist Hosp., 376 S.W.3d 833 Tex. App.—Houston [1st Dist.] 2012, pet. denied) ................. 17

Mock v. Presbyterian Hosp. of Plano, 379 S.W.3d 391 (Tex. App.—Dallas 2012, pet. denied)................................... 18

Molinet v. Kimbrell, 356 S.W.3d 407 (Tex. 2011) ............................................................................ 21

Nicholson v. Shinn, No. 01-07-00973-CV, 2009 WL 3152111 (Tex. App.—Houston [1st Dist.], Oct. 1, 2009, no pet.) ................................... 18

Rabatin v. Kidd, 281 S.W.3d 558 (Tex. App.—El Paso 2008, no pet.) ....................................... 18

Statutes Page(s)

TEX. CIV. PRAC. & REM. CODE § 51.014(d) (Vernon 2011).................................... 3

TEX. CIV. PRAC. & REM. CODE § 51.014(f) (Vernon 2011)................................3, 14

TEX. CIV. PRAC. & REM. CODE § 74.002 .............................................................. 21

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

TEX. CIV. PRAC. & REM. CODE § 74.051(c) .......................................................7, 16

TEX. CIV. PRAC. & REM. CODE § 74.251(a) .....................................................16, 20

TEX. CIV. PRAC. & REM. CODE § 74.251(c) .......................................................... 16

Rules Page(s)

TEX. R. APP. P. 28.3(k)........................................................................................... 2

v TABLE OF ABBREVIATIONS

Dr. Botla uses the following abbreviations for the pleadings and other

documents from the underlying suit, which are included in the Appendix to this

Petition:

Botla MSJ – Ravi Botla, M.D.’s Motion for Summary Judgment and for Severance

DSLB – Defendant Dr. Botla’s supplemental letter brief

Opp. – Plaintiff’s Opposition to Defendant Ravi Botla, M.D.’s Motion for Summary Judgment

Order – Order Denying Motion for Summary Judgment and for Severance of Defendant Ravi Botla, M.D. and Granting Permission to Appeal

POP – Plaintiff’s Original Petition

P1AOP – Plaintiff’s First Amended Original Petition

P4AOP – Plaintiff’s Fourth Amended Original Petition

PSLB – Plaintiff’s supplemental letter brief

Reply – Ravi Botla, M.D.’s Reply to Plaintiff’s Opposition to Motion for Summary Judgment

TC letter ruling – October 10, 2014 letter ruling from Judge Sakai

vi NO.

RAVI BOTLA, M.D., Appellant, v. SALVADOR DEL TORO, JR., Appellee.

On Appeal from the 131st District Court Bexar County, Texas, Cause No. 2013-CI-19135 (Hon. Peter Sakai)

APPELLANT’S PETITION FOR PERMISSION TO APPEAL ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Appellant Ravi Botla, M.D. petitions this Court, pursuant to sections

51.014(d) and (f) of the Texas Civil Practice & Remedies Code and rule 28.3 of the

Texas Rules of Civil Procedure, for permission to appeal the trial court’s Order

denying Appellant’s motion for summary judgment. In support of his Petition, Dr.

Botla respectfully alleges as follows:

I. COMPLIANCE WITH RULE 28.3(e)(1) OF THE TEXAS RULES OF APPELLATE PROCEDURE

Dr. Botla provides the following information required by rule 28.3(e)(1) of

the Texas Rules of Appellate Procedure:

1 1. The trial court, case number, and style:

Salvador Del Toro, Jr., Plaintiff, v. Gerardo E. Carcamo, M.D. and Ravi Botla, M.D., Defendants, Cause No. 2013-CI-19135, in the 131st District Court of Bexar County, Texas (the Hon. Peter Sakai, presiding).

2. The order being appealed:

The January 22, 2015 Order Denying Motion for Summary Judgment and for Severance of Defendant Ravi Botla, M.D., and Granting Permission to Appeal (the “Order”). (Apx. Tab A).

3. Who desires to appeal:

Appellant Ravi Botla, M.D. files this Petition and desires to appeal the Order.

4. The court to which the appeal is taken:

The Court of Appeals for the Fourth District of Texas at San Antonio, Texas.

5. Whether appeal is accelerated:

If this Petition is granted, the appeal will be governed by the rules for accelerated appeals. TEX. R. APP. P. 28.3(k).

II. STATEMENT OF THE CASE

On November 20, 2013, Salvador Del Toro, Jr. (“Plaintiff”) filed this health

care liability claim against Gerardo E. Carcamo, M.D. (POP at 1). On March 3,

2014, Plaintiff amended his petition to add Dr. Botla as a Defendant, alleging Dr.

Botla was negligent in his care and treatment of him on or about December 17,

2011. (P1AOP at 2).

2 On August 4, 2014, Dr. Botla filed his Motion for Summary Judgment and

for Severance, on the ground that the statute of limitations bars Plaintiff’s claim

against him. (Botla MSJ at 1-13). Plaintiff responded, and Dr. Botla replied. The

trial court, the Hon. Peter Sakai, conducted a hearing on Dr. Botla’s motion on

September 16, 2014, and he invited the parties to submit additional arguments

supportive of their respective positions. Both parties filed supplemental letter

briefs.

In correspondence dated October 10, 2014, the trial court advised the parties

of its rulings (denying Dr. Botla’s motion and granting Dr. Botla’s request to

permit an immediate appeal from the trial court’s Order) and requested preparation

of an appropriate order. (TC letter). On January 22, 2015, the trial court signed

the Order that is the subject of this Petition seeking permissive appeal. (Apx. Tab

A at 1-4).

III. STATEMENT OF JURISDICTION

This Court has jurisdiction over this Petition, pursuant to sections 51.014(d)

and 51.014(f) of the Texas Civil Practice and Remedies Code. TEX. CIV. PRAC. &

REM. CODE § 51.014(d), (f) (Vernon 2011). The trial court signed the Order

permitting interlocutory appeal on the basis that: (1) the order involves controlling

questions of law as to which there are substantial grounds for differences of

3 opinion; and (2) an immediate appeal from the order may materially advance the

ultimate termination of the litigation. (Apx. Tab A).

IV. ISSUES PRESENTED

The trial court’s Order denying Dr. Botla’s motion for summary judgment

involves controlling questions of law as to which there substantial grounds for

differences of opinion, including: (a) whether Plaintiff’s medical authorization

provided to a co-defendant was sufficient to toll limitations as to Dr. Botla (i.e.,

whether it had to precisely track the language of section 74.052(c) or whether

substantial compliance was sufficient), or whether Plaintiff’s claim against Dr.

Botla is barred by limitations; and (b) if the medical authorization was sufficient,

whether the statute of limitations still bars Plaintiff’s claim against Dr. Botla

because the limitations period ended on a Sunday, and no statute or rule may trump

the absolute Chapter 74 limitations period to extend it to a Monday.

These legal issues justify an immediate appeal of the trial court’s Order

under section 51.014(d) of the Civil Practice and Remedies Code, and resolution of

these issues could materially advance the resolution of this health care liability

claim as to Dr. Botla. That is, if Dr. Botla is correct and the statute of limitations

bars Plaintiff’s claim, the claim against Dr. Botla will be dismissed with prejudice.

The trial court identified these controlling issues of law in its Order:

4 1. Was Plaintiff’s medical authorization attached to his Chapter 74 notice letter sufficient to toll the statute of limitations, pursuant to section 74.051(c) of the Texas Civil Practice & Remedies Code?

2. Does a defendant health care provider or physician, who did not receive a notice letter and authorization under section 74.051(a) of the Texas Civil Practice & Remedies Code, have standing to complain that an authorization provided to another health care provider or physician named and sued as a defendant in the same lawsuit is insufficient to toll the statute of limitations pursuant to section 74.051(c)?

3. In light of the “notwithstanding any other law” language of section 74.251 of the Texas Civil Practice & Remedies Code.251 and the conflict provision of section 74.002, do rule 4 of the Texas Rules of Civil Procedure and section 16.072 of the Texas Civil Practice & Remedies Code nonetheless operate to extend the statute of limitations in a Chapter 74 health care liability claim when the last day of the applicable limitations period falls on a weekend or legal holiday?

5 V. STATEMENT OF FACTS

A. Plaintiff Alleges Negligence by Defendants

Plaintiff timely filed his Original Petition against Dr. Carcamo only. (See

POP at 1). In that Original Petition, Plaintiff asserted a health care liability claim

against Dr. Carcamo based on alleged negligence in diagnosing and treating his

abdominal pain and recurrent diverticulitis, as well as alleged negligence that

allegedly caused a bowel perforation that necessitated multiple surgeries. (POP at

2-4).

Dr. Botla provided a consultation to Dr. Carcamo on the morning of

December 17, 2011. (P1AOP at 2). After evaluating Plaintiff, Dr. Botla

recommended a colonoscopy and ordered a colon prep for that procedure. (Id.).

That evening, Plaintiff complained of continued abdominal pain, and a repeat CT

scan showed a bowel perforation. (Id. at 3). Dr. Carcamo performed surgery on

Plaintiff on December 18, 2011 and again on December 21, 2011. (Id.). Plaintiff’s

lawsuit against Dr. Botla asserts negligence related to Dr. Botla’s December 17,

2011 recommendation for a colonoscopy and order for the colon prep, on the

theory that the colon prep contributed to the bowel perforation. (See P1AOP at 4-

5; P4AOP at 3, 5).

6 B. Plaintiff Provides a Chapter 74 Notice Letter But Attaches a Deficient Medical Authorization

Prior to filing suit, and within the two-year statute of limitations provided by

section 74.251 of the Texas Civil Practice & Remedies Code, Plaintiff sent to Dr.

Carcamo (1) a notice letter dated June 11, 2013, pursuant to section 74.051(a), and

(2) a purported medical authorization, pursuant to section 74.052. (Ex. A to POP;

Apx. Tab B). Plaintiff did not send Dr. Botla a notice letter or a medical

authorization at any time.1

The medical authorization sent to Dr. Carcamo, however, was defective

because it did not track the language of section 74.052(c), it authorized the release

of Plaintiff’s medical records only to his own attorneys, and it did not identify all

the patient’s physicians and health care providers for the previous five years.

(Apx. Tab B). The original medical authorization stated:

I, Salvador Del Toro, Jr. (name of patient or authorized representative), hereby authorize Gerardo E. Carcamo, M.D. (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) to Mauzé Law Firm the protected health information described below.

(Apx. Tab B). Also, the authorization did not list Dr. Botla as a physician who

examined, evaluated, or treated Plaintiff in the five years prior to the incident made

1 In his first amended and later petitions, Plaintiff alleged that the “statute of limitations prohibited the providing of written notice of said claim to Defendant Botla.” (P1AOP at 6). TEX. CIV. PRAC. & REM. CODE § 74.051(c) (Notice given as provided in chapter tolls limitations and tolling shall apply to all parties and potential parties).

7 the basis of his claim and did not authorize Dr. Botla to obtain Plaintiff’s medical

records. (Id.).

In his answer to Plaintiff’s original petition, filed the day before the statute

of limitations expired, Dr. Carcamo pleaded for abatement of the lawsuit because

of the defective medical authorization. (Ex. G to Botla MSJ). Although Plaintiff

later provided Dr. Carcamo with revised medical authorizations,2 Plaintiff provided

those to Dr. Carcamo after December 17, 2013, the date on which the two-year

statute of limitations expired (on January 8, 2014 and January 23, 2014). (Ex. 5, 6

to Opp.).

C. Plaintiff Files His Health Care Liability Claim

Plaintiff timely filed his health care liability claim against Dr. Carcamo on

November 20, 2013. (POP at 1). Plaintiff did not sue Dr. Botla within two years

of Dr. Botla’s care and treatment of Plaintiff – he did not sue Dr. Botla until March

3, 2014. (P1AOP at 1).

D. Dr. Botla Moves for Summary Judgment on Limitations

Dr. Botla filed a traditional motion for summary judgment on his affirmative

defense of limitations. (Botla MSJ at 1-13). Dr. Botla asserted that the defective

medical authorization provided to Dr. Carcamo did not trigger the 75-day tolling

period in section 74.051(c) and that, as a result, Plaintiff had to have sued Dr. Botla

2 Dr. Botla does not concede that these authorizations were sufficient.

8 before December 17, 2013 to be within limitations. (Id. at 1-2). Dr. Botla argued

alternatively that, if the trial court found the original medical authorization

sufficient, the extended limitations period (two years and 75 days) expired on

March 2, 2014, and, because Plaintiff did not sue Dr. Botla until March 3, 2014,

limitations barred his lawsuit. (Id. at 2).

Plaintiff filed his Opposition to Defendant Ravi Botla, M.D.’s Motion for

Summary Judgment, arguing a different accrual date applied to Plaintiff’s claim

against Dr. Botla (December 18, 2011), that he provided timely notice to Dr.

Carcamo within the two-year period, and that the original medical authorization

substantially complied with section 74.052 and was sufficient to trigger the 75-day

tolling provision of section 74.051(c). (Opp. at 1-6). Plaintiff also argued that, if

limitations did expire on Sunday, March 2, 2014, rule 4 of the Texas Rules of Civil

Procedure and section 16.072 of the Texas Civil Practice & Remedies Code

extended his deadline to file suit against Dr. Botla until Monday, March, 3, 2014.

(Id. at 6-7).

E. Trial Court Conducts Hearing on Dr. Botla’s Motion

The trial court, the Hon. Peter Sakai, conducted a hearing on Dr. Botla’s

motion on September 16, 2014, and he invited the parties to submit additional

arguments supportive of their respective positions. Both Plaintiff and Dr. Botla

9 filed supplemental letter briefs, on September 29, 2014 and October 1, 2014,

respectively.

On October 10, 2014, the trial court advised the parties of its rulings via

letter (i.e., denying Dr. Botla’s motion and granting Dr. Botla’s request to permit

an immediate appeal from the trial court’s Order) and requested preparation of an

appropriate order. (TC letter ruling). On January 22, 2015, the trial court signed

its Order Denying Motion for Summary Judgment and for Severance of Defendant

Ravi Botla, M.D. and Granting Permission to Appeal. (Apx. Tab A). The trial

court found “three controlling questions of law as to which there is a substantial

ground for difference of opinion” (see Issues Presented, supra), and the trial court

made the following substantive rulings on these legal issues in the Order:

1. The original medical authorization was sufficient to trigger the 75- day tolling provision in section 74.051(c), despite its wording authorizing disclosure only to Plaintiff’s counsel’s law firm and its failure to identify all of Plaintiff’s health care providers for the prior five years;

2. Dr. Botla had standing to challenge the defective medical authorization provided to Dr. Carcamo3 and to assert it was insufficient to trigger the limitations tolling provision; and

3. Dr. Botla provided care on both December 17 and 18, 2011, such that to the extent Plaintiff establishes any negligent act or omission on December 18, 2011 or thereafter, Plaintiff timely filed his petition against Dr. Botla on March 3, 2014. Alternatively, to the extent that

3 Dr. Botla agrees with this ruling and will not challenge it if this Court grants permission for him to appeal.

10 December 17, 2011 triggers the applicable limitations period, tolling extended that period to March 2, 2014 and rule 4 of the Texas Rules of Civil Procedure and section 16.072 of the Texas Civil Practice & Remedies Code applied to extend limitations through Monday, March 3, 2014, irrespective of section 74.002 and the “notwithstanding any other law” language of section 74.251, and Plaintiff’s petition against Dr. Botla was timely filed.

(Apx. Tab A at 1-3). In addition, the trial court found that an immediate appeal of

the Order may materially advance the ultimate termination of the litigation

because: (1) if the Order is reversed on grounds that the medical authorization did

not trigger the 75-day tolling provision, Plaintiff’s claim against Dr. Botla would

be barred by limitations and dismissed with prejudice; and (2) even if the medical

authorization did trigger the 75-day tolling provision, Plaintiff’s claim may be

barred by limitations if rule 4 and section 16.072 do not extend limitations from

Sunday, March 2, 2014 to Monday, March 3, 2014. (Id. at 3). And, the trial court

granted permission to Dr. Botla to pursue an interlocutory appeal of the Order,

pursuant to section 51.014(d) of the Texas Civil Practice & Remedies Code. (Id.).

VI. SUMMARY OF THE ARGUMENT

This Court should accept Dr. Botla’s appeal. The trial court’s Order

presents two controlling issues of law on which there are substantial grounds for

differences of opinion. The first arises out of Dr. Botla’s challenge to Plaintiff’s

section 74.052(c) medical authorization, and the dispute is whether it had to track

the precise language and requirements of the statute (as multiple appellate courts

11 recognize), or whether mere “substantial compliance” with the statutory requisites

is sufficient (as fewer appellate courts have concluded) to constitute proper notice

that triggers the 75-day tolling provision in section 74.051(c). The trial court ruled

that Plaintiff’s authorization, which did not track the language of and otherwise

comply with section 74.052(c), was nonetheless sufficient to trigger the tolling

provision. Resolution of this issue is material (if not critical) in this case because,

if Dr. Botla is correct, the defective medical authorization did not trigger the 75-

day tolling provision, limitations expired in December 2013, and Plaintiff’s claim

filed against Dr. Botla in March 2014 is time-barred.

The second issue assumes, for argument’s sake, that Plaintiff’s medical

authorization was sufficient to trigger the 75-day tolling provision of section

74.051(c), thereby giving Plaintiff an additional 75 days to sue Dr. Botla. Dr.

Botla asserts Plaintiff’s claim accrued on December 17, 2011, the date of the

alleged tort (recommending a colonoscopy and colon prep for a patient with a

gastrointestinal obstruction), such that (a) Plaintiff had to commence his claim by

March 2, 2014 (two years and 75 days later) to be timely; and (b) Plaintiff’s claim

filed on March 3, 2014 is barred by limitations because no other law, statute, or

rule can apply in a health care liability claim to extend the absolute limitations

deadline contained in section 74.251. Plaintiff argued Dr. Botla was negligent on

December 17 and 18, 2011, such that his claim accrued on the last day of

12 treatment, at least by December 18, 2011, and he timely filed his claim on March

3, 2014.

The trial court ruled that, if Plaintiff establishes a negligent act or omission

by Dr. Botla on December 18, 2011 or thereafter, his claim against Dr. Botla filed

on March 3, 2014 is timely; alternatively, the court ruled, if Plaintiff’s claim

accrued on December 17, 2011, rule 4 of the Texas Rules of Civil Procedure and

section 16.072 of the Texas Civil Practice & Remedies Code applied to extend the

limitations deadline from Sunday, March 2, 2014 to Monday, March 3, 2014 and,

thus, Plaintiff timely sued Dr. Botla. This legal issue involving statutory

interpretation is a matter of first impression under Texas law and, thus, should be

considered a controlling question of law on which there is substantial ground for

difference of opinion. Resolution of this issue also is material (if not critical) in

this case because, if Dr. Botla is correct, Plaintiff’s claim against him is barred by

limitations.

The trial court’s Order presents issues that meet the statutory criteria for a

permissive appeal. This Court should accept this appeal so that the litigants and

the courts do not expend time, energy, and resources in proceeding through a trial,

only to have a judgment subsequently reversed on appeal because limitations

barred Plaintiff’s claim against Dr. Botla.

13 VII. ARGUMENT

A. Standards for Permissive Interlocutory Appeals

Generally, an order denying a summary judgment motion is not appealable

because it is an interlocutory order. E.g., Gulley v. State Farm Lloyds, 350 S.W.3d

204, 206 (Tex. App.—San Antonio 2011, no pet.). An interlocutory order that

does not dispose of all issues against all parties is not immediately appealable,

except in situations expressly authorized by statute. Id.

Section 51.014 of the Civil Practice and Remedies Code designates the civil

orders that may be appealed on an interlocutory basis, and subsection (d) of section

51.014 permits an interlocutory appeal of an otherwise non-appealable order, such

as denial of a summary judgment motion:

(d) On a party's motion or on its own initiative, a trial court in a civil action may, by written order, permit an appeal from an order that is not otherwise appealable if:

(1) the order to be appealed involves a controlling question of law as to which there is a substantial ground for difference of opinion; and

(2) an immediate appeal from the order may materially advance the ultimate termination of the litigation.

TEX. CIV. PRAC. & REM. CODE § 51.014(d). Upon the trial court’s certification that

its order meets these statutory requirements, the court of appeals may accept an

appeal permitted by section 51.014(d). See TEX. CIV. PRAC. & REM. CODE §

51.014(f).

14 Texas courts have recognized that, when the legal issue addresses the statute

of limitations, that issue presents a controlling question of law. See, e.g., Gale v.

Lucio, 445 S.W.3d 849, 853 (Tex. App.—Houston [1st Dist.] 2014, pet. filed); see

also BNSF Ry. Co. v. Acosta, No. 08-13-00268-CV, 2014 WL 5794620, at *2

(Tex. App.—El Paso, Nov. 7, 2014, no. pet.). Likewise, Texas courts have

recognized that a substantial ground for difference of opinion may occur if the

issue is one of first impression (i.e., appellate courts have not addressed the issue

previously). See, e.g., Belehu v. Lawniczak, 437 S.W.3d 913, 915 (Tex. App.—

Houston [14th Dist.] 2014, pet. filed) (issue of first impression involving statutory

interpretation); Certain Underwriters at Lloyd’s of London Subscribing to Policy

Number: £FINFR0901509 v. Cardtronics, Inc., 438 S.W.3d 770, 774, 778 (Tex.

App.—Houston [1st Dist.] 2014, no pet.) (no other court had construed insurance

policy language at issue). Accordingly, as explained more fully below, the issues

Dr. Botla desires to have reviewed by this Court meet the criteria for a permissive

appeal under section 51.014(d) of the Texas Civil Practice & Remedies Code, and

Dr. Botla urges the Court to grant him permission to appeal from the interlocutory

Order.

15 B. Controlling Question of Law No.1: Whether Plaintiff’s Original Medical Authorization was Legally Sufficient to Trigger the 75- Day Tolling Provision in Section 74.251(c)

A Chapter 74 claimant may extend the absolute two-year statute of

limitations by 75 days by complying with the statute’s pre-suit notice provisions:

(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.

****

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

TEX. CIV. PRAC. & REM. CODE §§ 74.051(a), (c). To toll the statute of limitations

pursuant to Chapter 74, a plaintiff must provide both the statutorily required notice

and the statutorily required authorization form. Jose Carreras, M.D., P.A. v.

Marroquin, 339 S.W.3d 68, 74 (Tex. 2011). Together, the notice and medical

authorization form encourage pre-suit investigation, negotiation, and settlement of

health care liability claims. See id. at 73. If the authorization does not accompany

the notice, the claimant may not receive the benefit of the notice – tolling. Id. at

72.

16 Here, Plaintiff provided a form of a medical authorization to Dr. Carcamo,

but not in the form required by section 74.052(c). Dr. Botla argued that Plaintiff’s

medical authorization did not follow the precise language in section 74.052 and

only authorized Dr. Carcamo to obtain and disclose Plaintiff’s protected health

information (“PHI”) to Mauze Law Firm (Plaintiff’s counsel). (Apx. Tab B at 1).

It did not allow Dr. Carcamo to obtain Plaintiff’s PHI to investigate and evaluate

Plaintiff’s health care liability claim, and it did not list all of Plaintiff’s medical

providers for five years prior to the incident (including Dr. Botla). (See id.; Botla

MSJ at 9-10).

Dr. Botla argued that Texas courts require the medical authorization to track

the precise text included in section 74.052(c), and that an authorization that permits

the release of a patient’s medical records only to the patient’s attorney is defective

and does not trigger the tolling provision. (Botla MSJ at 8-9). E.g., Cantu v.

Mission Reg. Med. Ctr., No. 13-12-00568-CV, 2014 WL 1879292, *4 (Tex. App.–

Corpus Christi, May 8, 2014, no pet.) (mem. op.); see also Brannan v. Toland, No.

01-13-00051-CV, 2013 WL 4004472, at *2-3 (Tex. App.—Houston [1st Dist.],

Aug. 6, 2013, pet. denied) (mem. op.). Dr. Botla also argued that the statute and

Texas courts require the authorization to list the patient’s physicians and health

care providers for the previous five years, or it does not satisfy the purposes of the

statute. (Botla MSJ at 8-9, 10). E.g., Mitchell v. Methodist Hosp., 376 S.W.3d

17 833, 837 (Tex. App.—Houston [1st Dist.] 2012, pet. denied); Nicholson v. Shinn,

No. 01-07-00973-CV, 2009 WL 3152111, at *5-6 (Tex. App.—Houston [1st Dist.],

Oct. 1, 2009, no pet.) (mem. op.).

Plaintiff, on the other hand, argued that his medical authorization

substantially complied with section 74.052 and was sufficient to trigger the 75-day

tolling period because it fulfilled the purposes of the notice statute. (Opp. at 5-6).

E.g., Mock v. Presbyterian Hosp. of Plano, 379 S.W.3d 391, 395 (Tex. App.—

Dallas 2012, pet. denied); Rabatin v. Kidd, 281 S.W.3d 558 (Tex. App.—El Paso

2008, no pet.). Despite making this argument, Plaintiff gave Dr. Carcamo not one,

but two, revised authorizations (although he provided both after the expiration of

the absolute two-year statute of limitations and, thus, they were ineffective to

trigger the tolling provision). (Exs. 5, 6 to Opp.). Plaintiff also argued the

authorization was sufficient because Dr. Carcamo was able to obtain Plaintiff’s

medical records from Nix Hospital using the original medical authorization.

(PSLB at 1).

The trial court essentially agreed with Plaintiff’s arguments and case law,

ruling that Plaintiff’s original medical authorization was sufficient to trigger the

75-day tolling provision in section 74.051(c). (Apx. Tab A at 2). However, as

explained above, the legal issue of whether a medical authorization must

specifically comply with the language and requirements of section 74.052(c), or

18 whether “substantial compliance” with the statutory requirements is sufficient to

trigger the 75-day tolling provision, is a question of Texas law as to which there

are substantial grounds for differences of opinion. Accordingly, Dr. Botla urges

this Court to grant permission to appeal the trial court’s Order so that this Court

can interpret the statute, determine whether strict or substantial compliance is the

test, determine whether Plaintiff’s original medical authorization meets the Court’s

test, and determine whether the medical authorization triggered the 75-day tolling

provision as to Plaintiff’s claim against Dr. Botla.

C. Controlling Question of Law No. 2: Whether Dr. Botla Had Standing to Challenge the Medical Authorization Provided to Another Defendant

Plaintiff asserted in the trial court that Dr. Botla did not receive Chapter 74

notice and could not have obtained any medical records of Plaintiff with the

medical authorization provided to Dr. Carcamo; thus, Dr. Botla lacked standing to

argue that the medical authorization provided to Dr. Carcamo is insufficient. (Opp.

at 4). The trial court disagreed with Plaintiff and ruled that a defendant physician

who does not receive a section 74.051(a) notice letter and medical authorization

has standing to complain that an authorization provided to another defendant in the

same lawsuit is insufficient to trigger the 75-day tolling provision. (Apx. Tab A at

2). Dr. Botla agrees with this ruling and does not intend to challenge it if this

Court permits the appeal from the Order.

19 D. Controlling Question of Law No. 3: Whether a Statute or Civil Procedure Rule Can Trump Chapter 74’s Limitation Provision and Extend the Limitations Deadline from a Sunday to a Monday

On this third issue, the trial court ruled: (a) that Dr. Botla provided care to

Plaintiff on both December 17, 2011 and December 18, 2011; (b) to the extent

Plaintiff proves any negligent act or omission occurred on December 18, 2011,

Plaintiff timely sued Dr. Botla on March 3, 2014 (two years and 75 days later); (c)

to the extent Plaintiff’s claim accrued on December 17, 2011, limitations expired

on Sunday, March 2, 2014; (d) rule 4 of the Texas Rules of Civil Procedure and

section 16.072 of the Texas Civil Practice & Remedies Code apply in this case and

extended the limitations period through Monday, March 3, 2014, irrespective of

the “notwithstanding any other language” of section 74.251 and the conflict

provision of section 74.002; and (e) Plaintiff timely sued Dr. Botla even if his

claim accrued on December 17, 2011. (Apx. Tab A at 2-3).

Dr. Botla contests the trial court’s statutory interpretation on this issue

(relating to a claim that accrued on December 17, 2011). Section 74.251(a)

provides, in relevant part:

Notwithstanding any other law and subject to Subsection (b),4 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

4 Subsection (b) contains the statute of repose.

20 the claim or the hospitalization for which the claim is made is completed. . . .

TEX. CIV. PRAC. & REM. CODE § 74.251(a) (emphasis added). In addition, section

74.002 provides that, “In the event of a conflict between this chapter and another

law, including a rule of procedure or evidence or court rule, this chapter controls to

the extent of the conflict.” Id. § 74.002.

The Texas Supreme Court has held that the two-year statute of limitations in

section 74.251(a) (and its predecessor, section 10.01 of article 4590i) is “absolute.”

E.g., Molinet v. Kimbrell, 356 S.W.3d 407, 415 (Tex. 2011); see also Bala v.

Maxwell, 909 S.W.2d 889, 892-93 (Tex. 1995) (per curiam) (By including the

“notwithstanding any other law” language, “the Legislature unequivocally

expressed its intent that, when the time limitations of section 10.01 conflict with

another law, section 10.01 governs.”). The Texas Supreme Court also has held that

the malpractice act’s limitations provision trumps other limitations provisions in

Chapters 16 and 33 of the Texas Civil Practice & Remedies Code that would

operate to extend the time to file a health care liability claim. Molinet, 356 S.W.3d

at 413-44 (section 33.004); Bala, 909 S.W.2d at 892-93 (section 16.003); see also

Hill v. Milani, 686 S.W.2d 610, 611 (Tex. 1985) (sec. 10.01 trumped absence-

from-the-state tolling provision in former art. 5537).

Given this law, Dr. Botla argued that civil procedure rule 4 (which extends

time periods that end on a weekend or legal holiday) and section 16.072 (which

21 extends limitation periods that end on a weekend or legal holiday) conflict with

section 74.251(a); therefore, the limitations provision of Chapter 74 controls,

limitations on Plaintiff’s claim expired on March 2, 2014 (two years and 75 days

after December 17, 20115), and Plaintiff’s claim against Dr. Botla filed on March

3, 2014 was untimely. (Botla MSJ at 10-11; Reply at 8-9; DSLB at 4-5). Plaintiff,

on the other hand, argued that the “notwithstanding any other law” language in the

limitations provision does not foreclose (or trump) rules that are procedural in

nature, citing Chilkewitz v. Hyson, 22 S.W.3d 825 (Tex. 1999) (construing civil

procedure rule 28 regarding suits in assumed name). (Opp. at 6-7). Plaintiff

argued that rule 4 and section 16.072 were procedural in nature and, thus, applied

to extend the limitations deadline to March 3, 2014. (See id.).

This issue presents a controlling question of law as to which there is a

substantial ground for difference of opinion because the parties presented opposing

legal arguments, the issue involves a statute of limitations, and the issue is one of

first impression6 – no Texas court has yet addressed whether rule 4 and section

16.072 apply in health care liability claims to extend the absolute two-year (or two-

year-and-75-day) statute of limitations in section 74.251(a). Accordingly, Dr.

5 Assuming, without conceding, that the medical authorization was sufficient to trigger the 75-day tolling provision. 6 See Belehu, 437 S.W.3d at 915; Gale, 445 S.W.3d at 853; Cardtronics, Inc., 438 S.W.3d at 774, 778.

22 Botla urges this Court to grant permission to appeal the trial court’s Order so that

this Court can interpret the statute, determine whether section 74.251 trumps rule 4

and section 16.072, and determine whether, if Plaintiff’s claim accrued on

December 17, 2011 and if the medical authorization was sufficient to trigger the

75-day tolling provision, Plaintiff timely sued Dr. Botla within two years and 75

days.

E. Lastly, Immediate Appeal of the Order Will Materially Advance the Ultimate Termination of the Litigation

Finally, Dr. Botla asserts that immediate appeal of the Order will materially

advance the ultimate termination of the litigation. When the controlling legal

issues address the statute of limitations, those issues are material to the ultimate

resolution or termination of the litigation. Gale, 445 S.W.3d at 853.

Here, if Dr. Botla is correct on the first legal issue (i.e., the medical

authorization was defective and did not trigger the 75-day tolling provision),

Plaintiff’s health care liability claim is barred by the statute of limitations and will

be dismissed with prejudice. Alternatively, if the medical authorization was

sufficient to add 75 days to the absolute two-year limitation period, Plaintiff did

not sue Dr. Botla until two years and 76 days from the date of the tort and, thus, his

claim still would be barred by limitations, unless this Court determines that rule 4

of the Texas Rules of Civil Procedure and section 16.072 of the Texas Civil

Practice & Remedies Code do not conflict with Chapter 74’s absolute statute of

23 limitations and apply to extend the limitations period by one day, from Sunday,

March 2, 2013, to Monday, March 3, 2013.

If this Court does not accept the appeal, but Appellant’s arguments are

ultimately vindicated via a post-trial appeal, the litigants and the courts will have

expended needless time, energy, and resources in a trial of this case. Thus, this

Court should accept the appeal in the interest of judicial economy.

THEREFORE, Appellant Ravi Botla, M.D. respectfully prays this Court

grant his Petition for Permission to Appeal the Order in all respects, and grant him

all such other and further relief as this Court deems just.

24 Respectfully submitted,

COOPER & SCULLY, P.C.

By: /s/Diana L. Faust DIANA L. FAUST diana.faust@cooperscully.com Texas Bar No. 00793717 MICHELLE E. ROBBERSON michelle.robberson@cooperscully.com Texas Bar No. 24073089

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

EVANS, ROWE & HOLBROOK, P.C.

BRETT B. ROWE bbrowe@evans-rowe.com Texas Bar No. 17331750 NICKI K. ELGIE nelgie@evans-rowe.com Texas Bar No. 24069670 10101 Reunion Place, Suite 900 San Antonio, Texas 78216 TEL: (210) 340-6555 FAX: (210) 340-6664

ATTORNEYS FOR APPELLANT

25 CERTIFICATE OF COMPLIANCE

I hereby certify that we prepared this Petition using Microsoft Word 2003, which indicated that the total word count (exclusive of those items listed in rule 9.4(i)(1) of the Texas Rules of Appellate Procedure, as amended) is 4,456 words.

/s/ Diana L. Faust DIANA L. FAUST

CERTIFICATE OF SERVICE

I hereby certify that I served a true and correct copy of this Petition upon the following counsel of record by the method indicated, on this 6th day of February, 2015:

George W. Mauze, II VIA EFILE gmauze@mauzelawfirm.com Mauze Law Firm 2632 B4roadway, Suite 401S San Antonio, Texas 78215 Counsel for Appellee

/s/Diana L. Faust DIANA L. FAUST

26 ORAL ARGUMENT REQUESTED NO.

RAVI BOTLA, M.D., Appellant, v. SALVADOR DEL TORO, JR., Appellee.

On Appeal from the 131st District Court Bexar County, Texas, Cause No. 2013-CI-19135 (Hon. Peter Sakai)

APPENDIX TO APPELLANT’S PETITION FOR PERMISSION TO APPEAL ORDER DENYING MOTION FOR SUMMARY JUDGMENT

In compliance with rule 28.3 of the Texas Rules of Appellate Procedure,

Appellant Ravi Botla, M.D. submits this Appendix to his Petition for Permission to

Appeal Order Denying Motion for Summary Judgment, containing the following

items:

Tab A: January 22, 2015 Order Denying Motion for Summary Judgment and for Severance of Defendant Ravi Botla, M.D. and Granting Permission to Appeal

Tab B: Plaintiff’s June 11, 2013 notice letter to Dr. Carcamo and his June 7, 2013 Medical Authorization

27 Tab C: November 20, 2013 Plaintiff’s Original Petition

Tab D: March 3, 2014 Plaintiff’s First Amended Original Petition

Tab E: December 31, 2014 Plaintiff’s Fourth Amended Original Petition

Tab F: August 14, 2014 Motion for Summary Judgment and for Severance of Defendant, Ravi Botla, M.D. (with exhibits)

Tab G: September 4, 2014 Plaintiff’s Opposition to Defendant Ravi Botla, M.D.’s Motion for Summary Judgment (with exhibits)

Tab H: September 11, 2014 Reply to Plaintiff’s Opposition to Ravi Botla, M.D.’s Motion for Summary Judgment

Tab I: September 29, 2014 Supplemental Letter Brief of Plaintiff

Tab J: October 1, 2014 Supplemental Letter Brief of Defendant Ravi Botla, M.D.

Tab K: October 10, 2014 Letter Ruling by Judge Peter Sakai on Defendant Ravi Botla, M.D.’s Motion for Summary Judgment

D/920583v7

28 APPENDIX TAB “A” h4:?1) , TrAPANIPP3 - egtilLED 1-410 P0002/0005 F-835 01-22-' 15 '15:47 FROM- EvaPO •

2013C119135 -0131 CAUSE NO. 2013-CI-19135

„SALVADORDEL-TORO,JR, • • • ----- IN,THE-DISTRICT'COURT'''--- •

VS. 131ST JUDICIAL DISTRICT

GERARDO E. CARCAMO, M.D. AND § RAVI BOTLA, M.D, BEXAR COUNTY, TEXAS

ORDER DENYING MOTION FOR SUI rA ige OF "3mLauLik 1 TO APPEAL. On the 16th day of September, 2014 and 6th day of January, 2015, came on to

be heard the Motion for Summary Judgment and for Severance of Defendant Ravi

Botta, M.D. The Court, having considered the Motion, Plaintiff's Opposition,

Defendant's Reply, letter briefings, pleadings timely filed, the summary judgment

evidence, and argument of counsel, hereby DENIES the Motion for Summary

Judgment and for Severance for the reasons more specifically set forth below.

The Court hereby GRANTS Defendant's motion for permission to appeal this

Order pursuant to Texas Civil Practice and Remedies Code Section 51.014(d), as

to the legal issues and substantive rulings contained herein,

THE COURT FINDS that this Order involves three controlling questions of law as

to which there is a substantial ground for a difference of opinion:

1. Was Plaintiffs medical authorization attached to his Chapter 74 notice letter sufficient to toll the statute of limitations pursuant to Section 74.051(c) of the Texas Civil Practice and Remedies Code?

2, Does a defendant health care provider or physician, who did not receive a notice letter and authorization under section 74,051(a) of the Texas Civil Practice and Remedies Code, have standing to complain that an authorization provided to another health care provider or physician named and sued as a defendant in the same lawsuit is insufficient to toll the statute of limitations 4 pursuant to Section 74.051(c)? 3 2 6

G $regglunfl413 5€6F41 LED 1-410 PO003/0005 F-835 01-22-' 15 15:47 FROM- EvaPS?

3. In light of the "notwithstanding any other law" language of Texas Civil Practice and Remedies Code Section 74.251 and the conflict provision of Section 74,002,does Rule_4_ of .the Texas Rules of Civil Procedure and Texas-Civil Practice and Remedies Code Section 16.072 nonetheless operate to extend the statute of limitations in a Chapter 74 health care liability claim when the last day of the applicable limitations period falls on a weekend or legal holiday?

In denying Defendant Ravi Botla, M,D.'s Motion for Summary Judgment through

this Order, the Court makes the following substantive rulings on the above-stated legal

questions presented:

1. Plaintiff's medical authorization attached to his Chapter 74 notice letter was sufficient to loll the statute of limitations pursuant to Section 74.051(c) of the Texas Civil Practice and Remedies Code, The language in Section A of the Authorization providing that Dr. Gerardo E. Carcamo, M.D. could "obtain and disclose (within the parameters set out below) to Mauze Law Firm" did not render the authorization insufficient to toll the statute of limitations as to Defendant Ravi Botla, M.D, because Defendant Gerardo E. Carcamo, M.D. requested and obtained medical records with said authorization. Likewise, Plaintiff's failure in Section B.2 of the Authorization to identify some of the physicians or health care providers who examined, evaluated, or treated Plaintiff or a pharmacy which filled prescriptions during a period commencing the five years prior to the incident making the basis of Plaintiff's claim (The People's Clinic, which performed an employment physical; Seton Medical Center; HEB Pharmacy) did not render the authorization insufficient to toll the statute of limitations.

2. A defendant health care provider or physician who does not receive a Section 74.051(a) notice letter and medical authorization does have standing to complain that an authorization provided to another health care provider or physician named and sued in the same lawsuit is insufficient to toll the statute of limitations as to the challenging defendant health care provider or physician.

3. Defendant Ravi Botla, M.D. provided care on both. December 17th and 18th, 2011. To the extent that Plaintiff establishes any negligent act or omission on December 18, 2011, or thereafter, the petition was flied timely on March 3, 2014, However, to the extent that December 17, 2011 triggers the applicable limitations period, Section 74,051(c) operates to toll that period through Sunday, March 2, 2014. Rule 4 of the Texas Rules of Civil Procedure and Section 16.072 of the Civil Practice and Remedies Code apply and their operation extends the applicable statute of limitations period through Monday, March 3, 2014, irrespective of the "notwithstanding any other law" language of Section 74.251 and the conflict provision of Section 74.002 of the Texas Civil Practice and

2 01-222 15 15:47 FROM- Eva9 roiSPANIAD3tilWegli LED 1-410 P0004/0005 F-835

Remedies Code, Thus, Plaintiff's petition naming Ravi Botla, M.D. as a defendant was timely filed.

THE COURT FURTHER FINDS that an immediate appeal of this Order may

materially advance the ultimate termination of the litigation because if this Order is

reversed (1) Plaintiff's claim against Defendant Ravi Botla, M.D. will be barred by the

statute of limitations and therefore dismissed with prejudice if Plaintiffs medical

authorization failed to toll the applicable limitations period; and (2) even assuming the

medical authorization was sufficient to trigger tolling of limitations pursuant to section

74.051(c) of the Texas Civil Practice and Remedies Code, Plaintiff's claim against

Defendant Ravi Botla, M.D. may be barred by the statute of limitations If Section

74,251's period of limitations shall not be extended by operation of Rule 4 of the Texas

Rules of Civil Procedure and Section 16.072 of the Texas Civil Practice and Remedies

Code,

IT IS FURTHER ORDERED that Defendant Ravi Botta, M.D. is granted

permission to pursue an interlocutory appeal of this Order pursuant to Texas Civil

Practice and Remedies Code Section 51,014(d). 0 IT IS SO ORDERED.

Signed this date:

V 0 APPROVED AS TO FORM ONLY:

MAUZE LAW FIRM 2632 Broadway, Suite 401S San Antonio, Texas 78215

3 rolgIMITP3 6litfi LED 1-410 P0005/0005 F-835 01-22-'15 15:47 FROM- EvaPP

Phone: (210) 225-6262 Fax: (210) 354-3909 Email uze •► mauz-ta rm.c

ORGE W. M IZE, II State Bar No, 3238800

ATTORNEY FOR PLAINTIFF

EVANS, ROWE & HOLBROOK, P.C. 10101 Reunion Place, Suite 900 San Antonio, Texas 78216 Phone: (210) 340-6555 Fax: (210) 340-6664 Email: bbroweA§L.Lats-row com Email: netoleaevati$-rowe.com.

By: BRETT B. RSWE State Bar No. 17331750 NICK! K. ELGIE State Bar No. 24069670

ATTORNEYS FOR DEFENDANT RAVI BOTLA, M.D.

4 APPENDIX TAB “B” AUZ LAW F GEORGE W. MAUZE, II, ATTORNEY 2632 BROADWAY SUITE 401 South SAN ANTONIO, TEXAS 78215 TELEPHONE 210.225.6262 FACSIMILE'210.354,3909 EMAIL: gmauze@mauzelowfIrm.com WWW.MAUZELAWFIRM.COM

June 11, 2013

PERSONAL L CONFIDENTIAL CMR]RR #7012-3050-0002-3901-1372 Gerardo E. Carcamo, M.D. 414 Navarro, Suite 810 San Antonio, TX 78205

Re: Salvador Del Toro, Jr.

Dear Dr. Carcamo:

Please be advised that our law firm has been retained by Salvador Del Toro, Jr. to represent him in any and all claims he may have against you arising from the facts stated herein.

On or about December 15, 2011, Mr. Del Toro was admitted to Nix Hospital after being evaluated by Dr. James Lackey with the Riverwalk Clinic for increased lower abdominal pain, nausea, and vomiting. After a CT scan obtained by the Riverwalk Clinic showed findings of ". . a severely diseased sigmoid colon with underlying diverticular burden and a stricture," he was referred to Nix Hospital where he was further evaluated and assessed by Bridget K. Fiechtner, M.D. Based on Dr. Fiechtner's assessment and CT scan findings, Mr. Del Toro was admitted for further treatment and evaluation and discussed the patient's case with you. On December 16, 2011 Mr. Del Toro was seen in consultation by you. On the evening of December 17, 2011, you ordered and Mr. Del Toro was given GoLYTELY for gastrointestinal prep prior to colonoscopy. Shortly thereafter, he began having worsening abdominal pain throughout the evening with vomiting. On December 18, 2011 at approximately 5:00 o'clock a.m., Mr. Del Toro had worsening and change in the quality of his pain. He was sent emergently for a CT of the abdomen and pelvis which revealed the presence of free air consistent with perforation of a hollow viscus. You were called and Mr. Del Toro was emergently taken to the operating room on December 18, 2011. Due to the perforation of his colon, you immediately performed a right hemicolectomy, sigmoidectomy, and end-colostomy with Hartmann pouch and wound VAC placement. On December 21, 2011, Mr. Del Toro underwent another surgery by you for washout and wound VAC change. Mr. Del Toro remained hospitalized until December 30, 2011. Since then, Mr. Del Toro has necessitated frequent medical attention, necessitated and undergone two additional corrective surgeries.

The complications associated from the perforation of his colon which you "expected", have caused him severe pain and mental anguish, severe discomfort, disfigurement, and financial hardship. Although, you clearly knew of his partial obstruction in his colon based on the CT findings, you ordered GoLYTELY which is contraindicated in a patient suspected of having gastrointestinal obstruction. You further state in your December 18, 2011, operative report, that "Unfortunately he was unable to have a bm 'as expected' and he perforated.".

F, c, EXHIBITii....

[ i's : . : 241623117621 .71..1-2,-.7.1...,,,.....1......,...- -' Dr. Carcamo June 11, 2013 Page 2

The foregoing acts and omissions to act constitute negligence. As a result of such negligence, Mr. Del Toro has suffered severe medical complications associated with his perforated colon.

In accordance with Chapter 74.051(a) of the Texas Civil Practices & Remedies Code, this letter constitutes your sixty (60) days notice that Salvador Del Toro, Jr. intends to assert health care liability claims against you. If this matter is not resolved within sixty (60) days, then a lawsuit will be filed.

In an effort to settle this claim without the necessity of filing a lawsuit, my client hereby tenders an offer of settlement to you in the amount of Eight Hundred Thousand Dollars ($800,000.00), such consisting of $250,000.00 for noneconomic damages plus economic damages including loss of income, and health care expenses in the amount of $550,000.00.

Attached hereto is a release for medical records in accordance with §74.052 of the Texas Civil Practice & Remedies Code, Additionally, please accept this letter as our request for copies of any and all medical records, diagnostic studies, whether digital, or film. Enclosed herewith is a HIPAA release authorizing you to provide true, correct, and complete copies of same.

The standard professional liability insurance policy requires that the insured promptly give the insurance carrier notice of any claim. If you or your insurance carrier wish to discuss an amicable and expedient resolution of this claim, then please do not hesitate to give me a call.

Very truly yours,

George W. Mau4' GWM/ag enclosures xc: Mr. Salvador Del Toro, Jr. AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION PURSU NT TO TEX. CIV. PRAC. & REM. CODE, CHAPTER 74 § 74.052

A. I, Salvador Del Toro, Jr. (name of patient or authorized representative), hereby authorize Gerardo E. Carcamo, M.D. (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) to Mauze Law Firm 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.

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 Salvador Del Toro, Jr. (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:

Nix Hospital, 414 Navarro, San Antonio, TX 78205 Gerardo E. Carcamo, M.D., 414 Navarro, Suite 830, San Antonio, TX 78205

This authorization shall extend to any additional physicians or health care providers that may in the future evaluate, examine, or treat Salvador Del Toro, Jr. (patient) for injuries alleged in connection with the claim made the basis of the attached Notice of Health Care Claim; and

2. The health information in the custody of the following physicians or health care providers who have examined, evaluated, or treated Salvador Del Toro, Jr. (patient) during a period commencing five years prior to the incident made the basis of the accompanying Notice of Health, Care Claim:

Riverwalk Clinic, 414 Navarro, Suite 809, San Antonio, TX 78205 Val Verde Regional Medical Center, 801 Bedell Avenue, Del Rio, TX 78840 Antonio Cadena, M.D., 2201 North Bedell, Suite A, Del Rio, TX 78840

C. Excluded Health Information—the following constitutes a list of physicians or health care providers possessing health care information concerning Salvador Del Toro, Jr. (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 Salvador Del Toro, Jr. (patient) arising out of the claim made the basis of the accompanying Notice of Health Care Claim: NONE.

D. The persons or class of persons to whom the health information of Salvador Del Toro, Jr. (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 Salvador Del Toro, Jr. (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 Salvador Del Toro, Jr. (patient); 3. Any consulting or testifying experts employed by or on behalf of Gerardo E. Camara°, M.D. (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 Gerardo E. Camaro, M.D. (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; and 5. Any trier of the law or facts relating to any suit filed seeking damages arising out of the medical care or treatment of Salvador Del Toro, Jr. (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

Date: r f3 Sa vador`Del Toro, Jr.

Patient's Name: Salvador Del Toro, Jr. Patient's D.O.B.: 12.25.1973 Patient's SSN: 451.77.9676 APPENDIX TAB “C” 2013-C1-19135 131ST JUDICIAL DISTRICT COURT SALVADOR DEL TORO JR US GERARDO E CARCA DATE FILED: 11/20/2013 SALVADOR DEL TORO, JR. ERIC CRJ16 IN THE DISTI. oi- V. JUDICIAL DISTRICT

GERARDO E. CARCAMO, M.D. BEXAR COUN 1 TEXAS

PLAINTIFF'S ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES Salvador Del Toro, Jr. (hereinafter referred to as "Plaintiff') and files this

petition complaining of Gerardo E. Carcamo, M.D. (hereinafter referred to as "Defendant") and for

cause of action would show unto this Honorable Court as follows:

I. DISCOVERY CONTROL PLAN

Pursuant to Tex. R. Civ. P. 190, discovery in this case is intended to be conducted under

Level 3.

II. PARTIES

Plaintiff, Salvador Del Toro, Jr., at all times relevant to this lawsuit, has been an individual

residing in Del Rio, Val Verde County, Texas.

Defendant, Gerardo E. Carcamo, M.D., is, and at all times relevant to this lawsuit has been, a

physician duly licensed to practice medicine in the State of Texas and resides in Bexar County,

Texas. Defendant may be served with process by certified mail, return receipt requested, to

addressee only at 414 Navarro, Suite 810, San Antonio, Texas 78205.

1 TACases\Del Toro.12041Pleadings\PetitIon.docx III. VENUE AND JURISDICTION

This Court has jurisdiction of this cause because the damages sought are within the

jurisdictional limits of this Court. Venue is proper in Bexar County, Texas in that such is the county

in which the events giving rise to this claim occurred.

IV. FACTUAL BACKGROUND

This lawsuit is founded upon medical negligence committed by Defendant Gerardo E.

Carcamo, M.D. On or about December 15, 2011, Mr. Del Toro was admitted to Nix Hospital after

being evaluated by Dr. James Lackey for increased lower abdominal pain, nausea, and vomiting, A

CT scan was ordered and performed, such reflecting findings of ". . a severely diseased sigmoid

colon with underlying diverticular burden and a stricture". Mr. Del Toro was referred to Nix

Hospital where he was further evaluated and assessed by Bridget K. Fiechtner, M.D. Based on Dr.

Fiechtner's assessment and CT scan findings, Mr. Del Toro was admitted for further treatment and

evaluation. On December 16, 2011, Mr. Del Toro was seen in consultation by Defendant Gerardo E.

Carcamo, M.D. Defendant Gerardo E. Carcamo recommended a colonoscopy. On the evening of

December 17, 2011, Defendant Gerardo E. Carcamo, M.D. ordered, and Mr. Del Toro was

administered, GoLYTELY for gastrointestinal prep prior to colonoscopy. Shortly thereafter, he

began having worsening abdominal pain throughout the evening with vomiting. On December 18,

2011 at approximately 5:00 o'clock a.m., Mr. Del Toro had worsening and change in the quality of

his pain. He was sent emergently for a CT of the abdomen and pelvis which revealed the presence of

free air consistent with perforation of a hollow viscus. Defendant Gerardo E. Carcamo, M.D. was

called and Mr. Del Toro was emergently taken to the operating room on December 18, 2011. 2 Mases\Del Toro.12041PleadingsTetition,docx Defendant Gerardo E, Carcamo, M.D. immediately performed a right hemicolectomy,

sigmoidectomy, and end-colostomy with Hartmann pouch and wound VAC placement. On

December 21, 2011, Mr. Del Toro underwent another surgery by Defendant Gerardo E. Carcamo,

M.D. for washout and wound VAC change. Mr. Del Toro remained hospitalized until December 30,

2011, Thereafter, Mr. Del Toro necessitated two additional corrective surgeries,

The complications associated from the perforation of his colon caused Mr. Del Toro severe

physical pain and mental anguish, physical impairment, disfigurement, and financial losses.

Although Defendant Gerardo E. Carcamo, M.D. clearly knew of the obstruction of the colon based

on the CT findings, Defendant Gerardo E. Carcamo, M.D. ordered GoLYTELY which is

contraindicated in a patient suspected of having gastrointestinal obstruction.

V. NEGLIGENCE OF DEFENDANT

Defendant Gerardo E, Carcamo, M.D. owed a general duty of care to Salvador Del Toro, Jr.,

to provide health care, attention and/or treatment as a reasonably prudent physician would have

under the same or similar circumstances. Such duty required that said Defendant render health care

in conformity with the minimum applicable standard of care for a person under the same or similar

circumstances as Salvador Del Toro, Jr. Said Defendant breached that duty by engaging in the

following acts and/or omissions to act, such constituting negligence:

1. failing to appropriately treat Mr. Del Toro for a severe diseased sigmoid colon with diverticular burden and stricture;

2. failing to consider alternative surgical interventions for Mr, Del Toro who was suspected of having a gastrointestinal obstruction;

ordering GoLYTELY to prepare his colon for a colonoscopy which is contraindicated in a patient suspected of having a gastrointestinal obstruction; and 3 ThCases\Del Toro.1204\PleadingsTetition.docx 4. failing to otherwise provide medical attention, care and/or treatment to a patient in the same or similar condition in accordance with the applicable standard of care.

Such acts and/or omissions to act, whether taken singularly or collectively, constitute a direct

and proximate cause of the injuries and damages of Salvador Del Toro, Jr. for which he seeks

recovery.

VI. DAMAGES

As a direct and proximate cause of the negligence of Defendant Gerardo E. Carcamo, M.D.,

Salvador Del Toro, Jr. has suffered injuries, including severe physical and mental pain and anguish

and disfigurement, which based upon a reasonable degree of medical probability, he will continue to

suffer for many years in the future, if not for the balance of his natural life. Additionally, Mr. Del

Toro suffered physical impairment and a loss of enjoyment of life which, based upon a reasonable

degree of medical probability, he will continue to suffer in the future. Furthermore, he has sustained

a loss of income and/or loss wage earning capacity. As a result of his injuries, Mr. Del Toro has also

incurred substantial reasonable medical and other health care expenses for necessary medical and

health care and, based upon a reasonable degree of medical probability, he will continue to incur

reasonable expenses for necessary medical and health care in the future.

VII. NOTICE

Plaintiff would further show that on or about June 11, 2013, more than sixty (60) days prior

to filing of this cause, lie provided written notice of said claim by certified mail return receipt

requested to Defendant Gerardo E. Carcarno, M.D. Plaintiff otherwise fully complied with the notice

provisions pursuant to Chapter 74.051(a) of the Texas Civil Practices & Remedies Code. A true and

4 TACases\Del Toro.1204\PleadingsTetition.docx correct copy of said notice is attached hereto marked as Exhibit "A" and is incorporated herein by

reference for all purposes.

WHEREFORE, PREMISES CONSIDERED, Plaintiff Salvador Del Toro, Jr. respectfully

prays that Defendant Gerardo E. Carcamo, M.D. be cited to appear and answer herein and that, upon

final trial, Plaintiff have and recover judgment in his favor against Defendant for the following:

1, actual damages within the jurisdictional limits of this Court;

2, pre judgment and post-judgment interest at the maximum rate allowed by law;

3. costs of suit; and

4 such other and further relief at law or in equity, general or special, to which Plaintiff may be justly entitled. •

Respectfully submitted,

MAUZE LAW FIRM 2632 Broadway, Suite 401S San Antonio, Texas 78215 Telephone: 210.225,6262 Facsimile: 210.354,3909

By. G/(eorge W. Maul& II TBC #13238800

T:\Cases\Del Toro.12041PleadingsTetition.docx VIAUZIt _MY F RAF GEORGE W. MAUZE, II, ATTORNEY 2632 BROADWAY SUITE 401 South SAN ANTONIO, TEXAS 78215 TELEPHONE 210.225.6262 FACSIMILE 210.354.3909 EMAIL: gmauze@mauzelawfirm.com VVWWMAUZELAWFIRM.COM

PERSONAL CONFIDENTIAL CMRRR #7012-3050-0002-3901-1372 Gerardo E. Carcamo, M.D. 414 Navarro, Suite 810 San Antonio, TX 78205

Dear Dr. Carcanio:

Please be advised that our law firm has been retained by Salvador Del Toro, Jr. to represent him in any and all claims he may have against you arising from the facts stated herein.

On or about December 15, 2011, Mr. Del Toro was admitted to Nix Hospital after being evaluated by Dr. James Lackey with the Riverwallc Clinic for increased lower abdominal pain, nausea, and vomiting. After a CT scan obtained by the Riverwallc Clinic showed findings of ". . a severely diseased sigmoid colon with underlying diverticular burden and a stricture," he was referred to Nix Hospital where he was further evaluated and assessed by Bridget K. Fiechtner, M.D. Based on Dr. Fiechtner's assessment and CT scan findings, Mr. Del Toro was admitted for further treatment and evaluation and discussed the patient's case with you. On December 16, 2011 Mr. Del Toro was seen in consultation by you. On the evening of December 17, 2011, you ordered and Mr. Del Toro was given GoLYTELY for gastrointestinal prep prior to colonoscopy. Shortly thereafter, he began having worsening abdominal pain throughout the evening with vomiting. On December 18, 2011 at approximately 5:00 o'clock a.m., Mr. Del Toro had worsening and change in the quality of his pain. He was sent emergently for a CT of the abdomen and pelvis which revealed the presence of free air consistent with perforation of a hollow viscus. You were called and Mr. Del Toro was emergently taken to the operating room on December 18, 2011. Due to the perforation of his colon, you immediately performed a right hemicolectomy, sigmoidectomy, and end-colostomy with Hartmann pouch and wound VAC placement. On December 21, 2011, Mr. Del Toro underwent another surgery by you for washout and wound VAC change. Mr. Del Toro remained hospitalized until December 30, 2011. Since then, Mr. Del Toro has necessitated frequent medical attention, necessitated and undergone two additional corrective surgeries.

The complications associated from the perforation of his colon which you "expected", have caused him severe pain and mental anguish, severe discomfort, disfigurement, and financial hardship. Although, you clearly knew of his partial obstruction in his colon based on the CT findings, you ordered GoLYTELY which is contraindicated in a patient suspected of having gastrointestinal obstruction. You further state in your December 18, 2011, operative report, that "Unfortunately he was unable to have a bm 'as expected' and he perforated.". Dr. Chemin June 11, 2013 Page 2

The foregoing acts and omissions to act constitute negligence. As a result of such negligence, Mr. Del Toro has suffered severe medical complications associated with his perforated colon.

In accordance with Chapter 74.051(a) of the Texas Civil Practices & Remedies Code, this letter constitutes your sixty (60) days notice that Salvador Del Toro, Jr. intends to assert health care liability claims against you. If this matter is not resolved within sixty (60) days, then a lawsuit will be filed.

In an effort to settle this claim without the necessity of filing a lawsuit, my client hereby tenders an offer of settlement to you in the amount of Eight Hundred Thousand Dollars ($800,000.00), such consisting of $250,000.00 for noneconomic damages plus economic damages including loss of income, and health care expenses in the amount of $550,000.00.

Attached hereto is a release for medical records in accordance with §74.052 of the Texas Civil Practice & Remedies Code. Additionally, please accept this letter as our request for copies of any and all medical records, diagnostic studies, whether digital, or film. Enclosed herewith is a HIPAA release authorizing yOu to provide true, correct, and complete copies of same.

The standard professional liability insurance policy requires that the insured promptly give the insurance carrier notice of any claim. If you or your insurance carrier wish to discuss an amicable and expedient resolution of this claim, then please do not hesitate to give me a call.

George W. Mauz0I GWM/ag enclosures xc: Mr. Salvador Del Toro, Jr. i-=.1g1k7r;1"

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https://tools.usps.com/go/TrackConfirmAction.action 1/1 APPENDIX TAB “D” WNG* -201a.C1-190$

SAVADOX DEL 'Togo, ,TR, IN THE DISTRICT COM

MAI JUDICIAL DISTMCT GERARDO E. CARCAMO, M.D. AND RAYIBUILA, M.D. BEXAR COUNTY, TEXAS

LAINTIFF'S MST AMENDED ORIOINAL PETITION. VET KJI ORAF DB.7:dt OPSAID COURT:

MAI COMES Salvador 1".)01 Toro, Jr.(hereinafter referred to-at 'T..laintiffl and Illes this

First Amended Ddgina! Petition complaining of Gerardo E. Citroarna (hereinafter referred to

as "Defendant Caroam 51 Ravi. Botla, lierptn,after xploged to as "Defendant

AcitlaNtgehlafter colleettmelyagerredtp,a#'Defendants"Yarcdfor caus&ofaetion would show unto

this Hbrofabie Coikt: a MI:Mk

DiscovERy 01S1141.014.11,AN Pursuant to Tex. R, Civ, P, 190, discovery in this ease intehded to '150' CO dada

PARTIES

Plaintiff;,Salvador Del Toro, Jr., at all 0.trieS'teleVaxittbiiiiiflaWilitithath6tri an individual

resitlingit Det E 0„. Val'Vet& etUil Uttit

Defendan'ti eetar,do:K -eftetn.01,144.:410,. antdat 411 dote talovant to. this. lawsuit ha.steen, a

**Ian duty licensed to .practice: tgot*Iti $(11te of Texo and resides in Bexar County,

Texas. Said Defendant has •appeared :and answered herein::

MasesTel Toro.12001eadIngs\PetRion-M111.doex Defendant, Ravi Bala, ., xs, Oak all times relevant to tbis lawsuit has been, a physician

duly liconsed tb practice, medicine in the State of Texas and resides in Bexar County;Texas,

Defendant may be served with private process service. at .621 Camden Street, Suite 1202, San

Antonio, Texas 78215.

VENUE AND JURISDICTION

This Court has jurisdiction ,itit flits cause because: the damages sought *are within the

jurisdictional limits of this Court. Venue is.proper iriBexar, County, Texas in. that:such is the county

in. whith the events: giving rise to this claim occurred.

IV. FACTUAL 'BACKGROUND

This lawsuit is founded upon medical negligence cOmmitted.by Defendants..

On or about December 15, 2011, Mt. Del Toro was admitted. to Nix Hospital after being

evaliutted Dr. Jarnes• Lackey for increased: lower abdominal pain, nausea, and. Vomiting. AMT

Beall was ordered and performed, such reflectinghitlings of ". , , a severely diseasedsigrnold colon

with underlying diverticular burden and a stricture". Mr, Del Toro was referred to Nix. Hospital

where .ho was f-urther evaluated.and assessed byBridget K. Fieentner,..M.D.. Based onDp,Rientitn a

assessment and CT scan findings, Mr. Del Toro was admitted for further treatment and evaluation.

On Decernber 16, '201.1, Mr. Del Toro was seen in consultatiOn by Defendant Carew.° and.

DefendairtBotia. Defendants, singularly or collectively, developed anion fbr acolbnoscopy. On the

evening of December 17, 201I, Defendant Carcamo and/or Defendant 13otla ordered, Mt*. Del

Toro was administered, GoLYTMY for gastrointestinal prep prior to colonoscopy. Shortly

thereafter, lie begat having worsening:abdominal pain throughout the evening with vcimiting. On 2 TACases\Del Toro.12041Pleadfngs\Petition-AM1,docx December 1$0 20.114 approximately 5:00 o'clock a.rn„11./4.001: Toro had worsening:and Ohange in

the quality of hiSpain. He was sent emergently foraCT.Ofthe abdomen andpelvis which revealed

the presence of free air consistent with perforation of a hollow visCus: 'Defendant CiFeaMQ was

called and Mr. Del Toro was emergent!, taken.: tO:the operating room on December 18, 2011.

Defendant C4roanio. immediately. performs ft right hertiloolectonay,:signadidectorny, and end-

cOlostorny With Hartmann pouch and WoUnd VACplaCexterit OnDeceiiih 214611, VI:Da:Tao

underwent another surgery'hy Defendant 0:4010Mfor washenband watiilVAGehange: IV% Del

Toro remained hospitalized until December Q, '2011. Thereafter, WO:et Toro necessitated two

additional corrective .surgeries.

The complications: associated frOrnthe perforation of his colon caused Mn Del Toro severe

physical pain and 'mental ,anguish, physical; iMpairitiont, disfigurement,: and ilivliA04.16sSeS.

Although Dereridanta Clearly knew of the Obstruction, of the colon based on 'the eT. .trill tilts,.

Defendant. Carcerno and/or 'Defendant aotht..ordered GoLYTtlaY which is conWnditated in

patient suspected of having ,gastrointestinal obstruction..

V. NEGLIGENCE OF DEFENDANT CARCAMO

Defendant Catcatne owed a general duty etcare to Salvador DelToitb:, ik4 to provide health

ease, attention: Kildialteattnent. as a reasonably‘prudent physician waild have tinder the same or

411110 04131,101 COS Such duty required that said. Defendant carom° roridot health care in

conform! 3 WO Ole Ininimum applicable standard of care for a person under the same or similar

circumstances. as Salvador, Del Toro, Jr. Said Defendant breached that duty by engaging in the

following acts and/or othissions to act, such constituting negligencet

TACases‘Del Torg,1204 \ Plead ings1PatitionAM I .11ocx fAiling to appropriately'treat Mr. Del Toro for'a severe. diseased igtiioid colon With diVcrtioulat hilrdeuluid Siridur0;

failing to consider .alternative mica' interventions for Mr. Del Toro who was, suspected of having &gastrointestinal obstmetion;

ordering GoLYTBLYto pxoparehis colon:for avolonosoopy which is contraindicated. in a patient Suspected of having a, gastmintestirial obstruction; and

4. failing to otheriVise provide medical attention, dare.and/or treat/10Mb a patient in the same or similareondition ittaccordance•with the,applicable.steridard Of care.

Such acts and/Or omissions to Act; whether taken Singularly or collectively, coristitute a direct

arid proximate cause of injuries and damages ct, Salsiador Del Tore Irk for which lie seeks

recovery..

V.I. NEGLIGENCE OF DEFENDANT BOTLA

DefendantBotla owed'a general duty ofcareloSalvador Del Toi9,,,frii.tc) ppyiclOcaltlregei

attetitlimi titidiateatitientat'a. reasonably prudent valid hAvelitickt the Sahie.or oittilitistmeo„ ..Such dutyttotitilrod thataitid:Deteridatitt.30tla irenderhealth tare Ini c onfortitity with

the ranirown applicable standatd ,Orearolor: ,altiersogroxiciettha:.satne orohnilor Virctonstances as

Salvador Del: Toro, Jr. Said Defendant breached tliatdutybyengagingin the folloWingactsAnclior

omissions to act, •suchoonstitutingnegligence;:

1.. felliiv to appropriately treat Mr. Del Toro for a severe diseased OP-19W c.01011 with diverticulat burden and stricture;

l rig TO. consider altertiatiVe surgical interveritions. for Mt Del Toro who was suspected of having a gastrointestinal obstruction;

ordering GoLYTELY to prep= his colon fora pcionoscopy which is contraindicated in a patient suspected of having a gastrointestinal obstruction; and

Masestol Ton12041PleiglingOetitionA 101 Ilacx failing to otherwise provide medical attention, care and/or treatment to a patient in. the same or similar condition in accordance with the applicable standard of care,.

Such acts and/or otnlasioslovt,whether taken singularly or collectively, constitute a direct

and proximate cause of the itkhiries And damages of Salvador Del Toro, Jr. for which he seeks

VII. DAMAGES

As a direet and pi:akin:late cause of thaneg IjIenee of Deferkdatts, Salvador.Del TOW,Jr,11

suffered injuries, including severe physical and mental pain andAriouiSh and disfigaremantiwhich

based owl a reasonable degree of medical probibility.,10 will continuoto suffer far rnanyyears

the future, if not far the 'balance of his natural life; Additionally, Mr. Del Toro suffered physical

impairment and a loss of enjoyment 4t *WA based upon a reasonable degree of niedical

probability, he Will continue to suffer:n the:future. Pinthentare; he.has sustained a logs of:ince-Me

and/or loss wage earning capacity. As a result of his injurie4 Mt. Del Tore :has .also incurred

substantial reasonable medical and other health date expenses fat eaessaty medical and :health are

tuatt, based upon a reasonable degree: of medical prohabilityi he will continue to incur reasonable

eVerP&Iifor necessary medical and health care in the ibture,,

NOTICE

Plaintiff would fittha show that on or about lithe 1.1., 2013, Mare thati (60) days prior

to filing of this cause, he provided voitteri notice of said claim by certified mail rettnn receipt

requested to Defendant catcatno. Plaintiff otherwise:fully complied with the notice provisions

pursuant Chapter 711;051.4) of 1i Texas CIA Practices: 86 Remedies Code: A true.and correct

5 MasesTel Toro.12041Pleadl ngs1PotItionAM 1 .doox. .topyasaid notice is attachedb.eatortiorked as EkhibitnAillud itingorporatedheteinbyriference

fottillptirposes.

The -statute of '.limitations prohibited the providing of written notice of said elaitn to

Defendant aotla.

WHEREFORE,. PREMISES. CONSIDERED, Plaintiff Salvador Del Toro, rr. respect .illy

prays that Defendant Botla be cited to 'appear And aits*eflibitin and that, upon final trial, Plaintiff

have and recoverJudgnient.in hitfavOt'againgDefendatits,Jointly and:severalty, for the following:

1, actual ilanagOt Within theiorisdietiOnal limit's„Ofthia Ccutt;

pre-jUdginent and pOstifjndonent interest at the rtaxinuttn. rate Allowed by law;

Wats crstlit; at d..

such other and further relief at law or in equity; genetat or special) tOleich.Plaititiff may be justly entitled,

Respectfbily submitted,

1.01.,AVPIRM 2631 Atoulway, Suite 40 1 ;sap. Antonio; Texas 752I5 Telephone: 2-10,225..6262 Vacsirnire: '210,354.'3909

urge. T8e#131388tFC1

ATTORNVZ VORPLAINTIFY

T:ICaseaDel Toro.12041PleadIngs1PetItIon-011.docx CERTIFICATE OF:SE'VXCI

I hereby certify that on this 3rd day of MEtreh,.2014., orkte andeorteet•eopy ofBaintiff's First. Amended 'Original Petition has been sent by via fax And topiat mail to!

-Mir. 'W.:Richard Wagner, Esq. 'Wagner Celia, LLP 7718 Broadway, Suite 100 aim Antonio, TX 78209

ttaseaVlifTiiro.1200loathaA01:10lltion4AM GAUZE LAW FIRM GEORGE W. MAU2t, ATTORNEY 2s3ttRoADWAY ;sutre4oi South SAN ANTONIO/ T.ExAt 7E 1E: LEPHONE 210.226E2E2 FAOSPORX 210.35090e EP/1411..t.urnmizeematogol6viifitn.com WWW.MAUZELAWFIRM,OOM

ate 04011

PERSONAL & CONFIDENTIAL OMR 97012-3050-0002-1901.1372 Gerardo B. Cattalo°, M.D. 414 Navarro, Suite 810 San Antonio, TX 78205

a. irettino:

Please be adViSed that our law Ann has been .retained by Salvador Del Totoi Jr. to represent him in any:and all claiinShe.may have againstyen, firiainglkorn theSacts stated herein,

On.or about December 15, 2011, Mr.- Del Toro was Catliattti to Nix, Hospital` tiftet.b.eilig evaluated by Dr. James Lackey with the RiVerwalk Clinic. for irtOrelged low0 abatninal Pain; nausea, and vomiting. After a CT scan obtained britOltiVerwalk Clinic showed:ndings of"... . a severely diseased siginoid colon, with utulotyits afv6rficular burden and a:Atticture," be was referred to Nix Hospital where lie was tirther evaltiated and assessed by Bridget K. .Fiechtner, M.D: Based on Dr. Pieebtner's assessment and CT scan findings, Mr. Del TorO,Was admitted for tattier treatMent and evaluation and dWtssed the.patient's:'cose With yo.u, On. December:10, :261 I Mr: Del Toro was :seenin. consultation you, On the evening of DecetubOr 17, 2011,. you ordered Arid Mr, Del Toio was given 00.;YTBLY for, gastrointestinal prep prior to colonoscopY,. Shortly thereafter, he began having worsening: Abdominal pain throughout the evening with. vorniting. On December 18). 2011 . at approxiniately o'nlOck 4411„ tilt, Del Toro had worsening and change in the quality of his pain. He was sent emergently for :it CT of the abdomen and pelVis Which revealed the presence of free. air consistent with 'perforation of hollbw viscusp You were: called: and Mr. Del.Toro was ornergently taken to the operating:room on: December. 2011, Due to the perthration of his colon, you immediately performed aright hemieoleotomy, sigmoidectordy, and end-colostomy With Hattinaun poudh and wound VAC placement. On December 21, 2011., Mr, Del Toro underwent .another surgery by you for Washout and wound VAC change. NIr.. Del Toro, remained hospitaligod : until December 30, 20.11. SinCe then, Mr, Del Toro has AeceSSitatott frequent Medleal attention, necessitated and undergone two additionEd otirrective surgeries:

The complications associated #orrt "the: perfOratibt of 'his' colon, •wbieb. you. "expected", have caused him:sovore pain and mental anguish, severedisecanfort; disfigurement,; and Anancial Although, you: clearly knew of his partial obstruction in his colen based on the CT findings, you ordered GOLYTELY which is contraindicated in a patient suspected of having gastrointestinal obstruction, "You further state in your December 1:8; 2011, operative report, that "Unfortunately he was W441:4;t0 have:a bin 'us expected'' and he perforated.".. Dr. Camara° June 11, 2013 Page 2

The foregoing tots and omissions M act constitute negligence. M a. result of such negligence, Mr. Del Toro has suffered severe niedloal complications associated with his perforated colon.

In accordance with Chapter 74.051(a) ofth'rea45 Mil Practices.84 Remedies•Code4his letter constitutes your sncty (60) days notice that .Salyatior Del Toro, Jr. intends to assert health came liability. Claims against you. It this matter is not resolved. within:sixty (60) days, then a lawsuit will be filed:

hi an effort to settle- this •Clain without the necessity of filing a lawsuit, my client hereby tenders an offer of settlement to you in the amount: of ight Hunched Thousand Dollars ($800,000.00); $141 consisting of $250,000.00 for noneconomic daniages plus economic damages includirig loss of income, and, health care expenses in the amount of $550,000.00,

Attached hereto is a release for medical records hi. accordance with §74.052 :of the Texas Civil Practide & XeModi.04 Code. Additionally, please accept this letter as our request for copies of any and all medical records, diagnostic studies, whetherdigital, Enclosed.erewith is a. HIPAktelease authorizing you to provide true, correct, and ceanplete copies °ramie,

The standard professional liability insurance policy Y•etnt res That the 'Mated promptly give the insurance carrier notice of any claim,.. If you or your insurance carrier wish to .discuss an amicable and expedient resolution _of this claim, then please do not hesitate to give me a call.

(C't Geo ge W. MauzVII ()Wag enclosures xc: Mr. Salvador Del Toro, Jr. sla

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httge://tools.uspe:com/g oirrecketellmAction.scOon APPENDIX TAB “E” FILED 12/31/2014 8:52:51 AM Donna Kay McKinney Bexar County District Clerk Accepted By: Brenda Carrillo

CAUSE NO: 2013-CI-19135

SALVADOR DEL TORO, JR. IN THE DISTRICT COURT

V. 131st JUDICIAL DISTRICT

GERARDO E. CARCAMO, M.D. AND RAVI BOTLA, M.D. BEXAR COUNTY, TEXAS

PLAINTIFF'S FOURTH AMENDED ORIGINAL PETITION

NOW COMES Salvador Del Toro, Jr. (hereinafter referred to as "Plaintiff') and files this

Third Amended Original Petition complaining of Gerardo E. Carcamo, M.D. (hereinafter referred to

as "Defendant Carcamo") and Ravi Botla, M.D. (hereinafter referred to as "Defendant

Botla")(hereinafter collectively referred to as "Defendants") and for cause of action would show unto

this Honorable Court as follows:

Pursuant to Tex. R. Civ. P. 190, discovery in this case is intended to be conducted under

Plaintiff, Salvador Del Toro, Jr., at all times relevant to this lawsuit, has been an individual

Defendant, Gerardo E. Carcamo, M.D., is, and at all times relevant to this lawsuit has been, a

physician duly licensed to practice medicine in the State of Texas and resides in Bexar County,

Texas. Said Defendant has appeared and answered herein.

1 T:\Cases\Del Toro.1204\PleadingsTetition-AM4.clocx Defendant, Ravi Botla, M.D., is, and at all times relevant to this lawsuit has been, a physician

duly licensed to practice medicine in the State of Texas and resides in Bexar County, Texas. Said

Defendant has appeared and answered herein.

This Court has jurisdiction of this cause because the damages sought are within the

jurisdictional limits of this Court. Venue is proper in Bexar County, Texas in that such is the county

This lawsuit is founded upon medical negligence committed by Defendants.

On or about December 15, 2011, Mr. Del Toro presented himself to Dr. James Lackey for

increased lower abdominal pain for 3 — 4 days, nausea, and vomiting. He was fatigued and had not

been eating or taking many fluids. He had a history of diverticulitis and hospitalizations for acute

diverticulitis, the most recent approximately 1 month prior. A CT scan was ordered and performed,

such reflecting findings of ". . . a severely diseased sigmoid colon with underlying diverticular

burden and a stricture". Mr. Del Toro was referred to Nix Hospital where he was further evaluated

and assessed by Bridget K. Fiechtner, M.D. Dr. Fiechtner noted he was in mild distress with pain,

his abdomen was distended, and bowel sounds were hypoactive. She reviewed the CT scan and

noted the stricture is of particular concern because it appears to be partially obstructing the colon.

Based on Dr. Fiechtner's assessment and CT review, Mr. Del Toro was admitted for further

treatment and evaluation. On December 16, 2011, Mr. Del Toro was seen in consultation by

Defendant Carcamo who recommended a plan for surgery — either laparoscopic or possible open 2 T:Cases\Del Toro.1204 \Pleadings \Petition-AM4.docx colon resection with possible colostomy placement. Mr. Del Toro agreed to the surgery but wanted

it performed by a surgeon in Austin who had previously performed surgeries on family members.

After the hospital inquired with the surgeon in Austin and discovered he would not be available until

Monday, Mr. Del Toro requested surgery that day by Defendant Carcamo. Defendant Carcamo had

left the hospital already and informed the nursing staff that he would see Mr. Del Toro the next

morning. The next morning on December 17, 2011, Defendant Botla, a gastroenterologist, consulted

with Mr. Del Toro. He recommended a colonoscopy. Mr. Del Toro refused the colonoscopy and

again expressed his decision to proceed with the surgery recommended by Defendant Carcamo.

Defendant Carcamo spoke to Mr. Del Toro who again expressed his decision to proceed with the

recommended surgery, but Defendant Carcamo changed his plan and now recommended Mr. Del

Toro proceed first with a colonoscopy. He explained the "importance of colonoscopy" and

persuaded Mr. Del Toro to consent. On December 17, 2011, Defendant Botla ordered, and Mr. Del

Toro was administered, GoLYTELY for gastrointestinal prep prior to colonoscopy. He did not have

a bowel movement after the GoLYTELY was administered. Shortly thereafter, Mr. Del Toro began

complaining of severe pain to his abdomen. Both Defendants were notified but failed to examine

Mr. Del Toro or order any diagnostic tests. Mr. Del Toro's abdominal pain worsened to a scale of 10

out of 10, he began crying, and was very upset. He suffered severe pain for the next 12 hours. A CT

scan was ordered STAT on the morning of December 18, 2011. It revealed the presence of free air,

such indicative of a perforated colon. He was emergently taken to the operating room and Defendant

Carcamo performed an exploratory laparotomy. He found a perforation in the right colon, fecal

contamination of the peritoneum which had progressed to peritonitis and sepsis, and he performed a

right hemicolectorny (necessitated because of the perforated colon from the colon prep), 3 T:\Cases\Del Toro.1204\Pleadings\Petition-AM4,docx sigmoidectomy (necessitated because of the diverticulitis, stricture, and obstruction), and end-

colostomy with Hartmann pouch and wound VAC placement. On December 21, 2011, Mr. Del Toro

underwent another exploratory laparotomy, drainage of an intra-abdominal abscess, colostomy

revision, placement of wound VAC, and refill of ONQ pump. Mr. Del Toro remained hospitalized

until December 30, 2011. He was re-admitted in February 2012 and on February 17, 2012,

Defendant Carcamo performed laparoscopic adhesiolysis and a cholecystectomy. Mr. Del Toro

again was admitted to the hospital in March 2012 and Defendant Carcamo performed another

laparoscopic adhesiolysis, laparoscopic splenic flexure takedown, laparoscopic colostomy reversal,

and parastomal hernia repair.

Defendant Carcamo owed a general duty of care to Salvador Del Toro, Jr., to provide health

care, attention and/or treatment as a reasonably prudent general surgeon would have under the same

or similar circumstances. Such duty required that said Defendant Carcamo render health care in

conformity with the minimum applicable standard of care for a person under the same or similar

circumstances as Salvador Del Toro, Jr. Said Defendant breached that duty by engaging in the

following acts and/or omissions to act, such constituting negligence:

1. failing to appropriately treat Mr. Del Toro for a severe diseased sigmoid colon with diverticular burden, stricture, and obstruction;

2. recommending a colonoscopy which requires colon preparation when such was contraindicated because of the gastrointestinal obstruction;

3. failing to timely diagnose and treat the colon perforation on December 17-18, 2011; and

4 T:\Cases\Del Toro.1204\Pleadings\Petition-AM4.docx 4. failing to otherwise provide medical attention, care and/or treatment to a patient in the same or similar condition in accordance with the applicable standard of care.

Such acts and/or omissions to act, whether taken singularly or collectively, constitute a direct

and proximate cause of the injuries and damages of Salvador Del Toro, Jr. for which he seeks

VI. NEGLIGENCE OF DEFENDANT BOTLA

Defendant Botla owed a general duty of care to Salvador Del Toro, Jr., to provide health care,

attention and/or treatment as a reasonably prudent internal medicine physician/gastroenterologist

would have under the same or similar circumstances. Such duty required that said Defendant Botla

render health care in conformity with the minimum applicable standard of care for a person under the

same or similar circumstances as Salvador Del Toro, Jr. Said Defendant breached that duty by

engaging in the following acts and/or omissions to act, such constituting negligence:

1. recommending a colonoscopy, and colon preparation, when it was known that Mr. Del Toro had severe sigmoid disease, stricture, and obstruction;

ordering GoLYTELY to prepare his colon for a colonoscopy which is contraindicated in a patient with a gastrointestinal obstruction;

3. failing to timely diagnose and treat the colon perforation on December 17-18, 2011; and

4. failing to otherwise provide medical attention, care and/or treatment to a patient in the same or similar condition in accordance with the applicable standard of care.

Such acts and/or omissions to act, whether taken singularly or collectively, constitute a direct

and proximate cause of the injuries and damages of Salvador Del Toro, Jr. for which he seeks

5 T: \Cases gel Toro.1204 \Pleadings\Petition-AM4.docx VII. DAMAGES

As a direct and proximate cause of the negligence of Defendants, Salvador Del Toro, Jr.

suffered injuries, including severe physical and mental pain and anguish in the past; disfigurement,

which based upon a reasonable degree of medical probability, he will continue to have for the

balance of his natural life; physical impairment and a loss of enjoyment of life in the past; and a loss

of income in the past. Further, Mr. Del Toro incurred substantial reasonable medical and other

health care expenses for necessary medical and health care.

VIII. NOTICE

Plaintiff would further show that, more than sixty (60) days prior to filing of this cause, he

provided written notice of said claim by certified mail return receipt requested to Defendant

Carcamo. Plaintiff otherwise fully complied with the notice provisions pursuant to Chapter

74.051(a) of the Texas Civil Practices & Remedies Code.

The statute of limitations prohibited the providing of written notice of said claim to

Defendant Botla.

WHEREFORE, PREMISES CONSIDERED, Plaintiff Salvador Del Toro, Jr. respectfully

prays that, upon final trial, Plaintiff have and recover judgment in his favor against Defendants,

jointly and severally, for the following:

actual damages within the jurisdictional limits of this Court;

2. pre judgment and post-judgment interest at the maximum rate allowed by law;

6 T:\Cases\Del Toro.1204\Pleadings\Petition-AM4.docx 4. such other and further relief at law or in equity, general or special, to which Plaintiff may be justly entitled.

MAUZE LAW FIRM 2632 Broadway, Suite 401S San Antonio, Texas 78215 Telephone: 210.225.6262 Facsimile: 210.354.3909

B ""; ,7' eorge W. Mail , 4- I ginauze@matzelawfirm.com TBC #13238800 ATTORNEY FOR PLAINTIFF

hereby certify that on this 31st day of December, 2014, a true and correct copy of Plaintiff's Fourth Amended Original Petition has been sent by via. fax and regular mail to:

Mr. W. Richard Wagner, Esq. Mr. Brett B. Rowe, Esq. rwagner(i0iagnercario.com bbrowe(D/,evans-rowe.com Wagner Cario, LLP Evans, Rowe & Holbrook, P.C. 7718 Broadway, Suite 100 10101 Reunion Place, Suite 900 San Antonio, TX 78209 San Antonio, TX 78216

7 T:\Cases\Del Toro.12041PleadingsTetition-AM4.docx APPENDIX TAB “F” FILED 8/14/2014 2:38:32 PM' Donna Kay McKinney Bexar County District Clerk Accepted By: Jennifer Brazil

CAUSE NO. 2013-CI-19135

GERARDO E. CARCAMO, M.D. AND RAVI BOTLA, M.D. BEXAR COUNTY, TEXAS

MOTION FOR SUMMARY JUDGMENT AND FOR SEVERANCE OF DEFENDANT, RAVI BOTLA, M.D.

Defendant, Ravi Botla, M.D. ("Dr. Botla"), respectfully files this his Motion for

Summary Judgment and for Severance pursuant to Rule 166a of the Texas Rules of Civil

Procedure on the ground that Plaintiff's claims against him are barred by the applicable

two year statute of limitations. In support of his motion, Dr. Botla respectfully shows the

Court the following:

BASIS OF MOTION

Dr. Botla is entitled to summary judgment that Plaintiff take nothing by this suit

because Defendant has pleaded and established by the summary judgment evidence

described below each element of the affirmative defense of limitations applicable to

Plaintiff's medical malpractice claims.

Specifically, because this is a medical malpractice lawsuit governed by Chapter 74

of the Texas Civil Practice and Remedies Code, the statute of limitations is 2 years. TEX.

CIV. PRAC. & REM. CODE § 74.251(a). Although Chapter 74 tolls the statute of limitations

by 75 days in cases where a defendant is timely served with a statutory notice letter and

sufficient accompanying medical authorization, in this case there was no statutory sufficient medical authorization served on any defendant prior to the expiration of the

statute of limitations.1 Therefore, Plaintiff had two years from the date of accrual to file

his lawsuit. Plaintiff's cause of action against Dr. Botla accrued on December 17, 2011,

the date on which Dr. Botla treated Plaintiff. Since Plaintiff did not file this lawsuit on or

before December 17, 2013 (suit was filed March 3, 2014), his suit is time-barred and

Texas law mandates its dismissal.

Moreover, even if Plaintiff had timely served Dr. Botla—or any defendant for that

matter—with a sufficient authorization, tolling of the statute of limitations by 75 days would

not save Plaintiff's claims against Dr. Botla since they were filed 2 years and 76 days after

the date of accrual (2 years plus 75 days was Sunday, March 2, 2014). Chapter 74

provides an absolute statute of limitations "notwithstanding any other law," such that

March 2, 2014 was the absolute last day on which Plaintiff's Petition could have been

filed, notwithstanding any other rule of procedure or statute that, outside the context of

medical malpractice cases, might extend limitations or filing deadlines when they fall on

a weekend.

STATEMENT OF FACTS

Plaintiff has sued Dr. Botla alleging claims of negligence arising out of medical

care and treatment Dr. Botla provided to Plaintiff on December 17, 2011. More

specifically, Plaintiff presented to Nix Hospital on December 15, 2011 with complaints of

abdominal pain and a history of recurrent diverticulitis. A CT scan showed a diseased

sigmoid colon with underlying diverticular burdening and stricture. Co-Defendant, Dr.

I Although an authorization was provided to Dr. Botla's co-defendant, Dr. Carcamo, prior to the expiration of the statute of limitations, it was defective on several grounds, as will be discussed in greater detail in the body of this Motion. That defective authorization therefore did not operate to toll the statute of limitations.

2 Gerardo Carcamo, evaluated Plaintiff the following morning and recommended surgery.

Pursuant to Dr. Carcamo's request, Dr. Botla consulted on the patient's care on the

morning of December 17, 2011. After evaluating the patient, he recommended a

colonoscopy and ordered a colon prep in relation to same. That evening, Plaintiff

complained of continued abdominal pain. A repeat CT showed bowel perforation.

Plaintiff went to surgery shortly thereafter. Plaintiff's lawsuit against Dr. Botla asserts

negligence related to Dr. Botla's December 17, 2011 recommendation for colonoscopy

and order for the colon prep on the theory that the colon prep contributed to the bowel

perforation.

Plaintiff filed his Original Petition on November 20, 2013, naming only Dr. Carcamo

as a defendant. Prior to filing suit against Dr. Carcamo, on June 11, 2013, Plaintiff served

Dr. Carcamo with a notice letter as required by Chapter 74. Accompanying that notice

letter was an authorization form that allowed Dr. Carcamo to "obtain and disclose to

Mauze Law Firm [Plaintiff's counsel]" protected health information. Contrary to the

purpose of Chapter 74, the authorization thus limited Dr. Carcamo's ability to obtain

records to investigate Plaintiff's claim. Moreover, also contrary to the requirements of the

statute, the authorization failed to include several of Plaintiff's treators over the five years

preceding the health care at issue. In fact, the authorization excluded more treators than

it included. The authorization was therefore defective. As a result, Dr. Carcamo moved

to abate the proceedings for 60 days as allowed under Chapter 74 when Plaintiff does

not comply with the notice and authorization requirements. Since suit was filed against

him within the two year statute of limitations, abatement was his only recourse.

3 It was not until March 3, 2013, 2 years and 76 days after Dr. Botla provided the

care at issue, that Plaintiff amended his Petition to include Dr. Botla as a defendant.

Unlike Dr. Carcamo, Dr. Botla was not provided any notice letter or even the defective

authorization prior to suit be filed against him. He therefore had absolutely no opportunity

to investigate the claims made against him prior to the lawsuit being filed. More

importantly, since Plaintiff failed to serve a statutory sufficient authorization on any health

care provider within two years of the at-issue care and treatment provided by Dr. Botla,

the 75 day tolling period was not triggered and Plaintiff's lawsuit against him is time-barred

by the 2 year statute of limitations. Even had Plaintiff timely served one of the health care

providers with a sufficient authorization, which would have tolled the statute by 75 days,

since the lawsuit was filed 2 years and 76 days after the care at issue was provided,

Plaintiff's lawsuit against Dr. Botla was still filed after the expiration of the absolute 2 year

statute of limitations. In light of the above, Dr. Botla respectfully moves this Court to grant

his Motion for Summary Judgment and dismiss with prejudice Plaintiff's entire lawsuit

against him.

SUMMARY JUDGMENT EVIDENCE

To support the facts in this motion, Dr. Botla offers the following summary-

judgment evidence attached to this motion and incorporates the evidence into this motion

by reference:

a. Exhibit A — Plaintiff's Original Petition (filed November 20, 2013);

b. Exhibit B — Plaintiff's First Amended Petition (filed March 3, 2014);

4 c. Exhibit C — Plaintiff's Second Amended Petition (filed April 8, 2014);

d. Exhibit D — Plaintiff's Chapter 74 Notice Letter to Gerardo E. Carcamo, M.D. (dated June 11, 2013);

e. Exhibit E — Plaintiff's Authorization Form for Release of Protected Health Information (dated June 7, 2013) ("Plaintiff's Pre-Suit Authorization Form"); and

f. Exhibit F — Plaintiff's Objections and Responses to Defendant Ravi Botla, M.D.'s First Request for Production, response to request for production number 23 (dated May 8, 2014), Defendant hereby states his intent to use unfiled discovery products as summary judgment proof

g. Exhibit G — Original Answer and Jury Demand of Defendant, Gerardo Carcamo, M.D. (filed December 16, 2013)

IV. ARGUMENTS & AUTHORITIES

Dr. Botla pleads the affirmative defense of the statute of limitations as to Plaintiff's

entire cause of action against him. Since Plaintiff did not file his suit against Dr. Botla

until 2 years and 76 days after the care at issue was provided, his lawsuit against Dr.

Botla was filed 76 days late and is time barred. Even had Plaintiff complied with the

requirements of Chapter 74 and provided a statutory sufficient authorization within the

limitations period, so as to toll the statute for 75 days, Plaintiff's lawsuit would have still

been untimely filed by 1 day.

A. Summary Judgment Standard

The movant for summary judgment must show that (1) there is no genuine issue of

material fact and (2) the movant is entitled to judgment as a matter of law. TEX. R. Civ. P.

166a(c); Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003); M.D.

Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000); Lear Sigler, Inc. v.

5 Perez, 819 S.W.2d 470, 471 (Tex. 1991). The burden to produce summary-judgment

evidence to raise a fact issue shifts to the nonmovant after the movant has established that

it is entitled to summary judgment as a matter of law. Casso v. Brand, 776 S.W.2d 551, 556

(Tex. 1989).

A defendant may move for summary judgment on the affirmative defense of the

statute of limitations. See Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.

1995). A defendant moving for summary judgment on a limitations defense meets his

burden if he (1) proves when the cause of action accrued and (2) negates the discovery rule

if it was pleaded or otherwise raised by the plaintiff. Rhone-Poulenc, Inc. v. Steel, 997

S.W.2d 217. 224 (Tex. 1999). Where, as here, Plaintiff does not raise the discovery rule in

his pleadings, the defendant is not required to negate it in his motion for summary judgment.

In re Estate of Matejek, 960 S.W.2d 650, 651 (Tex. 1997). In any case, the discovery rule

has no application to this medical malpractice cause of action because the statute of

limitations is absolute. Diaz v. Westphal, 941 S.W.2d 96, 99 (Tex. 1997) (the statute of

limitations provision of 4590i, now Chapter 74, abolished the discovery rule).

B. Applicable Statute of Limitations and Accrual Date

The statute of limitation applicable to a health care liability claim is 2 years from the

accrual date. TEX. Civ. PRAC. & REM. CODE § 74.251(a). A cause of action for a health care

liability claim accrues on the date of the occurrence of the breach or tort. ID; Shah v. Moss,

67 S.W.3d 836, 841 (Tex. 2001) (if, as here, the date the alleged breach occurred is

ascertainable, limitations must begin on that date).

The assertions of negligence against Dr. Botla relate to his recommendation for a

colonoscopy and the order and administration of colon prep. See Plaintiffs First Amended

6 Petition at Exhibit "B" and Plaintiffs Second Amended Petition at Exhibit "C." Those actions

occurred on December 17, 2011. See Plaintiff's Second Amended Petition at Exhibit "C."

Therefore Plaintiff's cause of action against Dr. Botla accrued on December 17, 2011 and

the 2 year statute of limitations began running on that date.

C. Lawsuit Filed After the Expiration of the Two Year Statute of Limitations

Plaintiff's lawsuit against Dr. Botla was not filed until March 3, 2014. See Plaintiff's

First Amended Petition at Exhibit "B" and Plaintiff's Original Petition at Exhibit "A." This

was 2 years and 76 days after the cause of action accrued on December 17, 2011.

Therefore, Plaintiff's lawsuit was filed outside of the 2 year statute of limitations period

and must be dismissed. This result is not changed by the tolling provision of Chapter 74,

which is only triggered if a sufficient authorization is served within the statute of limitations;

here only a defective authorization was served on Dr. Botla's co-defendant. Moreover,

since the statute of limitations under Chapter 74 is absolute "notwithstanding any other

law," nor is the result changed by statutes or rules outside of Chapter 74 that might extend

the limitation deadline in cases that are not health care liability claims.

1. Tolling Period Not Triggered Where Authorization is Defective

If Plaintiff had timely served a sufficient authorization form pursuant to Section

74.052 of the Civil Practice and Remedies Code, the statute of limitations would have

been tolled by 75 days. TEX. Civ. PRAC. & REM. CODE § 74.051(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 . ."). However, since Plaintiff did not serve any health

care provider with a statutorily sufficient authorization within the limitations period, Plaintiff

did not give notice as provided in Chapter 74 and is therefore unable to take advantage of

7 the tolling provision. Carreras v. Marroquin, 339 S.W.3d 68, 74 (Tex. 2011) (failure to serve

the statutorily required authorization form before the expiration of the limitations period bars

application of the tolling provision of Section 74.051(c)); Nicholson v. Shinn, No. 01-07-

00973-CV, 2009 WL 3152111, at *4 (Tex. App.—Houston [1st Dist.] Oct. 1, 2009, no pet.)

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

a defective authorization form).

Prior to the expiration of the statute of limitations applicable to Dr. Botla, Plaintiff

served Co-Defendant, Dr. Carcamo, with a notice letter and authorization form. See

Plaintiff's Chapter 74 Notice Letter to Gerardo E. Cacacmo, M.D. at Exhibit "D" and Plaintiffs

Authorization Form for Release of Protected Health Information ("Plaintiff's Pre-Suit

Authorization") at Exhibit "E." Plaintiff never served any other health care provider, including

Dr. Botla, with a notice letter or authorization. See Plaintiff's Second Amended Petition at

Exhibit "C" and Plaintiff's Objections and Responses to Defendant Ravi Botla, M.D.'s First

Request for Production, response to request for production number 23 at Exhibit "F."

Therefore, the only way Plaintiff would get an additional 75 days to file suit against Dr. Botla

is if the authorization served on Dr. Carcamo (Exhibit "E") was statutorily sufficient.

In order to be sufficient, the authorization must track the precise text of Section

74.052(c). TEX. Civ. PRAC. & REM. CODE § 74.052(c) ("The medical authorization required

by this section shall be in the following form . ."). An authorization form that only authorizes

the release of records to the Plaintiff's own attorneys does not track the precise text of

Section 74.052(c) and is defective. See e.g., Cantu v. Mission Regional Medical Center,

No. 13-12-00568-CV, 2014 WL 1879292, *4 (Tex. App.—Corpus Christi, May 8, 2014, no

pet.). Moreover, in order to be sufficient, the authorization must provide the statutorily

8 required list of the patient's physicians and health care providers for the previous five years.

TEX. CIV. PRAC. & REM. CODE § 74.052(c); see also, Mitchell v. Methodist Hospital, 376

S.W.3d 833, 837 (Tex. App.–Houston [1st Dist.] 2012) (statute of limitations should not

be tolled when statutorily required information is omitted from the medical authorization);

Nicholson, 2009 WL 3152111, at *5.2

Plaintiffs Pre-Suit Authorization Form is defective and is therefore insufficient to

trigger 75 day tolling provision under Section 74.051(c). Specifically, Plaintiff's Pre-Suit

Authorization Form is materially defective on two grounds. First, it only provides that Dr.

Carcamo (not Dr. Botla) can "obtain and disclose to Mauze Law Firm [Plaintiff's counsel]"

the protected health information described in the authorization. It therefore does not track

the language of Section 74.052(c) and is defective. See Cantu, 2014 WL 1879292, at *4.

It does not allow Dr. Carcamo—much less Dr. Botla—an opportunity to obtain the medical

records for investigation of the claims. Notably, although Dr. Carcamo was sued within the

limitations period and therefore did not have a statute of limitations defense, in his Original

Answer, filed the day before the expiration of the limitations period, Dr. Carcamo moved to

abate the proceedings based on the defective authorization. See Original Answer and Jury

Demand of Defendant, Gerardo Carcamo, M.D. at Exhibit "G." Therefore, before the

expiration of the 2 year statute of limitations, Plaintiff was on notice that he had served a

defective authorization and did not correct it prior the running of the statute.

2 Although the Dallas and El Paso courts of appeals have, in fact-sensitive circumstances, found imperfect authorizations sufficient to toll the statutes of limitations, the El Paso case was decided before the Texas Supreme Court clarified in Carreras the requirements that a plaintiff must meet in order for limitations to be tolled. Moreover, the holdings of the Houston and Corpus Christi courts of appeals are more in line with the purpose of the notice and authorization requirements in Chapter 74. See e.g., Mitchell, 376 S.W.3d at 837 (omissions interfere with the statutory design to enhance the opportunity for presuit investigation, negotiation and settlement). Of course, the Dallas and El Paso decisions are not controlling authority. 9 Second, contrary to the requirement that Plaintiff include all medical providers who

"examined, evaluated, or treated" him "during a period commencing five years prior to the

incident made the basis of the lawsuit, Plaintiff only listed three such medical providers,

failing to list at least four, and probably more, medical providers—the authorization excluded

more providers than it included. See Plaintiffs Pre-Suit Authorization Form at Exhibit "E."

Significantly, the providers excluded from Plaintiffs authorization provided care and

treatment directly related to the claims made in this lawsuit: the providers provided care and

treatment related to prior episodes of diverticulitis, the condition that was being treated

during the care at issue. Therefore, the failure to include these additional providers renders

the authorization defective, and wholly insufficient to allow Dr. Botla the opportunity for pre-

suit investigation of the claims made against him. See Nicholson, 2009 WL 3152111, at *5.

Even had the authorization been directed to Dr. Botla, it was insufficient to allow him

to investigate the claims against him. Not only did it not allow him to obtain the records, it

also failed to include several important providers relevant to Plaintiffs claims. Therefore,

the authorization was defective and did not trigger the 75 day tolling period. Thus, Plaintiff's

lawsuit against Dr. Botla is barred by the statute of limitations since it was filed more than 2

years after the date of accrual, September 17, 2011.

2. Two Year Statute of Limitations is Absolute

Notwithstanding the fact that Plaintiff's Pre-Suit Authorization was defective and

insufficient to toll the statute, even had it appropriately tracked the language of the statute

and included all of Plaintiff's medical providers, so as to trigger the 75 day tolling period,

Plaintiff's case would still be time-barred since he filed 2 years and 76 days after Dr. Botla

treated Plaintiff (the 2 years and 75 days fell on Sunday, March 2, 2014). Chapter 74

10 provides an absolute two year statute of limitations that applies "notwithstanding any other

law," such that the deadline cannot be extended even if, as here, it falls on a weekend.

Section 74.251 sets forth the applicable statute of limitations in health care liability

claims, stating in no uncertain terms that the statute of limitations is absolute:

"Notwithstanding any other law . . . no health care liability claim may be commenced

unless the action is filed within two years . . ." TEX. Civ. PRAC. & REM. CODE § 74.251(a).

The Texas Supreme Court has repeatedly held that Section 74.251(a) imposes an absolute

2 year statute of limitations. See Diaz v. Westphal, 941 S.W.2d 96, 99 (Tex. 1997).

Moreover, Chapter 74 also provides that "[i]n the event of a conflict between [Chapter 74]

and another law, including a rule of procedure or evidence or court rule, this chapter controls

to the extent of the conflict." TEX. Civ. PRAC. & REM. CODE § 74.002. Thus, the absolute

2 year statute of limitations applies even if another statute or rule of procedure would alter,

interrupt, toll, or postpone the running of the statute of limitations in a claim not governed by

Chapter 74. See Molinet v. Kimbrell, 356 S.W.3d 407, _ (Tex. 2011) (absolute 2 year

limitations period of Section 74.251(a) prevailed over Responsible Third Party Statute that

allowed plaintiffs to sue parties after the expiration of the statute of limitations if they were

named a responsible third party by another defendant).

Therefore, notwithstanding any other law that would toll the statute of limitations

when the last day of the limitations period falls on a weekend, even if a sufficient

authorization had been served, the limitations period expired on March 2, 2014, 1 day before

Plaintiff first filed suit against Dr. Botla. Plaintiff's cause of action against Dr. Botla is

therefore time-barred and should be dismissed with prejudice.

11 V. CONCLUSION & PRAYER

WHEREFORE, PREMISES CONSIDERED, Dr. Botla respectfully prays that this

Court grant his Motion for Summary Judgment as to all claims and causes of action

against him brought by Plaintiff, enter summary judgment that Plaintiff take nothing by

this suit, and sever Plaintiff's cause(s) of action against Dr. Botla so that the judgment will

be final. Dr. Botla further prays for such other and further relief to which he may be justly

entitled.

Is/ Nicki K. Elgie BRETT B. ROWE State Bar No. 17331750 NICKI K. ELGIE State Bar No. 24069670 EVANS, ROWE & HOLBROOK, P.C. 10101 Reunion Place, Suite 900 San Antonio, Texas 78216 Direct Line: (210) 384-3271 Facsimile: (210) 340-6664 Email: bbrowe(a'evans-rowe.com Email: nelqieevans-rowe.com ATTORNEYS FOR DEFENDANT, RAVI BOTLA, M.D.

I hereby certify that a true and correct copy of the foregoing motion has been sent, in accordance with the Texas Rules of Civil Procedure on this 14th day of August, 2014:

by facsimile and eService to:

George W. Mauze, II Mauze Law Firm 2632 Broadway, Suite 401S San Antonio, Texas 78215 Telecopier: (210) 354-3909 Email: gmauzeAmauzelawfirm.com

12 W. Richard Wagner Wagner Cario, LLP 7718 Broadway San Antonio, Texas 78209 Telecopier: (210) 979-9141 Email: rwagnerwagnercario.com

/s/ Nicki K. Elgie BRETT B. ROWE / NICKI K. ELGIE CAUSE NO. 2013-CI-19135

GERARDO E. CARCAMO, M.D. AND RAVI BOTLA, M.D. BEXAR COUNTY, TEXAS

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND FOR SEVERANCE OF DEFENDANT RAVI BOTLA, M.D.

On this day came on to be heard the Motion for Summary Judgment of Defendant

Ravi Botla, M.D. The Court, having considered the Motion, pleadings timely filed, the

summary judgment evidence, and argument of counsel, hereby rules that said motion is

meritorious and should be in all things GRANTED because Plaintiff filed his lawsuit

against Dr. Botla after the expiration of the statute of limitations.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiff take

nothing against Defendant Ravi Botla, M.D.; that Plaintiff's claims and causes of action

against Defendant Ravi Botla, M.D. are hereby dismissed with prejudice; that Plaintiff's

claims and causes of action against Defendant Ravi Botla, M.D. are hereby severed from

all other causes of action alleged in Plaintiff's Second Amended Petition; and that the

severed causes of action shall be and are hereby assigned the separate cause number

of . All remaining causes of action against other

defendants shall proceed under the original cause number. All relief requested that is not

expressly granted is hereby denied.

HONORABLE JUDGE PRESIDING --- 2013-C1-19135 DONN( P 1318T JUDICIAL DISTRICT COURT 016 1 I' • seTiPorcopir SALVADOR DEL TORO JR US GERARDO E CARCA 7,S1 DATE FILED: 11/20/2013 SALVADOR DEL TORO, JR. IN THE DIS/T,RIC741earkl5

V. JUDICIAL DISTRICT

GERARDO E. CARCAMO, M.D. BEXAR COUN AS

NOW COMES Salvador Del Toro, Jr, (hereinafter referred to as "Plaintiff') and files this

petition complaining of Gerardo E. Carcamo, M.D. (hereinafter referred to as "Defendant") and for

cause of action would show unto this Honorable Court as follows:

Pursuant to Tex. R. Civ. P. 190, discovery in this case is intended to be conducted under

IL PARTIES

Plaintiff, Salvador Del Toro, Jr., at all times relevant to this lawsuit, has been an individual

residing in Del Rio, Val Verde County, Texas,

Defendant, Gerardo E. Carcamo, M.D., is, and at all times relevant to this lawsuit has been, a

physician duly licensed to practice medicine in the State of Texas and resides in Bexar County,

Texas, Defendant may be served with process by certified mail, return receipt requested, to

addressee only at 414 Navarro, Suite 810, San Antonio, Texas 78205,

1 T:\Cases\Del Toro.1204\Pleadings\Petition.doox HI. VENUE AND JURISDICTION

This Court has jurisdiction of this cause because the damages sought are within the

jurisdictional limits of this Court. Venue is proper in Bexar County, Texas in that such is the county

This lawsuit is founded upon medical negligence committed by Defendant Gerardo E.

Carcamo, M.D. On or about December 15, 2011, Mr. Del Toro was admitted to Nix Hospital after

being evaluated by Dr. James Lackey for increased lower abdominal pain, nausea, and vomiting. A

CT scan was ordered and performed, such reflecting findings of ". . a severely diseased sigmoid

colon with underlying diverticular burden and a stricture", Mr. Del Toro was referred to Nix

Hospital where he was further evaluated and assessed by Bridget K. Fiechtner, M.D. Based on Dr.

Fiechtner's assessment and CT scan findings, Mr. Del Toro was admitted for further treatment and

evaluation. On December 16, 2011, Mr. Del Toro was seen in consultation by Defendant Gerardo E.

Carcamo, M.D. Defendant Gerardo E. Carcamo recommended a colonoscopy. On the evening of„

December 17, 2011, Defendant Gerardo E. Carcamo, M.D. ordered, and Mr. Del Toro was

administered, GoLYTELY for gastrointestinal prep prior to colonoscopy. Shortly thereafter, he

began having worsening abdominal pain throughout the evening with vomiting, On December 18,

2011 at approximately 5:00 o'clock a.m., Mr. Del Toro had worsening and change in the quality of

his pain. He was sent emergently for a CT of the abdomen and pelvis which revealed the presence of

free air consistent with perforation of a hollow viscus. Defendant Gerardo E. Carcamo, M.D. was

called and Mr. Del Toro was emergently taken to the operating room on December 18, 2011. 2 T:1Cases\Del Toro.12041PleadingsTetition.docx Defendant Gerardo B. Carcamo, M.D. immediately performed a right hemicolectomy,

sigmoidectomy, and end-colostomy with Hartmann pouch and wound VAC placement. On

December 21, 2011, Mr. Del Toro underwent another surgery by Defendant Gerardo a Carcamo,

M.D. for washout and wound VAC change. Mr. Del Toro remained hospitalized until December 30,

2011. Thereafter, Mr. Del Toro necessitated two additional corrective surgeries.

The complications associated from the perforation of his colon caused Mr. Del Toro severe

physical pain and mental anguish, physical impairment, disfigurement, and financial losses.

Although Defendant Gerardo B. Carcamo, M.D. clearly knew of the obstruction of the colon based

on the CT findings, Defendant Gerardo E. Carcamo, M.D. ordered GoLYTELY which is

contraindicated in a patient suspected of having gastrointestinal obstruction.

Defendant Gerardo E, Carcarno, M.D. owed a general duty of care to Salvador Del Toro, Jr.,

to provide health care, attention and/or treatment as a reasonably prudent physician would have

under the same or similar circumstances. Such duty required that said Defendant render health care

in conformity with the minimum applicable standard of care for a person under the same or similar

circumstances as Salvador Del Toro, Jr. Said Defendant breached that duty by engaging in the

following acts and/or omissions to act, such constituting negligence:

1. failing to appropriately treat Mr. Del Toro for a severe diseased sigmoid colon with diverticular burden and stricture;

2. failing to consider alternative surgical interventions for Mr. Del Toro who was suspected of having a gastrointestinal obstruction;

3. ordering GoLYTELY to prepare his colon for a colonoscopy which is contraindicated in a patient suspected of having a gastrointestinal obstruction; and 3 T: \ Cases \Del Toro.12041Pleadings1Petition.docx 4. failing to otherwise provide medical attention, care and/or treatment to a patient in the same or similar condition in accordance with the applicable standard of care,

Such acts and/or omissions to act, whether taken singularly or collectively, constitute a direct

and proximate cause of the injuries and damages of Salvador Del Toro, Jr. for which he seeks

As a direct and proximate cause of the negligence of Defendant Gerardo E. Carcamo, M.D.,

Salvador Del Toro, Jr. has suffered injuries, including severe physical and mental pain and anguish

and disfigurement, which based upon a reasonable degree of medical probability, he will continue to

suffer for many years in the future, if not for the balance of his natural life. Additionally, Mr, Del

Toro suffered physical impairment and a loss of enjoyment of life which, based upon a reasonable

degree of medical probability, he will continue to suffer in the future. Furthermore, he has sustained

a loss of income and/or loss wage earning capacity. As a result of his injuries, Mr. Del Toro has also

incurred substantial reasonable medical and other health care expenses for necessary medical and

health care and, based upon a reasonable degree of medical probability, he will continue to incur

reasonable expenses for necessary medical and health care in the future.

Plaintiff would further show that on or about June 11, 2013, more than sixty (60) days prior

to filing of this cause, he provided written notice of said claim by certified mail return receipt

requested to Defendant Gerardo E. Carcamo, M.D. Plaintiff otherwise fully complied with the notice

provisions pursuant to Chapter 74.051(a) of the Texas Civil Practices & Remedies Code. A true and

4 TACaseseel Tora,12041Pleadings‘Petition.docx correct copy of said notice is attached hereto marked as Exhibit "A" and is incorporated herein by

WHEREFORE, PREMISES CONSIDERED, Plaintiff Salvador Del Toro, Jr. respectfully

prays that Defendant Gerardo E. Carcamo, M.D. be cited to appear and answer herein and that, upon

final trial, Plaintiff have and recover judgment in his favor against Defendant for the following:

1. actual damages within the jurisdictional limits of this Court;

2. pre-judgment and post-judgment interest at the maximum rate allowed by law;

4. such other and further relief at law or in equity, general or special, to which Plaintiff may be justly entitled.

MAUZE LAW FIRM 2632 Broadway, Suite 401S San Antonio, Texas 78215 Telephone: 210,225.6262 Facsimile: 210.354,3909

---1 ,forge W. Matte, II TBC #13238800

TACases\Del Toro.12041Pleadings\Petition.docx MAUZt LAW FOR GEORGE W. MAUZE, II, ATTORNEY 2632 BROADWAY SUITE 401 South SAN ANTONIO, TEXAS 78215 TELEPHONE 210.225,6282 FACSIMILE 210,354,3908 EMAIL: gmauzeemauzelawfirm.Eom WWW.MAUZEIAWFIRM,COM

PERSONAL CONFIDENTIAL CMR]RR #7012-3050-0002-3901-1372 Gerardo E. Camino, M.D. 414 Navarro, Suite 810 San Antonio, TX 78205

Re: Salvador Del Toro, fr.

Please be advised that our law firm has been retained by Salvador Del Toro, Jr. to represent him in any and all claims he may have against you arising from the facts stated herein.

.On or about December 15, 2011, Mr. Del Toro was admitted to Nix Hospital after being evaluated by Dr. James Lackey with the Riverwalk Clinic for increased lower abdominal pain, nausea, and vomiting. After a CT scan obtained by the Riverwalk Clinic showed findings of ". . . a severely diseased sigmoid colon with underlying diverticular burden and a stricture," he was referred to Nix Hospital where he was further evaluated and assessed by Bridget K. Fiechtner, M.D. Based on Dr. Fiechtner's assessment and CT scan findings, Mr. Del Toro was admitted for further treatment and evaluation and discussed the patient's case with you. On December 16, 2011 Mr. Del Toro was seen in consultation by you. On the evening of December 17, 2011, you ordered and Mr: Del Toro was given GoLYTELY for gastrointestinal prep prior to colonoscopy. Shortly thereafter, he began having worsening abdominal pain throughout the evening with vomiting. On December 18, 2011 at approximately 5:00 o'clock a.m., Mr. Del Toro had worsening and change in the quality of his pain. He was sent emergently for a CT of the abdomen and pelvis which revealed the presence of free air consistent with perforation of a hollow viscus. You were called and Mr. Del Toro was emergently taken to the operating room on December 18, 2011. Due to the perforation of his colon, you immediately performed a right hemicolectomy, sigmoidectomy, and end-colostomy with Hartmann pouch and wound VAC placement. On December 21, 2011, Mr. Del Toro underwent another surgery by you for washout and wound VAC change. Mr. Del Toro remained hospitalized until December 30, 2011. Since then, Mr. Del Toro has necessitated frequent medical attention, necessitated and undergone two additional corrective surgeries.

The complications associated from the perforation of his colon which you "expected", have caused him severe pain and mental anguish, severe discomfort, disfigurement, and financial hardship. Although, you clearly knew of his partial obstruction in his colon based on the CT findings, you ordered GoLYTELY which is contraindicated in a patient suspected of having gastrointestinal obstruction. You further state in your December 18, 2011, operative report, that "Unfortunately he was unable to have a bm 'as expected' and he perforated.". Dr. Carcamo June 11, 2013 Page 2

The foregoing acts and omissions to act constitute negligence. As a result of such negligence, Mr. Del Toro has suffered severe medical complications associated with his perforated colon.

In accordance with Chapter 74.051(a) of the Texas Civil Practices & Remedies Code, this letter constitutes your sixty (60) days notice that Salvador Del Toro, Jr. intends to assert health care liability claims against you. If this matter is not resolved within sixty (60) days, then a lawsuit will be filed.

In an effort to settle this claim without the necessity of filing a lawsuit, my client hereby tenders an offer of settlement to you in the amount of Eight Hundred Thousand Dollars ($800,000.00), such consisting of $250,000.00 for noneconomic damages plus economic damages including loss of income, and health care expenses in the amount of $550,000.00.

Attached hereto is a release for medical records in accordance with §74.052 of the Texas Civil Practice & Remedies Code. Additionally, please accept this letter as our request for copies of any and all medical records, diagnostic studies, whether digital, or film. Enclosed herewith is a HIPAA release authorizing yOu to provide true, correct, and complete copies of same.

The standard professional liability insurance policy requires that the insured promptly give the insurance carrier notice of any claim. If you or your insurance carrier wish to discuss an amicable and expedient resolution of this claim, then please do not hesitate to give me a call.

George W. Mauze/ri GWM/ag enclosures xc: Mr. Salvador Del Toro, Jr. U.S. Postal Service-, CERTIFIED MAILin RECEIPT ,(ORIngstic Mn)! Only;; No Intirance Cover ape Protrlded)r Epii,1611,immlInfinmhp4Olkaxtur otiEd at;yto.w.lisp2.cOM •; .1

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ti1rk0104601* FILED 4/8/2014 2:17:44 PM Donna Kay McKinney Bexar County District Clerk Accepted By: Brenda Carrillo

GERARDO E. CARCAMO, M.D. AND RAVI BOTLA, M.D. BEXAR COUNTY, TEXAS

PLAINTIFF'S SECOND AMENDED ORIGINAL PETITION

NOW COMES Salvador Del Toro, Jr. (hereinafter referred to as "Plaintiff') and files this

Second Amended Original Petition complaining of Gerardo E. Carcamo, M.D. (hereinafter referred

to as "Defendant Carcamo") and Ravi Botla, M.D. (hereinafter referred to as "Defendant

Botla")(hereinafter collectively referred to as "Defendants") and for cause of action would show unto

Pursuant to Tex. R. Civ. P. 190, discovery in this case is intended to be conducted under

Plaintiff, Salvador Del Toro, Jr., at all times relevant to this lawsuit, has been an individual

Defendant, Gerardo E. Carcamo, M.D., is, and at all times relevant to this lawsuit has been, a

physician duly licensed to practice medicine in the State of Texas and resides in Bexar County,

1 TACases\Del Toro.1204\Pleadings\Petition-AM2.docx Defendant, Ravi Botla, M.D., is, and at all times relevant to this lawsuit has been, a physician

duly licensed to practice medicine in the State of Texas and resides in Bexar County, Texas. Said

HI. VENUE AND JURISDICTION

This Court has jurisdiction of this cause because the damages sought are within the

jurisdictional limits of this Court. Venue is proper in Bexar County, Texas in that such is the county

in which the events giving rise to this claim occurred,

This lawsuit is founded upon medical negligence committed by Defendants.

On or about December 15, 2011, Mr. Del Toro presented himself to Dr, James Lackey for

increased lower abdominal pain for 3 — 4 days, nausea, and vomiting. He was fatigued and had not

been eating or taking many fluids. He had a history of diverticulitis and hospitalizations for acute

diverticulitis, the most recent approximately 1 month prior. A CT scan was ordered and performed,

such reflecting findings of ". . a severely diseased sigmoid colon with underlying diverticular

burden and a stricture". Mr. Del Toro was referred to Nix Hospital where he was further evaluated

and assessed by Bridget K. Fiechtner, M.D. Dr. Fiechtner noted he was in mild distress with pain,

his abdomen was distended, and bowel sounds were hypoactive. She reviewed the CT scan and

noted the stricture is of particular concern because it appears to be partially obstructing the colon.

Based on Dr. Fiechtner's assessment and CT review, Mr. Del Toro was admitted for further

treatment and evaluation. On December 16, 2011, Mr. Del Toro was seen in consultation by

Defendant Carcamo who recommended a plan for surgery — either laparoscopic or possible open 2 TACases\Del Toro.1204\PleadingsTetition-AM2,docx colon resection with possible colostomy placement. Mr. Del Toro agreed to the surgery but wanted

it performed by a surgeon in Austin who had previously performed surgeries on family members.

After the hospital inquired with the surgeon in Austin and discovered he would not be available until

Monday, Mr. Del Toro requested surgery that day by Defendant Carcamo. Defendant Carom had

left the hospital already and informed the nursing staff that he would see Mr. Del Toro the next

morning. The next morning, Defendant Botla, a gastroenterologist, consulted with Mr. Del Toro.

He recommended a colonoscopy. Mr. Del Toro refused the colonoscopy and again expressed his

decision to proceed with the surgery recommended by Defendant Carcamo. Defendant Carcamo

spoke to Mr. Del Toro who again expressed his decision to proceed with the recommended surgery,

but Defendant Carcamo changed his plan and now recommended Mr. Del Toro proceed first with a

colonoscopy. He explained the "importance of colonoscopy" and persuaded Mr. Del Toro to

consent, Defendants consulted each other regarding the plan for a colonoscopy. Defendant Botla

ordered, and Mr. Del Toro was administered, GoLYTELY for gastrointestinal prep prior to

colonoscopy, He did not have a bowel movement after the GoLYTELY was administered. Shortly

thereafter, Mr. Del Toro began complaining of severe pain to his abdomen. Both Defendants were

notified. Mr. Del Toro's abdominal pain worsened to a scale of 10 out of 10, he began crying, and

was very upset. He suffered severe pain for the next 12 hours. A CT scan was ordered STAT the

following morning of December 18, 2011. It revealed the presence of free air, such indicative of a

perforated colon. He was emergently taken to the operating room and Defendant Carcamo

performed an exploratory laparotomy. He found a perforation in the right colon, fecal contamination

of the peritoneum which had progressed to peritonitis and sepsis, and he performed a right

hemicolectomy (necessitated because of the perforated colon from the colon prep), sigmoidectomy 3 T:\Cases\Dei Toro.1204\Pleadings\Petition-AM2.docx (necessitated because of the diverticulitis, stricture, and obstruction), and end-colostomy with

Hartmann pouch (necessitated because of the sigmoidectomy) and wound VAC placement. On

December 21, 2011, Mr. Del Toro underwent another exploratory laparotomy, drainage of an intra-

abdominal abscess, colostomy revision, placement of wound VAC, and refill of ONQ pump. Mr.

Del Toro remained hospitalized until December 30, 2011, He was re-admitted in February 2012 and

on February 17, 2012, Dr. Carcamo performed laparoscopic adhesiolysis and a cholecystectomy.

Mr. Del Toro again was admitted to the hospital in March 2012 and Dr. Carcamo performed another

laparoscopic adhesiolysis, laparoscopic splenic flexure takedown, laparoscopic colostomy reversal,

Defendant Carcamo owed a general duty of care to Salvador Del Toro, Jr., to provide health

care, attention and/or treatment as a reasonably prudent general surgeon would have under the same

or similar circumstances. Such duty required that said Defendant. Cal-earn° render health care in

conformity with the minimum applicable standard of care for a person under the same or similar

circumstances as Salvador Del Toro, Jr. Said Defendant breached that duty by engaging in the

following acts and/or omissions to act, such constituting negligence:

failing to appropriately treat Mr. Del Toro for a severe diseased sigmoid colon with diverticular burden, stricture, and obstruction;

2. recommending a colonoscopy which requires colon preparation when such was contraindicated because of the suspected gastrointestinal obstruction;

3, failing to timely intervene surgically after Mr. Del Toro had a known colon perforation, such delay resulting in severe infection and further injuries; and

4 T:\Cases\Det Toro.12041Pleadings\PetitIon-AM2.doex 4. failing to otherwise provide medical attention, care and/or treatment to a patient in the same or similar condition in accordance with the applicable standard of care.

Such acts and/or omissions to act, whether taken singularly or collectively, constitute a direct

and proximate cause of the injuries and damages of Salvador Del Toro, Jr. for which he seeks

Defendant Botla owed a general duty of care to Salvador Del Toro, Jr., to provide health care,

attention and/or treatment as a reasonably prudent internal medicine physician/gastroenterologist

would have under the same or similar circumstances. Such duty required that said Defendant Botla

render health care in conformity with the minimum applicable standard of care for a person under the

same or similar circumstances as Salvador Del Toro, Jr. Said Defendant breached that duty by

engaging in the following acts and/or omissions to act, such constituting negligence:

1. recommending a colonoscopy, which requires colon preparation, when it was known that Mr. Del Toro had severe sigmoid disease, stricture, and obstruction;

2. ordering GoLYTELY to prepare his colon for a colonoscopy which is contraindicated in a patient suspected of having a gastrointestinal obstruction; and

3. failing to otherwise provide medical attention, care and/or treatment to a patient in the same or similar condition in accordance with the applicable standard of care.

Such acts and/or omissions to act, whether taken singularly or collectively, constitute a direct

and proximate cause of the injuries and damages of Salvador Del Toro, Jr. for which he seeks

5 T:\Cases\Del Toro.1204\Pleadings\Petition-AM2.docx VII. DAMAGES

As a direct and proximate cause of the negligence of Defendants, Salvador Del Toro, Jr. has

suffered injuries, including severe physical and mental pain and anguish which based upon a

reasonable degree of medical probability, he will continue to suffer for many years in the future, if

not for the balance of his natural life. Additionally, Mr, Del Toro suffered physical impairment and a

loss of enjoyment of life which, based upon a reasonable degree of medical probability, he will

continue to suffer in the future, Furthermore, he has sustained a loss of income and/or loss wage

earning capacity. As a result of his injuries, Mr. Del Toro has also incurred substantial reasonable

medical and other health care expenses for necessary medical and health care and, based upon a

reasonable degree of medical probability, he will continue to incur reasonable expenses for necessary

medical and health care in the future.

Plaintiff would further show that on or about June 11, 2013, more than sixty (60) days prior

to filing of this cause, he provided written notice of said claim by certified mail return receipt

requested to Defendant Carcamo. Plaintiff otherwise fully complied with the notice provisions

pursuant to Section 74.051(a) of the Texas Civil Practices & Remedies Code. A true and correct

copy of said notice is attached hereto marked as Exhibit "A" and is incorporated herein by reference

for all purposes.

The statute of limitations prohibited the providing of written notice of said claim to

6 MasesTel Toro.12041PIeadings\Petition•AM2.docx WHEREFORE, PREMISES CONSIDERED, Plaintiff Salvador Del Toro, Jr. respectfully

prays that, upon final, trial, Plaintiff have and recover judgment in his favor against Defendants,

1, actual damages within the jurisdictional limits of this Court;

2, pre-judgment and post-judgment interest at the maximum rate allowed by law;

4. such other and further relief at law or in equity, general or special, to which Plaintiff may be justly entitled.

MAUZE LAW FIRM 2632 Broadway, Suite 401S San Antonio, Texas 78215 Telephone: 210,225.6262 Facsimile: 210.354.3909

eorge W. Mauz TBC #13238800 ATTORNEY FOR PLAINTIFF'

I hereby certify that on this 8th day of April, 2014, a true and correct copy of Plaintiff's Second Amended Original Petition has been sent by via fax and regular mail to:

Mr. W. Richard Wagner, Esq. Mr, Brett B. Rowe, Esq. Wagner Cario, LLP Evans, Rowe & Holbrook, P,C, 7718 Broadway, Suite 10.0 10101 Reunion Place; Suite 900 San Antonio, TX 78209 San Antonio, TX 78216

George W. Matizej

7 Masos\Del Toro.1204\Pleadings\Petition-AM2,docx IMUZE LAW FIR GEORGE W. MAUZE, IL ATTORNEY 2632 BROADWAY SUITE 401 South SAN ANTONIO, TEXAS 78215 TELEPHONE 210.225.6262 FACSIMILE 210.364.3903 EMAIL: pmauze@mauzelawfkm.com ONW.MAUZELAWFIRTYLCOM

PE SONAL & CONFIDENTIAL CMRIRR #7012-3050-0002-3901-1372 Gerardo R Careamo, M.D. 414 Navarro, Suite 810 San Antonio, TX 78205

Please be advised that our law firm has been retained by Salvador Del Toro, Jr. to represent him in any and all claims he may have against you arising from the facts stated herein.

On or about December 15, 2011, Mr. Del Toro was admitted to Nix Hospital after being evaluated by Dr. James Lackey with the Riverwalk Clinic for increased lower abdominal pain, nausea, and vomiting. After a CT scan obtained by the Riverwalk Clinic showed findings of ". . a severely diseased sigmoid colon with underlying diverticular burden and a stricture," he was referred to Nix Hospital where he was further evaluated and assessed by Bridget K. Fiechtner, M.D. Based on Dr. Fiechtner's assessment and CT scan findings, Mr. Del Toro was admitted for further treatment and evaluation and discussed the patient's case with you. On December 16, 2011 Mr. Del Toro was seen in consultation by you. On the evening of December 17, 2011, you ordered and Mr. Del Toro was given GoLYTELY for gastrointestinal prep prior to colonoscopy. Shortly thereafter, he began having worsening abdominal pain throughout the evening with vomiting. On December 18, 2011 at approximately 5:00 o'clock a.m., Mr. Del Toro had worsening and change in the quality of his pain. He was sent emergently for a CT of the abdomen and pelvis which revealed the presence of free air consistent with perforation of a hollow viscus. You were called and Mr. Del Toro was emergently taken to the operating room on December 18, 2011. Due to the perforation of his colon, you immediately performed a right hemicolectorny, sigmoidectomy, and end-colostomy with Hartmann pouch and wound VAC placement. On December 21, 2011, Mr. Del Toro underwent another surgery by you for washout and wound VAC change. Mr. Del Toro remained hospitalized until December 30, 2011. Since then, Mr. Del Toro has necessitated frequent medical attention, necessitated and undergone two additional corrective surgeries.

The complications associated from the perforation of his colon which you "expected", have caused him severe pain and mental anguish, severe discomfort, disfigurement, and financial hardship. Although, you clearly knew of his partial obstruction in his colon based on the CT findings, you ordered GoLYTELY which is contraindicated in a patient suspected of having gastrointestinal obstruction. You further state in your December 18, 2011, operative report, that "Unfortunately he was unable to have a bin 'as expected' and he perforated.", Dr. C6rcamo June 11, 2013 Page 2

The foregoing acts and omissions to act constitute negligence. As a result of such negligence, Mr. Del Toro has suffered severe medical • complications associated with his perforated colon,

In accordance with Chapter 74.051(a) of the Texas Civil Practices & Remedies Code, this letter constitutes your sixty (60) days notice that Salvador Del Toro, Jr. intends to assert health care liability claims against you. If this matter is not resolved within sixty (60) days, then a lawsuit will be filed.

In an effort to settle this claim without the necessity of filing a lawsuit, my client hereby tenders an offer of settlement to you in the amount of Eight Hundred Thousand Dollars ($800,000.00), such consisting of $250,000.00 for noneconomic damages plus economic damages including loss of income, and health care expenses in the amount of $550,000.00,

Attached hereto is a release for medical records in accordance with §74.052 of the Texas Civil Practice & Remedies Code. Additionally, please accept this letter as our request for copies of any and all medical records, diagnostic studies, whether digital, or film. Enclosed herewith is a HIPAA release authorizing yOu to provide true, correct, and complete copies of same,

The standard professional liability insurance policy requires that the insured promptly give the insurance carrier notice of any claim. If you or your insurance carrier wish to discuss an amicable and expedient resolution of this claim, then please do not hesitate to give me a call.

Very truly yours, / • ( George W. Mauz0I GWM/ag enclosures xc: Mr. Salvador Del Toro, Jr. otal Sertncer. CERTIFIED MAIL, RECEIPT (aronesticABirPTIPP41011rOde CPWeralisTrovided)

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4.441alfiti wo; thiStitat ttitX4res ' AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION PURSUANT TO TEX. CIV, FRAC, & REM. CODE CHAPTER 74 74,052

I, Salvador Del Toro, Jr. (name of patient or authorized representative), hereby authorize Gerardo E. Carcamo, M.D. (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) to Mauz6 Law Firm 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 Salvador Del Toro, Jr, (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:

Nix Hospital, 414 Navarro, San Antonio, TX 78205 Gerardo E, Carcamo, M.D., 414 Navarro, Suite 830, San Antonio, TX 78205

This authorization shall extend to any additional physicians or health care providers that may in the future evaluate, examine, or treat Salvador Del Toro, Jr, (patient) for injuries alleged in connection with the claim made the basis of the attached Notice of Health Care Claim; and

2, The health information in the custody of the following physicians or health care providers who have examined, evaluated, or treated Salvador Del Toro, Jr. (patient) during a period commencing five years prior to the incident made the basis of the accompanying Notice of Health Care Claim:

Riverwalk Clinic, 414 Navarro, Suite 809, San Antonio, TX 78205 Val Verde Regional Medical Center, 801 Bedell Avenue, Del Rio, TX 78840 Antonio Cadena, M,D., 2201 North Bedell, Suite A, Del Rio, TX 78840

C. Excluded Health Information—the following constitutes a list of physicians or health care providers possessing health care information concerning Salvador Del Toro, Jr. (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 Salvador Del Toro, Jr. (patient) arising out of the claim made the basis of the accompanying Notice of Health Care Claim: NONE.

D. The persons or class of persons to whom the health information of Salvador Del Toro, Jr. (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 Salvador Del Toro, Jr. (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 Salvador Del Toro, Jr, (patient); • • 3. Any oonaulting or testifying experts employed by or on behalf of Gerardo E. Carcamo, M.D. (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 Gerardo E. Carcamo, M.D. (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; and 5, Any trier of the law or facts relating to any suit filed seeking damages arising out of the medical care or treatment of Salvador Del Toro, Jr. (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 o 1.

Date; Sa ado 'el Toro, Jr.

Patient's Name: Salvador Del Toro, Jr, Patient's D,0.13.: 12.25.1973 Patient's SSW 451.77.9676 AUTHORIZATION FORM RELEASE OF PROTECTED HEALTH INFORMATION

A. I, Salvador Del Toro, Jr., hereby authorize Gerardo E. Carcamo, M.D. to obtain and disclose to Mauze Law Firm (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 my potential claim for damages arising from injuries I have sustained,

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 Salvador Del Toro, Jr. in connection with the injuries alleged to have been sustained.

C. The persons or class of persons to whom the health information of Salvador Del Toro, Jr, 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 Salvador Del Toro, Jr.; 2. Any liability insurance entity providing liability insurance coverage or defense to any person hereafter named as Defendant; 3, Any consulting or testifying experts employed by or on behalf of any person hereafter named as a Defendant; 4, Any attorneys (including secretarial, clerical, or paralegal staff) employed by or on behalf of any person hereafter named as a Defendant; and 5. Any trier of the law or facts relating to any suit filed seeking damages arising out of the injuries and damages sustained by Salvador Del Toro, Jr,.

D, 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 74052, Civil Practice and Remedies Code,

E, I understand that the signing of this authorization is not a condition for continued Treatment, payment, enrollment, or eligibility for health plan benefits,

I understand that information used or disclosed pursuant to this authorization may be subject to redisciosure by the recipient and may no longer be protected by federal HIPAA privacy regulations,

0, This authorization will expire 12 months from the date of execution by the representative of the patient. H. Copies of this Authorization shall be deemed the same as the original. Also, facsimile copies or electronic versions of a signature of any party shall be deemed the same as the original.

Signature tient:

Date: Salve :6- ',el Toro, Jr,

Name of Patient: Salvador Del Toro, Jr. Patient's 110,13.: 12.25.1973 Patient's SSN: 451.77.9676 • Miami CAUSE NO: 2013-CI-19135

V. 131't JUDICIAL DISTRICT

GERARDO E. CARCAMO, M.D. AND RAVI 130TLA, M.D. BEXAR COUNTY, TEXAS

PLAINTIFF'S OBJECTIONS AND RESPONSES TO DEFENDANT RAVI BOTLA, M.D.'S FIRST REQUEST FOR PRODUCTION

TO: Defendant Ravi Botla, M.D., by and through his attorney of record, Mr. Brett B. Rowe, Esq. Evans, Rowe & Holbrook, P.C. 10101 Reunion Place, Suite 900 San Antonio, Texas 78216

COMES NOW Plaintiff Salvador Del Toro, Jr, ("Plaintiff'), and serves his Objections and

Responses to Defendant Ravi Botla, M.D,'s First Request for Production.

MAUZE LAW FIRM 2632 Broadway, Suite 401S San Antonio, Texas 78215 Tel: 210.225.6262 Fax: 210.354,3909

G rge W. Mauze, State Bar No. 132 8800

TACases\Del Toro.1204\DiscoverABo la) Resp•RFP.docx Page 1 CERTIFICATE OF SERVICE

hereby certify that on day of May, 2014, a true and correct copy of Plaintiff's

Objections and Responses to Defendant Ravi Botla, M.D.'s First Request for Production has been

sent by certified mail, return receipt requested, to:

Mr. W. Richard Wagner, Esq. Mr. Brett B. Rowe, Esq. Wagner Cario, LLP Evans, Rowe & Holbrook, P.C. 7718 Broadway, Suite 100 10101 Reunion Place, Suite 900 San Antonio, TX 78209 San Antonio, TX 78216

Geo W. Mauze,

TACases \Del Toro.1204\DIscovery\(E3otla) Resp-RFP.docx Page 2 Plaintiff objects to the instructions and definitions to the extent that they would purport to alter, vary, or impose different obligations upon Plaintiff than those provided by law.

Plaintiff further objects to the definition of "documents" because such is overly broad and compliance with Defendant's discovery requests would be unduly burdensome.

REQUEST FOR PRODUCTION NO. 1: Please produce a copy of your birth certificate.

RESPONSE: The following responsive document is attached hereto: 1. Birth Certificate of Salvador Del Toro,. Jr,, bate-stamped MLF/Del Toro.0043.

REQUEST FOR PRODUCTION NO. 2: Please produce a copy of your social security card. In lieu of your social security card, you may identify the information that would appear on this card including: your full legal name and your social security number,

RESPONSE: The following responsive document is attached hereto: 1. Social Security card of Salvador Del Toro, Jr., bate-stamped MLF/Del Toro.0015.

REQUEST FOR PRODUCTION NO. 3: Please produce a copy of your driver's license.

RESPONSE: The following responsive document is attached hereto: 1. Texas Commercial Driver's License of Salvador Del Toro, Jr., bate-stamped MLF/Del Toro .0016.

REQUEST FOR PRODUCTION NO. 4: Please produce copies of any diplomas or documentation reflecting accomplishment of educational programs including any vocational educational training or certifications. In lieu of this information, you may identify the information contained in such documents including: the name of the institution, the degree or certificate obtained, and the date the degree or certificate was obtained.

RESPONSE: In lieu of producing the responsive documents, Plaintiff would respond:

Obtained GED in 1992 from Eagle Pass High School. Obtained Commercial Driver's License training in 2006 from Star Career Training.

IROMOVAWMaNIO04,6

TACases\Del Toro,1204DiseoverASo la) Resp-RFP.docx Page 3 REQUEST FOR PRODUCTION NO, 5: For any consulting expert whose impressions and opinions have been reviewed by a testifying expert, please provide the following: 1. All documents reflecting the expert's name, address, and phone number; 2. All documents reflecting the subject matter on which the expert opined; 3, All documents reflecting the facts known by the expert that relate to or form the basis of the expert's mental impressions and opinions formed or made in connection with the case in which the discovery is sought, regardless of when and how the factual information was acquired; 4. All documents reflecting the expert's mental impressions and opinions formed or made in connection with the case in which discovery is sought, and any methods used to derive them; 5, All documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert; 6. The expert's current resume and bibliography.

RESPONSE: Plaintiff objects to said discovery request because pursuant to Rule 195.1 T.R.C.P. information regarding designated testifying experts is only available through a request for disclosure pursuant to Rule 194 of the T.R.C.P.

Subject to said objection, and without waiving same, none.

REQUEST FOR PRODUCTION NO. 6: Please produce a copy of each of your Marriage licenses and copies of any divorce decrees.

RESPONSE: The following responsive document is attached hereto: 1. Marriage License of Salvador Del Toro, Jr., bate-stamped MLF/Del Toro.0017 0018.

REQUEST FOR PRODUCTION NO. 7: Please produce copies of birth certificates for each of your children, including your natural, adopted, or stepchildren. If adopted, please provide adoption papers.

RESPONSE: The following responsive documents are attached hereto: 1. Birth Certificate of Jakeb Ryan Del Toro, bate-stamped MLF/Del Toro,0019; 2. Birth Certificate of Kristofer Michael Del Toro, bate-stamped MLF/Del Toro.0020; 3. Birth Certificate of Emily Nycole Del Toro, bate-stamped MLF/Del Toro.0021; and 4. Birth Certificate of Megan Michelle Del Toro, bate-stamped MU/Del Toro.0022,

TACases \ Del Toro, 1204Discovery1(Botla) RespaFP.doex Page 4 REQUEST FOR PRODUCTION NO, 8: If you were not born in the United States, please produce copies of any papers authorizing your residence or work in the United States.

RESPONSE: N/A.

REQUEST FOR PRODUCTION NO. 9: If you are claiming past lost wages, future lost wages, diminishment of earning capacity or other employment related benefits, then please produce copies of all federal income tax returns and attached schedules filed by you or on your behalf within the past ten years.

RESPONSE: Plaintiff objects to said discovery request as overly broad.

Plaintiff further object to providing income tax returns filed by Plaintiff as such are not relevant and/or reasonably calculated to lead to the discovery of admissible evidence, is harassing, and such request constitutes an invasion of Plaintiff's personal, privacy, and constitutional rights,

Subject to said objections, and without waiving same, the following responsive documents are attached hereto:

1. IRS, Wage and Income Transcript/Form W-2 Wage and Tax Statements for 2009, 2010, 2011, 2012, and 2013, bate-stamped MLF/Del Toro.0044 - 0049.

REQUEST FOR PRODUCTION NO. 10: If you are claiming to have incurred past loss of wages or income, or future loss of wages or income, or diminishment in your current or future earning capacity, then please produce copies of all employment applications made by you or on your behalf within the past ten years. If you do not have copies, you are specifically requested to contact those persons with whom you have made application and ask for a copy of your application. This request includes applications made since the date of the incident which is the subject of this lawsuit.

RESPONSE: Plaintiff objects to said discovery request as overly broad and beyond the scope of permissible evidence.

Plaintiff objects to said discovery request because the information sought is not relevant or reasonably calculated to lead to the discovery of admissible evidence.

Mases1Del Toro,12C4DiscoverABotl a) Resp-RFP,docx Page 5 REQUEST FOR PRODUCTION NO. 11: If you are claiming any physical injury, please produce copies of all health, life or disability insurance applications made by you or on your behalf within the past ten years, including those made after the incident which is the subject of this lawsuit.

RESPONSE: Plaintiff objects to said discovery request because the information sought is not relevant or reasonably calculated to lead to the discovery of admissible evidence, and an invasion of his personal and/or property rights.

REQUEST FOR PRODUCTION NO. 12: Please produce copies of all medical expenses, invoices, charges and any other bills or expenses which you claim were incurred as result of the incident which is the subject of this lawsuit or for which you claim this defendant is legally responsible.

RESPONSE: The following responsive documents have previously been produced: 1. medical expenses from Nix Hospital for admissions 12.15.11, 2.17.12, 3.15.12, and 3.30.12, bate-stamped MLF/Del Toro/ME - Nix Hosp.0001 - 0039.

REQUEST FOR PRODUCTION NO. 13: Please produce any paper or writing or document which you claim is evidence of any claim you are making for lost income, lost wages, or loss of earning capacity.

RESPONSE:

Plaintiff objects to said discovery request as overly broad. Subject to said objection, and without waiving same:

The following responsive documents have previously been produced: 1. medical records from Nix Hospital by affidavit, bate-stamped MLF/Del Toro/Nix Hosp.0001 - 0899; 2. medical records from James Lackey, M.D./Alamo Medical Group by affidavit, bate- stamped (MLF)Lackey/ACIV1G.001 - 009; and 3. medical records of Gerardo Carcamo, M.D., bate-stamped (MLF)Carcamo.001 - 011.

The following responsive documents are contained on the CD attached hereto: 4. medical records from Val Verde Regional Medical Center by affidavit, bate-stamped (MLF) Val Verde Hosp.0001 - 0243; and 5. medical records from Antonio Cadena, M.D./Cadena Family Practice by affidavit, bate-stamped (MLF) MR - Cadena. 0001 - 0044.

TACases\ Del Toro.12040iscovery\(Botla) RespaFP.docx Page 6 The following responsive documents are attached hereto:

6. IRS, Wage and Income Transcript/Form W-2 Wage and Tax Statements for 2009, 2010, 2011, 2012, and 2013, bate-stamped MLF/Del Toro.0044 0049.

REQUEST FOR PRODUCTION NO. 14: If you have been a party to any criminal, civil or workers compensation proceedings within the past ten years, then please produce copies of all pleadings or papers filed on your behalf in each proceeding.

REQUEST FOR PRODUCTION NO. 15: Please produce each statement made by, adopted by or otherwise attributable to this Defendant. The term "statement" includes tape recordings, writings, video recordings, documents or any recorded material allegedly made by, adopted by or attributable to this Defendant. For a further and additional definition of "statement" you are referred to T.R.C.P. 192.3(h).

RESPONSE: None other than those which may be contained in the medical records, pleadings, and deposition transcripts of depositions to be taken.

REQUEST FOR PRODUCTION NO, 16: Please produce all photographs, video tapes, sound recordings, models, drawings, illustrations, mock-ups, or reconstructions which relate to any of your allegations of liability or negligence or which relate to any of your allegationsregarding damages. Without limiting the scope of this request, you are specifically requested to produce each photograph of any injury claimed by you, each "day in the life video-tape", each "this was his life before the injury video-tape" and similar materials.

RESPONSE: The following responsive photographs are attached hereto: 1. Nine (9) photographs of Salvador Del Toro, Jr., bate-stamped MLF/Del Toro.0023 - 0031.

REQUEST FOR PRODUCTION NO. 17: Please produce all writings or documentation which you claim supports your claim for any expense (medical or non-medical) not previously identified by you in your responses to these Requests for Production.

RESPONSE: None.

T: \Cases\ Del Toro.1204DiscoverOotla) Respal,P,doex Page 7 REQUEST FOR PRODUCTION NO. 18: If you submitted any of the medical expenses for which you now seek recovery in this lawsuit to any health, disability, life or other insurer for total or partial payment, then please produce copies of all correspondence between you and each insurer as well as all claim forms, proofs of loss and supporting documentation submitted to each insurer.

RESPONSE: The following responsive documents are attached hereto:

1. Letter from Mame Law Firm to United Healthcare dated 1.20.14, bate-stamped MLF/Del Toro.0032 - 0034; 2. Letter from UMR (United Healthcare Co.) to Mauze Law Firm dated 128.14, bate- stamped MLF/Del Toro.0035 - 0036; 3. Letter from Optum on behalf of United Healthcare to Mauze Law Firm dated 4,1.14, bate-stamped MLF/Del Toro.0037 - 0038; and 4. Letter from Mauze Law Firm to WebTPA, Inc. dated 2.4.14, bate-stamped MLF/Del Toro.0039 0041.

REQUEST FOR PRODUCTION NO. 19: Please produce all correspondence, claim forms or other documentation relating to any claim by you or on your behalf for Social Security benefits.

REQUEST FOR PRODUCTION NO. 20: If you are claiming any physical injury or loss of wages or earning capacity, past or future, then please sign the attached medical authorization form; Form 4506-Request for Copy of Tax Return (Internal Revenue Service records); SSA 3288-Consent for Release of Information (Social Security Administration records); Authorization for Release of Employment Records, and produce the original of each.

RESPONSE: Plaintiff objects to signing Defendant's medical authorization form because it is impermissibly overly broad and thereby constitutes an absolute waiver of Plaintiff's physician/patient privilege.

Plaintiff further objects to providing income tax returns filed by Plaintiff as such are not relevant and/or reasonably calculated to lead to the discovery of admissible evidence, and such request constitutes an invasion of Plaintiff's personal, privacy, and constitutional rights.

Plaintiff further objects to signing Defendant's Social Security release of information because it is impermissibly overly broad and not relevant and/or reasonably calculated to lead to the discovery of admissible evidence.

TACases\llel Toro.1204\Discover(Bo la) RespaFP.docx Page 8 Subject to said objections, and without waiving same, the following responsive documents are attached hereto:

1. Executed Chapter 74 Authorization to Release Health Information; and 2, Executed Authorization for Employer to Release Information,

REQUEST FOR PRODUCTION NO. 21: If you claim to have sustained any physical or mental injury, then please produce all medical, hospital or similar records reflecting any care, service, exam or consultation received by you from any health care provider SINCE the incident which forms the basis of your complaint against this defendant.

RESPONSE: The following responsive documents have previously been produced: 1. medical records from Nix Hospital by affidavit, bate-stamped MLF/Del Toro/Nix Hosp.0001 - 0899; 2. medical records of Gerardo Carcamo, M.D., bate-stamped (MLF)Carcamo,001 - 011; 3, medical expenses from Nix Hospital for admissions 12.15.11, 2.17.12, 3.15.12, and 3.30.12, bate-stamped MLF/Del Toro/ME - Nix Hosp.0001 - 0039.

The following responsive documents are contained on the CD attached hereto: 4. medical records from Val Verde Regional Medical Center by affidavit, bate-stamped (MLF) Val Verde Hosp.0001 - 0243; and 5, medical records from Antonio Cadena, M.D./Cadena Family Practice by affidavit, bate-stamped (MLF) MR - Cadena. 0001 - 0044.

REQUEST FOR PRODUCTION NO. 22: If you claim to have sustained any physical or mental injury, then please produce all medical, hospital or similar records reflecting any care, service, exam or consultation received by you from any health care provider within ten years BEFORE the incident which forms the basis of your complaint against this defendant.

RESPONSE: Plaintiff objects to such discovery request insofar as it seeks medical information unrelated to the condition complained about and, thus, is overly broad, seeks irrelevant information, seeks information not reasonably calculated to lead to the discovery of admissible evidence, and seeks information which is privileged pursuant to T.R.E. 509.

Without waiving the foregoing objections, and subject to same, the following responsive documents have previously been produced: 1. medical records from James Lackey, M.D./Alamo Medical Group by affidavit, bate- stamped (MLF)Lackey/ACMG.001 - 009.

T:\Cases\Del Toro. 204‘DiscoverNBo la) RespRFP.docx Page 9 REQUEST FOR PRODUCTION NO. 23: Please produce all notice of claim letters or similar documents sent by you, or on your behalf to any person or organization including any doctor, hospital or health care provider. A notice of claim letter includes any letter or document purporting to place a person or organization on notice of a possible claim. This request is not limited to letters to health care providers but also includes

• letters to drug companies, • insurance companies

RESPONSE: The following responsive document has previously been produced insofar as it is attached as Exhibit A to Plaintiff's Second Amended Original Petition and all prior petitions: 1. Notice letter dated 6.11.13 to Gerardo Careamo, M.D.

REQUEST FOR PRODUCTION NO. 24: Please produce all letters or documents relating to any communication by you (or on your behalf) to or from any person or organization (or the representative of any such person or organization including the insurer, attorney or any representative of any such person or organization) which you have ever contended could be responsible for any injury claimed by you.

Without limiting the scope of this request, it would include all letters, demands, negotiations, allegations or settlement related communications with potential or actual defendants or their insurers, or attorneys. It specifically includes all communications with persons or entities or their insurance company representatives who received Chapter 74 notice letters. It specifically includes any communications related to agreements, commitments, or understandings between the communicants during discovery or at trial.

RESPONSE: The following responsive document has previously been produced insofar as it is attached as Exhibit A to Plaintiff's Second Amended Original Petition and all prior petitions: 1. Notice letter dated 6.11.13 to Gerardo Carcarno, M.D.

The following responsive document is attached hereto: 2. Letter from American Physicians Insurance to George W. Mauze, II dated 6.18,13, bate-stamped MLF/Del Toro.0042.

REQUEST FOR PRODUCTION NO. 25: Please produce all medical literature, articles, journals, learned treatises, policies, procedures, books or other writings or documents (as that term is defined herein) which your experts will use or refer to at trial or your attorney will use to cross examine any of the witnesses.

RESPONSE: Plaintiff objects to producing documents in regards to experts not retained by Plaintiff including treating health care providers and Defendant's experts because the discovery es\De1 Toro.12044DiscoverABotla) Resp-RFP,docx Page 10 responsive from nonretained treating health care providers and Defendant's retained experts is not known to Plaintiff and/or is equally available to Defendant,

Plaintiff further objects to said discovery request because the information sought constitutes or contains attorney work product which is exempt from discovery pursuant to T.R.C.P. 192.5,

Plaintiff further objects to said discovery request because pursuant to Rule 195.1 T.R.C.P. information regarding designated testifying experts is only available through a request for disclosure pursuant to Rule 194 of the T.R,C.P,

REQUEST FOR PRODUCTION NO, 26: Please produce any diary, log or similar document made or kept by Plaintiff in connection with the incident which is the subject of this lawsuit or any of the events following the incident through to the present day.

REQUEST FOR PRODUCTION NO. 27: Please produce all writings, recordings or other things which reflect or relate to any agreement with any party or former party to this case. This includes settlements, partial settlements, Mary Carter agreements, hi-low agreements, guaranty agreements, agreements regarding the use of witnesses, arguments or positions to be taken at trial, selectien of the jury, withdrawal of witnesses, election for settlenient credits, or any other understanding or deal.

REQUEST FOR PRODUCTION NO. 28: Please produce all documents or things which you contend or suspect have been altered, modified, obliterated, destroyed or tampered with by any party or former party to this case of any physician, hospital or health care provider.

neases\Del Toro.1204Discoven),(Bo la) Resp-RFP.doex Page I I REQUEST FOR PRODUCTION NO. 29: Please produce any communication with Medicare, Medicaid, or any other governmental agency or entity responsible for collection of these debts. This request specifically includes any documentation that would indicate what liens the government has on any settlement plaintiff(s) may receive in this case. Please sign the enclosed release for Medicare records. Please also provide a separate authorization for release of Medicaid records. (Please be advised that plaintiff should immediately contact Medicare and Medicaid to determine the amounts of any such liens. Settlement or a judgment cannot be funded unless and until plaintiff provides written proof that all governmental liens have been satisfied. Mediation will also be unsuccessful until plaintiff can prove the amounts of these government liens.)

RESPONSE: Plaintiff objects to signing Defendant's release for Medicare records because Plaintiff is not a Medicare recipient.

Plaintiff further objects to signing an authorization for release for Medicaid records because Plaintiff is not a Medicaid recipient.

Subject to said objections, and without waiving same, the following responsive documents are attached hereto: 1. Letter from Mauze Law Firm to United Healthcare dated 1.20.14, bate-stamped MLF/Del Toro.0032 - 0034; 2. Letter from UMR (United Healthcare Co.) to Mauze Law Firm dated 3.28.14, bate- stamped MLF/Del Toro.0035 - 0036; 3. Letter from Optum on behalf of United Healthcare to Mauze Law Firm dated 4.1.14, bate-stamped MLF/Del Toro.0037 - 0038; and 4. Letter from Mauze Law Firm to WebTPA, Inc. dated 2.4.14, bate-stamped MLF/Del Toro.0039 0041.

REQUEST FOR PRODUCTION NO. 30: Please produce copies of all statements of any witness or person identified as having knowledge of relevant facts OR who may be called to testify at trial.

RESPONSE: None other than those which may be contained in the medical records, pleadings, and deposition transcripts of depositions to be taken,

REQUEST FOR PRODUCTION NO. 31: Please produce all trial exhibits which may be offered into evidence or used at trial.

RESPONSE: Plaintiff objects to said discovery request because the information sought is not within the scope of permissible discovery because there has not been a pretrial conference pursuant to Rule 166 T.R.C.P. or discovery control order pursuant to Rule 190.4 T.R.C.P. requiring disclosure of this information.

T:\Cases\Del Toro. 204\DiscoverABotla) Resp-RFP oox Page 12 Plaintiff further objects to said discovery request because the information sought constitutes or contains attorney work product which is exempt from discovery pursuant to T.R.C.P. 192,5.

Plaintiff further objects to said discovery request because Defendant may not use same to require Plaintiff to marshal all of Plaintiffs available proof or the proof Plaintiff intends to offer at trial.

REQUEST FOR PRODUCTION NO. 32: Please produce a copy of the conditional payment letter from CMS.

REQUEST FOR PRODUCTION NO. 33: In the event any plaintiff was attending school or any form of training or educational program at any time within 5 years of the incident made the basis of this lawsuit, then please produce copies of all documents reflecting the performance of each plaintiff in each school or program over the past 10 years. This includes all report or grade cards or evaluations of any plaintiff.

REQUEST FOR PRODUCTION NO. 34: Pursuant to Rule 609(f), of the Texas Rules of Civil Evidence, please produce all evidence of a criminal conviction for this defendant or anyone plaintiff claims was an employee or agent of this defendant, which you will use as evidence in any examination of any witness,

REQUEST FOR PRODUCTION NO. 35: Please produce a copy of any agreement, promise, contract or warranty of cure provided by this defendant related to the incident made the basis of this case,

RESPONSE: None,

REQUEST FOR PRODUCTION NO. 36: Please timely produce a copy of any settlement demand or "Stower' s Demand" made to any defendant. Please produce said documents at the time they are transmitted.

RESPONSE: None. 'Moses\ Del Toro,1204\DiscoverMotla) Resp-RFP,cloox Page 13 REQUEST FOR PRODUCTION NO. 37: Please produce a copy of any Chapter 74 notice letters and the certified mail return receipt card (green card) for any notice letters sent within two years after the date of this incident.

RESPONSE: The following responsive document has previously been produced insofar as it is attached as Exhibit A to Plaintiff's Second Amended Original Petition and all prior petitions: 1, Notice letter dated 6,11.13 to Gerardo Camaro°, M.D. and Track and Confirm (proof of receipt) from USPS website, Green card was never returned to Plaintiffs counsel.

REQUEST FOR PRODUCTION NO. 38: Correspondence with witnesses or those who have knowledge of relevant facts: All letters, correspondence and any other documents from Plaintiff's counsel to an individual listed as a witness or person with knowledge of relevant facts about this case, and all letters, correspondence and any other document from any such person to Plaintiff's counsel,

RESPONSE: Plaintiff objects to said discovery request because documents from Plaintiffs counsel to any person constitutes or contains attorney work product which is exempt from discovery pursuant to T.R.C.P. 192.5.

Subject to said objection, and without waiving same, none,

REQUEST FOR PRODUCTION NO. 39: Please produce a copy of a picture of the patient at or near the time of the incident. If there is no picture available at or near the time of the incident, then please produce a copy of a most recent picture of the patient.

RESPONSE: The following responsive photographs are attached hereto: 1, Nine (9) photographs of Salvador Del Toro, Jr., bate-stamped MLF/Del Toro.0023 - 0031.

REQUEST FOR PRODUCTION NO. 40: If you received Medicare or Medicaid benefits, please produce a copy of your notification to the Texas Department of Human Services regarding this unsettled tort claim pursuant to Section 32.033 of the Texas Human Resources Code.

mememos \ Cases\ Del Toro. 12040iscoverWliotla) Resp-RFP.doox Page 14 REQUEST FOR PRODUCTION NO. 41: If you are or become a Medicare recipient, please complete the CMS form, pages 1 and 2, regarding your basic information.

REQUEST FOR PRODUCTION NO. 42: Please produce an actual copy of the Medicare Health Insurance Claim Number (HICN) card. Submission of the number alone is not sufficient; a copy of the HICN card is required even Utile claimant is deceased.

T: Cases \ Del Toro,1204DiscoverABotl a) Resp-Iff.doox Page 15 • FILED 12/16/2013 9:19:28 AM Donna Kay McKinney Bexar County District Clerk Accepted By: Laura Rodriguez

CAUSE NO, 2013-CI-19135

SALVADOR DEL TORO, JR. JUDICIAL DISTRICT COURT

Plaintiff,

VS, 131ST JUDICIAL DISTRICT

GERARDO E. CARCAMO, M.D.

Defendant. BEXAR COUNTY, TEXAS

ORIGINAL ANSWER AND JURY DEMAND OF DEFENDANT, GERARDO CARCAMOtM.D. WITH REQUEST FOR DISCLOSURE

NOW COMES Defendant, GERARDO CARCAMO, M.D., and files this his Original

Answer to the Plaintiffs Petition, and in response thereto would respectfully show unto the

GENERAL DENIAL

This Defendant denies generally the material allegations contained in Plaintiff's Petition

saying that inasmuch as they are allegations of fact, Plaintiff should be required to prove them by

a preponderance of the evidence to the jury, if the Plaintiff can do so,

TO THE COURT ONLY

II.

HEALTH CARE LIABILITY CLAIM GOVERNED Y CHAPTER 74 OF TCP&RC

Defendant affirmatively pleads that this lawsuit is a health care liability claim governed

by Chapter 74 of the Texas Civil Practice & Remedies Code,

K:\WP\ WRW WefforoCaroamoWloadings \Dafendant \Original Ans & JO of DefCarcamo.doo INADEQUATE NOTICE

Defendant denies that Plaintiff provided appropriate notice pursuant to Chapter 74.051(a)

of the Texas Civil Practices & Remedies Code in that Plaintiffs medical authorization only

allows for the disclosure of pertinent medical records to the "Mauze Law Firm" not Defendant or

his counsel. Therefore, Defendant pleads for abatement of this matter.

IV,

LIMITATION OF CIVIL LIABILITY

Defendant continues to deny that he was in any way negligent in his care and treatment of

Salvador Del Toro, Jr. or that the Plaintiff should recover damages from him; however,

alternatively pleads the limitation on civil liability set forth in Tex, Civ. Prac. & Rem. Code §§

74,301 - 74,303, as applicable.

V.

MEDICAL BILLS PAID VERSUS INCURRED

Defendant continues to deny that he was in any way negligent in his care and treatment of

Salvador Del Toro, Jr. or that the Plaintiff should recover damages from him; however,

alternatively asserts that any medical or healthcare expenses sought by the Plaintiff as damages

herein are limited pursuant to Chapter CPRC §41.0105 to the amount actually paid by or on

behalf of Salvador Del Toro, Jr.

VI,

PERIODIC PAYMENT PROVISION

Defendant affirmatively pleads the applicability of CPRC §74.503 (periodic payments) in

the unlikely event of an adverse Judgment against him,

K:\WP\VVRW \DelToroCaroamoWleadings\Dol'ondant\Original Ans & JD of Def Carcamo,doo 2 VII,

FINANCE CODE

Defendant affirmatively pleads the provisions of §304.101 of the Finance Code

pertaining to prejudgment interest,

VIII.

DISCOVERY CONTROL PLAN

Defendant contends discovery in this case should be conducted under Level 3, TRCP

190.4 et seq, and hereby requests the deposition of the Plaintiff at a reasonable time following

Plaintiffs compliance with CPRC §74.351, the exchange of preliminary written discovery, and

the procurement by Defendant of all pertinent medical records.

IX,

JURY DEMAND

In accordance with Texas Rule of Civil Procedure 216, this Defendant demands a trial by

jury, for which the jury fee is being submitted.

X.

REQUESTS FOR DISCLOSURE

Pursuant to Rule 194 of the Texas Rules of Civil Procedure, Plaintiff is requested to

disclose, within thirty (30) days of service of this Request, the information or material described

in Rule 194,2(a) through 194,2(1).

PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant, GERARDO CARCAMO,

M.D., prays that upon final trial and hearing hereof, Plaintiff takes nothing by way of this

lawsuit, that Defendant goes hence, without day, and recover costs in his behalf expended, and

K:1WKWRW1DelToroCnroamo\Pleadings\Defendant\Original Ans & JO of Def Carcino.cloo 3 any other and further relief, at law or in equity, to which this Defendant may show himself justly

entitled,

Respectthlly submitted,

WAGNER CARIO, LLP 7718 Broadway San Antonio, Texas 78209 (210) 979-7555 (TELEPHONE) (210)979-9141 (TELEcoPIER)

BY: i 4.iati

ichard Wagner TEXAS BAR No, 2066 130

ATTORNEY FOR DEFENDANT

I hereby certify that a true and correct copy of the foregoing document was forwarded to counsel of record on this the 16th day of December, 2013, as follows:

VIA FAX AND CMRRR# 7013 0600 0002 0735 1520 George Mauze Mauze Law Firm, PLLC 2632 Broadway, Suite 401S San Antonio, Texas 78215

te, VI ichard Wagner

KAWP\WRW\DelToroCarcamoWleadings\ Defendant \Original Ans & JD of Def Carcamo,cloo 4 APPENDIX TAB “G” CAUSE NO: 2013-CI-19135

131st JUDICIAL DISTRICT

GERARDO E. CARCAMO, M.D. AND RAVI BOTLA, M.D. BEXAR COUNTY, TEXAS

PLAINTIFF'S OPPOSITION TO DEFENDANT RAVI BOTLA, M.D.'S MOTION FOR SUMMARY JUDGMENT

COMES NOW Plaintiff Salvador Del Toro, Jr. (hereinafter referred to as "Plaintiff'), in

the above-entitled and numbered cause and files his Opposition to the Motion for Summary

Judgment of Defendant Ravi Botla, M.D. (hereinafter referred to as "Defendant") and in

opposition to said motion, Plaintiff would respectfully show unto the Court the following:

I. NATURE OF CLAIM

This lawsuit is founded upon the negligence of Defendant in his medical attention, care,

and treatment of Plaintiff during the hospitalization at Nix Hospital from December 15, 2011

through December 30, 2011 (Exhibit 1). Defendant ordered a colonoscopy prep on December

17, 2011 for a colonoscopy on December 18, 2011. Plaintiff's colon perforated, such not

diagnosed and treated until December 18, 2011. He developed several complications including

peritonitis and sepsis.

II. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Pursuant to TEX. R. Civ. P. 166a Defendant filed a traditional motion for summary

judgment based upon his affirmative defense of the statute of limitations.

1 TACases\Del Toro.1204\Pleadings\Opp to D BotlEI:SMS.I.docx III. SUMMARY JUDGMENT STANDARD

A. Purpose of a Summary Judgment

A summary judgment is a harsh remedy and must be strictly construed. Querner v.

Rindfuss, 966 S.W.2d 661, 670 (Tex. App. — San Antonio 1998, pet. denied).

B. Standard of Review

When considering the summary judgment evidence, the trial court shall make every

reasonable inference and resolve all doubts in favor of the non-movants. Nixon v. Mr. Property

Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Gandara v. Slade, 832 S.W.2d 164, 166

(Tex. App. — Austin 1992, no writ).

C. Motion for Summary Judgment Based Upon An Affirmative Defense

Defendant has the burden of proof to establish his statute of limitations affirmative

defense as a matter of law. Hellman v. Mateo, 772 S.W.2d 64, 66 (Tex. 1989).

IV. FACTS RELIED UPON WHICH PRECLUDE SUMMARY JUDGMENT

Plaintiff, in opposition to Defendant's Motion for Summary Judgment relies upon the

evidence in the following exhibits attached hereto, and fully incorporated herein:

Exhibit 1: Plaintiff's Third Amended Original Petition Exhibit 2: Excerpts from medical records of Nix Hospital Exhibit 3: Chapter 74 Notice letter to Gerardo Carcamo, M.D. Exhibit 4: Excerpts of medical records and bill of Defendant Exhibit 5: Email, cover letter, and revised Chapter 74 authorization Exhibit 6: Email, cover letter, and Chapter 74 authorization including additional providers Exhibit 7: 2011 — 2014 Calendars

-2- T:\Cases\Del "foro.12041Pleadings\Opp to D Botla's NIS.I.docx The foregoing exhibits establish the following facts:

1. December 15, 2011 — Plaintiff was admitted to Nix Hospital (Exhibit 2) 2. December 17, 2011 — Defendant ordered a colon prep for a planned colonoscopy on December 18, 2011 (Exhibits 2 & 4) 3. December 18 — Date of diagnosis and first treatment of perforated colon (Exhibits 2 & 4) 4. June 11, 2013 - Chapter 74 notice letter with medical authorization sent to Gerardo Carcamo, M.D. (Exhibit 3) 5. November 20, 2013 -- Plaintiffs Original Petition against Gerardo Carcamo, M.D. filed 6. March 2, 2014 — Sunday (2 years, 75 days from December 17, 2011) (Exhibit 7) 7. March 3, 2014 — Monday, Plaintiffs First Amended Original Petition which named Defendant filed 8. March 3, 2014 — 2 years, 75 days from December 18, 2011 (Exhibit 7)

V. ARGUMENT AND AUTHORITIES

A. The Statute Of Limitations Is Two Years From The Date The Cause Of Action Accrues.

The applicable statute of limitations is two (2) years from the date the cause of action

accrued. Tex. Civ. Prac. & Rem. Code, Section 74.251(a). The cause of action accrues on the

date of the negligence. Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001). The dates of negligence

of Defendant are December 17, 2011 (Exhibit 2 — MLF/Del Toro/Nix Hosp.0255 - Nix Hospital

records: Defendant's order for the colon prep) and December 18, 2011 (Exhibit 2 — MLF/Del

Toro/Nix Hosp.0304 — Nix Hospital medical records: first date of diagnosis of perforated colon).

The statute of limitations, before tolling, expired on December 18, 2013 (Exhibit 7).

B. The Statute Of Limitations Is Tolled For Seventy-Five Days If Notice Is Provided To Any Person.

The statute of limitations in a health care liability claim is tolled for seventy-five (75)

days if a notice is provided to any person. Tex. Civ. Prac. & Rem. Code, Section 74.051(c);

Phillips v. Sharpstown Gen. Hosp., 664 S.W.2d 162, 165-66 (Tex. App. — Houston [151 Dist.]

1982, no writ). Notice to one person tolls the statute of limitations as to all persons. DeCheca v.

-3- TACases1 Del Toro. I 204 \Pleadings\Opp to D Botla's MS.T.clocx Diagnostic Center Hosp., Inc., 852 S.W.2d 935, 937 (Tex. 1993). Plaintiff provided a Chapter

74 notice to Gerardo Carcamo, M.D. on June 11, 2013, well within the 2 year statute of

limitations (Exhibit 3) and, thus, the statute of limitations was tolled as to all persons on such

date. After the seventy-five (75) day tolling period (August 25, 2013), the 2 year statute resumed

running for the remaining 190 days, such being March 3, 2014 (Exhi bit 7). Rowntree v,

Hunsucker, 833 S.W.2d 103, 104-05, n. 2 (Tex. 1992); Phillips at 165-66.

C. If A Notice Or Medical Authorization (Although Defective) Is Sent Well Within The Statute Of Limitations Or Substantially Complies With The Statute, Then The Tolling Provision Applies.

Plaintiff provided a Chapter 74 notice to Gerardo Carcamo, M.D. with a medical

authorization (Exhibit 3). The purpose of the notice and authorization is to provide the health

care provider, to whom notice is sent, an opportunity to investigate and to encourage negotiations

and settlement of disputes prior to suit, thereby reducing litigation costs. Garcia v. Gomez, 319

S.W.3d 638, 643 (Tex. 2010). Defendant herein did not receive notice and could not have

obtained any health care records of Plaintiff with the authorization, whether sufficient or not,

with the authorization provided to Gerardo Carcamo, M.D. Thus, Defendant herein does not

have standing to claim the authorization provided to Gerardo Carcamo, M.D. is insufficient

because he would not have been able to obtain any health care records with an authorization

allowing Gerardo Carcamo, M.D. to obtain health care records. However, assuming for purposes

of argument only, that the medical authorization provided to Gerardo Carcamo, M.D. is

insufficient, the only remedy is a 60 day abatement, not a waiver of the tolling provision, since

the notice and authorization were provided well within the statute of limitations. Carreras v.

Marroquin, 339 S.W.3d 68, 73-74 (Tex. 2013)(no medical authorization was provided and notice

was not given well within the statute of limitations — notice was sent only 2 days before the

-4-

T:\Cases\Del Toro.1204\Pleadings\Opp to D Botl a's MS.I.docx statute of limitations expired); Mitchell v. Methodist Hospital, 376 S.W.3d 833, 839 (Tex. App.

Houston [1st Dist.] 2012, pet. denied)(medical authorization which did not authorize health care

provider who received notice to obtain records, did not identify any other health care providers

during the previous five years, and not given well within the statute of limitations to allow

abatement prior to expiration of statute of limitations did not toll the statute of limitations). In

this case, notice was provided June 11, 2013 (Exhibit 3), approximately 190 days before the

statute of limitations expired, included a medical authorization, and identified other health care

providers during the five previous years.

Defendant claims the medical authorization is defective because it fails to track the exact

language of Chapter 74 and failed to list all other health care providers of Plaintiff in the

previous five (5) years. Although the authorization does not track the exact language of the

statute, it fulfilled the purpose of the statute because it did not prohibit the obtaining of health

care records or the opportunity for pre-suit settlement. When Defendant Gerardo Carcamo, M.D.

requested a revised medical authorization, it was provided (Exhibit 5). Further, when Defendant

Gerardo Carcamo, M.D. requested another authorization with inclusion of additional health care

providers, it was provided (Exhibit 6). Substantial compliance with mandatory provisions of a

statute suffices if the noncompliance satisfies the purpose of the statute. Butler v. Taylor, 981

S.W.2d 742-43 (Tex. App. — Houston [1St Dist.] 1998, no pet.)(service of notice by express mail

rather than certified mail, return receipt requested, was substantial compliance because the

purpose of the notice statute was satisfied); Rabatin v. Kidd, 281 S.W.3d 558, 562 (Tex. App. --

El Paso 2008, no pet.)(improperly filled out medical authorization which excluded other health

care providers during previous five years was sufficient to toll statute of limitations); Nicholson

v. Shinn, 2009 WL 3152111 (Tex. App. — Houston [1st Dist.] October 1, 2009, no pet,)(no

TACases\Del Toro.1204\Pleadings\Opp to D Botla's MS,I.docx medical authorization was provided and thus, no substantial compliance); Mock v. Presbyterian

Hospital of Plano, 379 S.W.3d 391, 395 (Tex. App. — Dallas 2012, pet. denied)(one of the blanks

in the medical authorization was incorrectly completed but sufficient to toll the statute of

limitations); Mitchell v. Methodist Hospital, 376 S.W.3d 833, 837-38 (Tex. App. — Houston [1st

Dist.] 2012, pet. denied)(medical authorization which did not identify health care provider as

authorized to obtain records, did not identify any other health care providers during previous five

years, and not given well within the statute of limitations was insufficient to toll statute of

limitations); Cantu v. Mission Regional Medical Center, 2014 WL 1879292 (Tex. App. - Corpus

Christi May 8, 2014, no pet.)(HIPAA medical authorization which did not authorize any

defendant to obtain medical records was insufficient to toll statute of limitations),

D. The Statute Of Limitations Provision Which Provides "Notwithstanding By Any Other Law" Does Not Foreclose Procedural Rules.

Section 10.01 provides for a strict two year statute of limitations "notwithstanding by any

other law". However, Texas Courts have held that such language does not foreclose rules which

are procedural in nature. Chilkwitz v. Hyson, 22 S.W.3d 825 (Tex. 1999)(Rule 28 — Suits in

Assumed Name is procedural and is not foreclosed by such language); Forrest v. Danielson, 77

S.W.3d 842 (Tex. App. — Tyler 2002, no writ)(Rule 5 Enlargement of Time is procedural and is

not foreclosed by such language). Rule 4 Tex. R. Civ. P. is a procedural rule and provides as

follows:

In computing any period of time prescribed or allowed by these rules, by order of the court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday (emphasis added).

-6- \Cases\Del Toro.I204\ PleadingslOpp to D Botla's MS.I.docx Consistent with Rule 4, Tex. R. Civ. P., Tex. Civ. Prac. & Rem, Code Ann. Section 16.072

(Vernon's 1986) provides:

If the last day of a limitations period under any statute of limitations falls on a Saturday, Sunday, or holiday, the period for filing suit is extended to include the next day that the county offices are open for business (emphasis added).

Therefore, if the statute of limitations expired on Sunday, March 2, 2014 as to any portion of

Plaintiff's claims, then the deadline was extended to the following Monday, March 3, 2014

(Exhibit 7).

VI. CONCLUSION

Plaintiff provided a Chapter 74 notice letter and medical authorization, which

substantially complied with the purpose of the statute, well within the two (2) year statute of

limitations. Even if the medical authorization did not substantially comply, the seventy-five (75)

day tolling applies. The statute of limitations, after tolling, expired on March 3, 2014 and if

found to have expired on Sunday, March 2, 2014, then such deadline was extended, by rule and

statute, to Monday, March 3, 2014. Plaintiff's suit filed on Monday, March 3, 2014 is not barred

by the statute of limitations and, thus, Defendant's motion for summary judgment based upon his

affirmative defense of the statute of limitations should be denied.

WHEREFORE PREMISES CONSIDERED, Plaintiff Salvador Del Toro, Jr. respectfully

prays that Defendant Ravi Botla, M.D.'s Motion for Summary Judgment be denied and that this

Court order such other and further relief to which he is justly entitled.

7 TACases1Del Toro.1204\Pleadings\ Opp to D Botl a's MS.1.docx Respectfully submitted,

MAUZE LAW FIRM 2632 Broadway, Suite 401 South San Antonio, Texas 78215 Telephone: (210) 225-6262 Telecopier: (210) 354-3909

george W. Mau4. State Bar No. 13238800

ATTORNEY FOR PLAINTIFFS

I hereby certify that on this 4th day of September, 2014, a true and correct copy of

Plaintiffs Opposition to Defendant Ravi Botla, M.D.'.s Motion for Summary Judgment and for

Severance of Defendant Ravi Botla, M.D. has been sent by certified mail, return receipt

requested to:

Mr. W. Richard Wagner, Esq. Wagner Cario, LLP 7718 Broadway, Suite 100 San Antonio, TX 78209

Mr. Brett B. Rowe, Esq. Evans, Rowe & Holbrook, P.C. 10101 Reunion Place, Suite 900 San Antonio, Texas 78216

8 T:\Cases\Dcl Toro.12041Pleadings\Opp to D Botla's IVISIdoex CAUSE NO: 2013-CI-19135

V. 131" JUDICIAL DISTRICT

GERARDO E. CARCAMO, M.D. AND RAVI BOTLA, M.D. BEXAR COUNTY, TEXAS

PLAINTIFF'S THIRD AMENDED ORIGINAL PETITION

NOW COMES Salvador Del Toro, Jr. (hereinafter referred to as "Plaintiff') and files this

Third Amended Original Petition complaining of Gerardo E. Carcamo, M.D. (hereinafter referred to

as "Defendant Carcamo") and Ravi Botla, M.D. (hereinafter referred to as "Defendant

Botla")(hereinafter collectively referred to as "Defendants") and for cause of action would show unto

Pursuant to Tex. R. Civ. P. 190, discovery in this case is intended to be conducted under

Plaintiff, Salvador Del Toro, Jr., at all times relevant to this lawsuit, has been an individual

Defendant, Gerardo E. Carcamo, M.D., is, and at all times relevant to this lawsuit has been, a

physician duly licensed to practice medicine in the State of Texas and resides in Bexar County,

1 TACases\Del Toro,1204\PleadingsTetition-AM3.docx Defendant, Ravi Botla, M.D., is, and at all times relevant to this lawsuit has been, a physician

duly licensed to practice medicine in the State of Texas and resides in Bexar County, Texas. Said

III. VENUE AND JURISDICTION

This Court has jurisdiction of this cause because the damages sought are within the

jurisdictional limits of this Court. Venue is proper in Bexar County, Texas in that such is the county

This lawsuit is founded upon medical negligence committed by Defendants.

On or about December 15, 2011, Mr. Del Toro presented himself to Dr. James Lackey for

increased lower abdominal pain for 3 — 4 days, nausea, and vomiting. He was fatigued and had not

been eating or taking many fluids. He had a history of diverticulitis and hospitalizations for acute

diverticulitis, the most recent approximately 1 month prior. A CT scan was ordered and performed,

such reflecting findings of ". . a severely diseased sigmoid colon with underlying diverticular

burden and a stricture". Mr. Del Toro was referred to Nix Hospital where he was further evaluated

and assessed by Bridget K. Fiechtner, M.D. Dr. Fiechtner noted he was in mild distress with pain,

his abdomen was distended, and bowel sounds were hypoactive. She reviewed the CT scan and

noted the stricture is of particular concern because it appears to be partially obstructing the colon.

Based On Dr. Fiechtner's assessment and CT review, Mr. Del Toro was admitted for further

treatment and evaluation. On December 16, 2011, Mr. Del Toro was seen in consultation by

Defendant Carcamo who recommended a plan for surgery — either laparoscopic or possible open 2 T: \ Cases \De! Toro.1 204\ PleadingslPetition-AM3.docx colon resection with possible colostomy placement, Mr. Del Toro agreed to the surgery but wanted

it performed by a surgeon in Austin who had previously performed surgeries on family members.

After the hospital inquired with the surgeon in Austin and discovered he would not be available until

Monday, Mr. Del Toro requested surgery that day by Defendant Carcamo. Defendant Carcamo had

left the hospital already and informed the nursing staff that he would see Mr, Del Toro the next

morning. The next morning, Defendant Botla, a gastroenterologist, consulted with Mr. Del Toro.

He recommended a colonoscopy. Mr. Del Toro refused the colonoscopy and again expressed his

decision to proceed with the surgery recommended by Defendant Carcamo. Defendant Carcamo

spoke to Mr. Del Toro who again expressed his decision to proceed with the recommended surgery,

but Defendant Carcamo changed his plan and now recommended Mr. Del Toro proceed first with a

colonoscopy. He explained the "importance of colonoscopy" and persuaded Mr. Del Toro to

consent. On December 17, 2011, Defendant Botla ordered, and Mr. Del Toro was administered,

GoLYTELY for gastrointestinal prep prior to colonoscopy, He did not have a bowel movement after

the GoLYTELY was administered. Shortly thereafter, Mr. Del Toro began complaining of severe

pain to his abdomen. Both Defendants were notified. Mr. Del Toro's abdominal pain worsened to a

scale of 10 out of 10, he began crying, and was very upset. He suffered severe pain for the next 12

hours. A CT scan was ordered STAT on the morning of December 18, 2014, It revealed the

presence of free air, such indicative of a perforated colon. He was emergently taken to the operating

room and Defendant Carcamo performed an exploratory laparotomy. He found a perforation in the

right colon, fecal contamination of the peritoneum which had progressed to peritonitis and sepsis,

and he performed a right hemicolectomy (necessitated because of the perforated colon from the colon

prep), sigmoidectomy (necessitated because of the diverticulitis, stricture, and obstruction), and end- 3 T:\Cases1Del Toro.1204\Pleadings\Petition-AM3,docx colostomy with Hartmann pouch (necessitated because of the sigmoidectomy) and wound VAC

placement. On December 21, 2011, Mr. Del Toro underwent another exploratory laparotomy,

drainage of an intra-abdominal abscess, colostomy revision, placement of wound VAC, and refill of

ONQ pump. Mr. Del Toro remained hospitalized until December 30, 2011. He was re-admitted in

February 2012 and on February 17, 2012, Defendant Carcamo performed laparoscopic adhesiolysis

and a cholecystectomy. Mr. Del Toro again was admitted to the hospital in March 2012 and

Defendant Carcamo performed another laparoscopic adhesiolysis, laparoscopic splenic flexure

takedown, laparoscopic colostomy reversal, and parastomal hernia repair.

V. NEGLIGENCE OF DEFENDANT CARCAIVIO

Defendant Carcamo owed a general duty of care to Salvador Del Toro, Jr., to provide health

care, attention and/or treatment as a reasonably prudent general surgeon would have under the same

or similar circumstances. Such duty required that said Defendant Carcamo render health care in

conformity with the minimum applicable standard of care for a person under the same or similar

circumstances as Salvador Del Toro, Jr. Said Defendant breached that duty by engaging in the

following acts and/or omissions to act, such constituting negligence:

1. failing to appropriately treat Mr. Del Toro for a severe diseased sigmoid colon with diverticular burden, stricture, and obstruction;

2. recommending a colonoscopy which requires colon preparation when such was contraindicated because of the suspected gastrointestinal obstruction;

3. failing to timely diagnose and treat the colon perforation; and

4. failing to otherwise provide medical attention, care and/or treatment to a patient in the same or similar condition in accordance with the applicable standard of care.

4 T:\Cases\Del Toro.1204\Pleadings\Petition-AM3.docx Such acts and/or omissions to act, whether taken singularly or collectively, constitute a direct

and proximate cause of the injuries and damages of Salvador Del Toro, Jr. for which he seeks

Defendant Botla owed a general duty of care to Salvador Del Toro, Jr., to provide health care,

attention and/or treatment as a reasonably prudent internal medicine physician/gastroenterologist

would have under the same or similar circumstances. Such duty required that said Defendant Botla

render health care in conformity with the minimum applicable standard of care for a person under the

same or similar circumstances as Salvador Del Toro, Jr. Said Defendant breached that duty by

engaging in the following acts and/or omissions to act, such constituting negligence:

I. recommending a colonoscopy, which requires colon preparation, when it was known that Mr. Del Toro had severe sigmoid disease, stricture, and obstruction;

2. ordering GoLYTELY to prepare his colon for a colonoscopy which is contraindicated in a patient suspected of having a gastrointestinal obstruction;

3. failing to timely diagnose and treat the colon perforation; and

4. failing to otherwise provide medical attention, care and/or treatment to a patient in the same or similar condition in accordance with the applicable standard of care.

Such acts and/or omissions to act, whether taken singularly or collectively, constitute a direct

and proximate cause of the injuries and damages of Salvador Del Toro, Jr. for which he seeks

5 T:\Cases\Del Toro.1204\PleadingsTetition-AM3.docx VII. DAMAGES

As a direct and proximate cause of the negligence of Defendants, Salvador Del Toro, Jr. has

suffered injuries, including severe physical and mental pain and anguish which based upon a

reasonable degree of medical probability, he will continue to suffer for many years in the future, if

not for the balance of his natural life. Additionally, Mr. Del Toro suffered physical impairment and a

loss of enjoyment of life which, based upon a reasonable degree of medical probability, he will

continue to suffer in the future. Furthermore, he has sustained a loss of income and/or loss wage

earning capacity. As a result of his injuries, Mr. Del Toro has also incurred substantial reasonable

medical and other health care expenses for necessary medical and health care and, based upon a

reasonable degree of medical probability, he will continue to incur reasonable expenses for necessary

Plaintiff would further show that on or about June 11, 2013, more than sixty (60) days prior

to filing of this cause, he provided written notice of said claim by certified mail return receipt

requested to Defendant Careamo. Plaintiff otherwise fully complied with the notice provisions

pursuant to Section 74.051(a) of the Texas Civil Practices & Remedies Code. A true and correct

copy of said notice is attached hereto marked as Exhibit "A" and is incorporated herein by reference

The statute of limitations prohibited the providing of written notice of said claim to

Defendant B o tl a.

6 T:\Cases\Del Toro.1204\Pleadings\Petition-AM3.docx WHEREFORE, PREMISES CONSIDERED, Plaintiff Salvador Del Toro, Jr. respectfully

prays that, upon final trial, Plaintiff have and recover judgment in his favor against Defendants,

1. actual damages within the jurisdictional limits of this Court;

2. pre-judgment and post-judgment interest at the maximum rate allowed by law;

4. such other and further relief at law or in equity, general or special, to which Plaintiff may be justly entitled.

MAUZE LAW FIRM 2632 Broadway, Suite 401S San Antonio, Texas 78215 Telephone: 210.225.6262 Facsimile: 210.354.3909

B eorge W. Ma9 , TBC #13238800 ATTORNEY FOR PLAINTIFF

I hereby certify that on this 4th day of September, 2014, a true and correct copy of Plaintiffs Third Amended Original Petition has been sent by via fax and regular mail to:

Mr. W. Richard Wagner, Esq. Mr. Brett B. Rowe, Esq. Wagner Cario, LLP Evans, Rowe & Holbrook, P.C. 7718 Broadway, Suite 100 10101 Reunion Place, Suite 900 San Antonio, TX 78209 San Antonio, TX 78216

7 T:\Cases\Del Toro.12041Pleadings1Petition-AM3.docx VAUZE LAW F 4112) .1-\\ JUI1 GEORGE W. MAUZE, II, ATTORNEY 2632 BROADWAY SUITE 401 South SAN ANTONIO, TEXAS 78215 TELEPHONE 210.225.6262 FACSIMILE' 210.354.3909 EMAIL: gmauze@mauzelawfirm.com WVVW.MAOZELAWFIRM.COM

PERS NAL & CONFIDENTIAL CMRRR #7012-3050-0002-3901-1372 Gerardo E. Carcamo, M.D. 414 Navarro, Suite 810 San Antonio, TX 78205

Please be advised that our law firm has been retained by Salvador Del Toro, Jr. to represent him in any and all claims he may have against you arising from the facts stated herein.

On or about December 15, 2011, Mr. Del Toro was admitted to Nix Hospital after being evaluated by Dr. James Lackey with the Riverwalk Clinic for increased lower abdominal pain, nausea, and vomiting. After a CT scan obtained by the Riverwalk Clinic showed findings of ". . •a severely diseased sigmoid colon with underlying diverticular burden and a stricture," he was referred to Nix Hospital where he was further evaluated and assessed by Bridget K. Fiechtner, M.D. Based on Dr. Fiechtner's assessment and CT scan findings, Mr. Del Toro was admitted for further treatment and evaluation and discussed the patient's case with you. On December 16, 2011 Mr. Del Toro was seen in consultation by you. On the evening of December 17, 2011, you ordered and Mr. Del Toro was given GoLYTELY for gastrointestinal prep prior to colonoscopy. Shortly thereafter, he began having worsening abdominal pain throughout the evening with vomiting. On December 18, 2011 at approximately 5:00 o'clock a.m., Mr. Del Toro had worsening and change in the quality of his pain. He was sent emergently for a CT of the abdomen and pelvis which revealed the presence of free air consistent with perforation of a hollow viscus. You were called and Mr. Del Toro was emergently taken to the operating room on December 18, 2011. Due to the perforation of his colon, you immediately performed a right hemicolectomy, sigmoidectomy, and end-colostomy with Hartmann pouch and wound VAC placement. On December 21, 2011, Mr. Del Toro underwent another surgery by you for washout and wound VAC change. Mr. Del Toro remained hospitalized until December 30, 2011. Since then, Mr. Del Toro has necessitated frequent medical attention, necessitated and undergone two additional corrective surgeries.

The complications associated from the perforation of his colon which you "expected", have caused him severe pain and mental anguish, severe discomfort, disfigurement, and financial hardship. Although, you clearly knew of his partial obstruction in his colon based on the CT findings, you ordered GoLYTELY which is contraindicated in a patient suspected of having gastrointestinal obstruction. You further state in your December 18, 2011, operative report, that "Unfortunately he was unable to have a bm'as expected' and he perforated.". Dr. Carcamo June 11, 2013 Page 2

The foregoing acts and omissions to act constitute negligence. As a result of such negligence, Mr. Del Toro has suffered severe medical complications associated with his perforated colon.

In accordance with Chapter 74.051(a) of the Texas Civil Practices & Remedies Code, this letter constitutes your sixty (60) days notice that Salvador Del Toro, Jr. intends to assert health care liability claims against you. If this matter is not resolved within sixty (60) days, then a lawsuit will be filed.

In an effort to settle this claim without the necessity of filing a lawsuit, my client hereby tenders an offer of settlement to you in the amount of Eight Hundred Thousand Dollars ($800,000.00), such consisting of $250,000.00 for noneconomic damages plus economic damages including loss of income, and health care expenses in the amount of $550,000.00,

Attached hereto is a release for medical records in accordance with §74.052 of the Texas Civil Practice & Remedies Code. Additionally, please accept this letter as our request for copies of any and all medical records, diagnostic studies, whether digital, or film Enclosed herewith is a HIPAA release authorizing you to provide true, correct, and complete copies of same.

The standard professional liability insurance policy requires that the insured promptly give the insurance carrier notice of any claim. If you or your insurance carrier wish to discuss an amicable and expedient resolution of this claim, then please do not hesitate to give me a call.

George W, MauzVII GWM/ag enclosures xc: Mr. Salvador Del Toro, Jr. AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION PURSU NT TO TEX. CIAO. PRAC. & REM. CODE, CHAPTER 74 § 74.052

A. I, Salvador Del Toro, Jr. (name of patient or authorized representative), hereby authorize Gerardo E. Camara°, M.D. (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) to Mame Law Firm 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 Salvador Del Toro, Jr. (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:

Nix Hospital, 414 Navarro, San Antonio, TX 78205 Gerardo E. Carcamo, M.D., 414 Navarro, Suite 830, San Antonio, TX 78205

This authorization shall extend to any additional physicians or health care providers that may in the future evaluate, examine, or treat Salvador Del Toro, Jr. (patient) for injuries alleged in connection with the claim made the basis of the attached Notice of Health Care Claim; and

2. The health information in the custody of the following physicians or health care providers who have examined, evaluated, or treated Salvador Del Toro, Jr. (patient) during a period commencing five years prior to the incident made the basis of the accompanying Notice of Health Care Claim:

Riverwalk Clinic, 414 Navarro, Suite 809, San Antonio, TX 78205 Val Verde Regional Medical Center, 801 Bedell Avenue, Del Rio, TX 78840 Antonio Cadena, M.D., 2201 North Bedell, Suite A, Del Rio, TX 78840

C. Excluded Health Information—the following constitutes a list of physicians or health care providers possessing health care information concerning Salvador Del Toro, Jr. (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 Salvador Del Toro, Jr. (patient) arising out of the claim made the basis of the accompanying Notice of Health Care Claim: NONE.

D. The persons or class of persons to whom the health information of Salvador Del Toro, Jr. (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 Salvador Del Toro, Jr. (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 Salvador Del Toro, Jr. (patient); 3. Any consulting or testifying experts employed by or on behalf of Gerardo E. Carcamo, M.D. (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 Gerardo E. Carcamo, M.D. (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; and 5. Any trier of the law or facts relating to any suit filed seeking damages arising out of the medical care or treatment of Salvador Del Toro, Jr. (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 ati t:

Date: /1/3 Sa vadorlel Toro, Jr. (

Patient's Name: Salvador Del Toro, Jr. Patient's D.O.B.: 12.25.1973 Patient's SSN: 451.77,9676 AUTHOWATfiON F RM RELEASE OF PROTECTED HEALTH ONIF •RMATIO

A. I, Salvador Del Toro, Jr., hereby authorize Gerardo E. Carcamo, M.D. to obtain and disclose to Mauze Law Firm (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 my potential claim for damages arising from injuries I have sustained.

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 Salvador Del Toro, Jr. in connection with the injuries alleged to have been sustained.

C. The persons or class of persons to whom the health information of Salvador Del Toro, Jr. 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 Salvador Del Toro, Jr.; 2. Any liability insurance entity providing liability insurance coverage or defense to any person hereafter named as Defendant; 3. Any consulting or testifying experts employed by or on behalf of any person hereafter named as a Defendant; 4. Any attorneys (including secretarial, clerical, or paralegal staff) employed by or on behalf of any person hereafter named as a Defendant; and 5. Any trier of the law or facts relating to any suit filed seeking damages arising out of the injuries and damages sustained by Salvador Del Toro, Jr..

D. 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.

E. I understand that the signing of this authorization is not a condition for continued Treatment, payment, enrollment, or eligibility for health plan benefits.

F. 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.

G. This authorization will expire 12 months from the date of execution by the representative of the patient. H. Copies of this Authorization shall be deemed the same as the original. Also, facsimile copies or electronic versions of a signature of any party shall be deemed the same as the original.

Signatur9„of- .tient:

Date: el Toro, Jr.

Name of Patient: Salvador Del Toro, Jr. Patient's D.O.B.: 12.25.1973 Patient's SSN: 451.77.9676 USPS.COM® - Track & Confirm

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GE)4:!,:33B4EDBB78E171=E3 DELTORO NIX HEALTH . ARE SYSTEM CONSULTATION REPORT

CONSULTANT: Ravi Sofia, M.D. DATE OF CONSULT: 12/17/2011

PRIMARY CARE PHYSICIAN: Dr. S. Somasundaravelayudha i:4 PRIMARY REASON FOR CONSULTATION: Left lower quadrant abdominal pain and diverticulitis.. -• • ••• • HISTORY: Dr. S. Somasundaravelayudha kindly asked me to evaluate Mr. DelToro, who is a 37- year-old morbidly obese Latin-American male, who was admitted on 12/15/11 for diverticulitis. History of left lower quadrant abdominal pain for three days duration without any characteristic radiation associated nausea, vomiting. No history of constipation, diarrhea, stool bleeding or melena. History of similar episode two to three weeks ago, three months ago and three to four months ago. He apparently seen at the ER in Austin for a prior evaluation. No history of fever. No history of weight loss.

PAST MEDICAL HISTORY: Significant for hypertension, morbid obesity.

PAST SURGICAL HISTORY: None.

SOCIAL HISTORY: The patient works as an officer at a correction facility. Ten pack history of smoking, No history of drinking. No history of substance abuse,

FAMILY HISTORY: Nil particular for gastrointestinal malignancies or liver diseases.

MEDICATIONS: Before coming to the hospital he was on Bentyl. In the hospital, he is on - 1. Lisinopril. 2, Metronidazole, 3. Zosyn. 4. Docusate sodium.

ALLERGIES: None,

REVIEW OF SYSTEMS: Denies any history of chest pain, history of abdominal pain present, history of nausea or vomiting presently. No history of constipation, diarrhea, rectal bleeding or melena.

EXAMINATION: The patient is alert, well oriented, morbidly obese Latin-American male not in any acute distress. VITAL SIGNS: Pulse 88/minute, respiratory rate 20/minute, blood pressure 133/86, afebrile. RENT: No jaundice. Bilateral significant parotid enlargement. A short thin neck is seen. HEART: S1 present, S2 present, S3 zero, no murmurs. (NJ O PATIENT: DELTORO, SALVADOR MEDICAL RECORD #: 76-31-01 0 U) DATE OF BIRTH: 12/2511973 AGE: 37 PATIENT #: 00104300330 0 SEX: M HOSPITAL SERVICE: MED 12/15/2011 PATIENT LOCATION: ADMISSION DATE: 18TH181701 z 0 Pagel of 3 0 CONSULTATION REPORT a)

CD4333B4EDBB78E17FE8.DELTOR0.252 2 O NIX HEALTH L..-kRE SYSTEM CONSULTATION REPORT

LUNGS: Clear bilaterally with good air entry. ABDOMEN: Morbidly obese abdomen. Tenderness present in the right side of the abdomen in the left lower quadrant region without any guarding or rebound. Bowel sounds are good. No palpable hepatosplenomegaly, no palpable mass lesions in the abdomen. EXTREMITIES: Lower extremities, no pedal edema. NEUROLOGICAL: Alert, well oriented, no gross motor deficits.

LABS: White count 16.6000, hemoglobin 14.2, hematocrit 41.3, platelet count 348,000, prothrombin time of 12.1 seconds with an INR of 1.1. CHEM panel is normal except for potassium of 3,4. Liver function tests were normal, Amylase and lipase were normal.

Right upper quadrant sonogram showed gallstones and fatty liver.

CT of the abdomen and pelvis showed severe sigmoid colon diverticulosis and mild diverticulitis, sigmoid colon stricture, no abscess.

IMPRESSION: Thirty-seven-year-old morbidly obese Latin-American male, with history of hypertension, diverticulitis presented with recurrent diverticulitis, The patient has three episodes of diverticulitis in the last four years duration, mild tenderness in the left lower quadrant and right side of the abdomen. The patient has evidence of sigmoid colon stricture by imaging studies, this is most likely secondary to recurrent diverticulitis and fibrosis. I need to rule out malignancy, Apparently, the patient never had a colonoscopy after previous episodes of diverticulitis. The current episode of diverticulitis seems to be mild.

PLAN: Clear liquid diet. Continue empiric antibiotics. Colon prep today and I recommend a colonoscopy for further evaluation, The procedure, benefits, alternatives and complications including bleeding, perforation and aspiration and respiratory difficulties from his morbid obesity were explained to the patient and his family members at the bedside, He is very skeptical about colonoscopy and biopsies at this time. He has not decided about proceeding with the colonoscopy study. I will schedule the colonoscopy in one or two days time if the patient consents for the procedure.

Thank you very' much for allowing me to evaluate Mr, DelToro.

Ravi Botla, M,D.

PATIENT: DELTORO, SALVADOR MEDICAL RECORD #: 76-31-01 DATE OF BIRTH: 12125(1973 AGE: 37 PATIENT #: 00104300330 SEX: M HOSPITAL SERVICE: MED ADMISSION DATE: 12/15/2011 PATIENT LOCATION: 18TH181701

Page 2 of 3 CONSULTATION REPORT

CD4333B4EDBB70E17FE8.DELTOR0.253 NIX HEALTH SYSTEM CONSULTATION REPORT

RB/nbn DD: 12/17/2011 7:52 A DT: 12/17/2011 8:54 A 000326885

cc: Ravi Botla, M.D. Gerardo Carcamo, M.D. Bridget K. Fiechtner, M.D. Armando Quinones, M.D. S. Somasundaravelayudha, M.D..

PATIENT: DELTORO, SALVADOR MEDICAL RECORD #: 76-31-01 DATE OF BIRTH: 12/2511973 AGE: 37 PATIENT #: 00104300330 SEX: M HOSPITAL SERVICE: MED ADMISSION DATE: 12/1512011 PATIENT LOCATION: 18TH181701

Page 3 of 3 CONSULTATION REPORT

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Form# NSG-1116 00433354EDBB78E17FE8 DELTORO 312 Pt '.- 0 'CiF. foilikliiiii:401V41,00-00d:*is01001.04gEt ,.!• DATE TIME .. ..,. cliEcKEPINIAittoLOMN.ByTitkOstAii30,Nixtf4egkoMtiotii F. 1?-_-).-- .•__., --.)--- • ,CplD ❑

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DO NOT USE ABBREVIATIONS \ MS MS04 MGSO4 QD QOD IU Zero after the decimal point Lack of leading zero beflore Int 2 ci.. .5(5, \----7?s. 1., •--1 - i --.---4)t:- ,. ---p,___.--- 2 : nix WEALTH ,-

.. - - I.../ F..) ! .:“. vitO.V,R ,, z • ,. t_ ,_ - . : ... .'.. , ,.. • 4 I) . , i :: --,-. . . , .. 0 I, i__. Physician Order .';:-.JD',.-.., , 2 (:) , I-- Page 1 of 1 Q) 1 0 ii. CD433364 ED8676E1 7FE8 DEL T:DRO ?65 ". /Aat,-. LAW F GEORGE W. MAUZE, II, ATTORNEY 2632 BROADWAY SUITE 401 South SAN ANTONIO, TEXAS 78216 TELEPHONE 210.225.5262 FACSIMILE'210.354.3909 EMAIL: gmauze@mauzelawtirm.corn WWW.MAUZELAWFIRM,COM

PERSONAL & CONFIDENTIAL ClVIRRR #7012-3050-0002-3901-1372 Gerardo E. Carcarno, M.D. 414 Navarro, Suite 810 San Antonio, TX 78205

Please be advised that our law firm has been retained by Salvador Del Toro, Jr. to represent him in any and all claims he may have against you arising from the facts stated herein.

On or about December 1.5, 2011, Mr. Del Toro was admitted to Nix Hospital after being evaluated by Dr. James Lackey with the Riverwalk Clinic for increased lower abdominal pain, nausea, and vomiting. After a CT scan obtained by the Riverwalk Clinic showed. findings of ". a severely diseased sigmoid colon with underlying diverticular burden and a stricture," he was referred to Nix Hospital where he was further evaluated and assessed by Bridget K. Fiechtner, M.D. Based on Dr. Fiechtner's assessment and CT scan findings, Mr. Del. Toro was admitted for further treatment and evaluation and discussed the patient's case with you. On December 16, 2011 Mr. Del Toro was seen in consultation by you. On the evening of December 17, 2011, you ordered and Mr. Del Toro was given GoLYTELY for gastrointestinal prep prior to colonoscopy. Shortly thereafter, he began having worsening abdominal pain throughout the evening with vomiting, On December 18, 2011 at approximately 5:00 o'clock a.m., Mr. Del Toro had worsening and change in the quality of his pain. He was sent emergently for a CT of the abdomen and pelvis which revealed the presence of free air consistent with perforation of a hollow viscus. You were called and Mr. Del Toro was emergently taken to the operating room on December 18, 2011. Due to the perforation of his colon, you immediately performed a right hemicolectorny, sigmoidectomy, and end-colostomy with Hartmann pouch and wound VAC placement. On December 21, 2011, Mr. Del Toro underwent another surgery by you for washout and wound VAC change. Mr. Del Toro remained hospitalized until December 30, 2011. Since then, Mr, Del Toro has necessitated frequent medical attention, necessitated and undergone two additional corrective surgeries.

The complications associated from the perforation of his colon which you "expected", have caused him severe pain and mental anguish, severe discomfort, disfigurement, and financial hardship. Although, you clearly knew of his partial obstruction in his colon based on the CT findings, you ordered GoLYTELY which is contraindicated in a patient suspected of having gastrointestinal obstruction. You further state in your December 18, 2011, operative report, that "Unfortunately he was unable to have a bm as expected' and he perforated.".

PLAINTIFF'S EX MIT Dr. Carcamo June 11, 2013 Page 2

The foregoing acts and omissions to act constitute negligence. As a result of such negligence, Mr. Del Toro has suffered severe medical complications associated with his perforated colon.

In accordance with Chapter 74.051(a) of the Texas Civil Practices & Remedies Code, this letter constitutes your sixty (60) days notice that Salvador Del Toro, Jr. intends to assert health care liability claims against you. If this matter is not resolved within sixty (60) days, then a lawsuit will be filed.

In an effort to settle this claim without the necessity of filing a lawsuit, my client hereby tenders an offer of settlement to you in the amount of Eight Hundred Thousand Dollars ($800,000.00), such consisting of $250,000.00 for noneconomic damages plus economic damages including loss of income, and health care expenses in the amount of $550,000.00.

Attached hereto is a release for medical records in accordance with §74.052 of the Texas Civil Practice & Remedies Code. Additionally, please accept this letter as our request for copies of any and all medical records, diagnostic studies, whether digital, or film. Enclosed herewith is a HIPAA release authorizing you to provide true, correct, and complete copies of same.

The standard professional liability insurance policy requires that the insured promptly give the insurance carrier notice of any claim. If you or your insurance carrier wish to discuss an amicable and expedient resolution of this claim, then please do not hesitate to give me a call.

Geolie W. Mauze I GWM/ag enclosures xc: Mr. Salvador Del Toro, Jr. AUTH •RIZATION FORM FOR RELEASE OF P • OTECTED HEALTH INFORMATION PURSUANT T TEX. CIV. PRA C. & REM. C • , DE, CHAPTE* 74 § 74.052

A. I, Salvador Del Toro, Jr. (name of patient or authorized representative), hereby authorize Gerardo E. Carcamo, M.D. (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) to Mame Law Firm 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 Salvador Del Toro, Jr. (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:

Nix Hospital, 414 Navarro, San Antonio, TX 78205 Gerardo E. Carcamo, M.D., 414 Navarro, Suite 830, San Antonio, TX 78205

This authorization shall extend to any additional physicians or health care providers that may in the future evaluate, examine, or treat Salvador Del Toro, Jr. (patient) for injuries alleged in connection with the claim made the basis of the attached Notice of Health Care Claim; and

2. The health information in the custody of the following physicians or health care providers who have examined, evaluated, or treated Salvador Del Toro, Jr. (patient) during a period commencing five years prior to the incident made the basis of the accompanying Notice of Health Care Claim:

Riverwalk Clinic, 414 Navarro, Suite 809, San Antonio, TX 78205 Val Verde Regional Medical Center, 801 Bedell Avenue, Del Rio, TX 78840 Antonio Cadena, M.D., 2201 North Bedell, Suite A, Del Rio, TX 78840

C. Excluded Health Information—the following constitutes a list of physicians or health care providers possessing health care information concerning Salvador Del Toro, Jr. (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 Salvador Del Toro, Jr, (patient) arising out of the claim made the basis of the accompanying Notice of Health Care Claim: NQNE.

The persons or class of persons to whom the health information of Salvador Del Toro, Jr. (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 Salvador Del Toro, Jr. (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 Salvador Del Toro, Jr. (patient); 3. Any consulting or testifying experts employed by or on behalf of Gerardo E. Carcamo, M.D. (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 Gerardo E Carcarno, M.D. (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; and 5. Any trier of the law or facts relating to any suit filed seeking damages arising out of the medical care or treatment of Salvador Del Toro, Jr. (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.

Date: 1 ;// Sal(vador"ljel Toro, Jr.

Patient's Name: Salvador Del Toro, Jr. Patient's D.O.B.: 12.25.1973 Patient's SSN: 451.77.9676 AUTHORIZATI 0N FORM RELEASE OF PR TECTED HEALTH ONF 0RMATOON

A. 1, Salvador Del Toro, Jr., hereby authorize Gerardo E. Camara°, M.D. to obtain and disclose to Mauze Law Firm (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 my potential claim for damages arising from injuries 1 have sustained.

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 Salvador Del Toro, Jr. in connection with the injuries alleged to have been sustained.

C. The persons or class of persons to whom the health information of Salvador Del Toro, Jr. 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 Salvador Del Toro, Jr.; 2. Any liability insurance entity providing liability insurance coverage or defense to any person hereafter named as Defendant; 3. Any consulting or testifying experts employed by or on behalf of any person hereafter named as a Defendant; 4. Any attorneys (including secretarial, clerical, or paralegal staff) employed by or on behalf of any person hereafter named as a Defendant; and 5. Any trier of the law or facts relating to any suit filed seeking damages arising out of the injuries and damages sustained by Salvador Del Toro, Jr.,

D. 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.

E. I understand that the signing of this authorization is not a condition for continued Treatment, payment, enrollment, or eligibility for health plan benefits.

F. 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.

G. This authorization will expire 12 months from the date of execution by the representative of the patient. H. Copies of this Authorization shall be deemed the same as the original. Also, facsimile copies or electronic versions of a signature of any party shall be deemed the same as the original.

Signaturs,of-Elient:

Date: Salve o lel Toro, t•

Name of Patient: Salvador Del Toro, Jr. Patient's D.O.B.: 12.25.1973 Patient's SSN: 451.77.9676 7/11/13 USPS.coMeo- Track& Confirm

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7012 3050 0002 3901 1372

htlpS://tools.us ps c orn/g off rackConfi r rnActi on. ac ti on 1/1 TwRavl Aotia, N.D, ProM:Medieal llooe.)rd 01/01/2012. OV:31:10 PM PaKe 2 or

NIX HEALTH CARE SYSTEM DISCHARGE SUMMARY

DATE Cr ADMISSION: 12/15,12011 PATE Of DISCHARGE: 1213012011

PRINCIPLE vAGNOBlt AT AOMISSIOlt Abdotrithal pain secondary to diverlitulitis With stricture.

PRINCIPLE DIAGNOSIS AT DISCHARGE: Dive,rticuntis with stricture statue post .colonic perforation requiring right herniColectomy, signrioldoctomy, and end-co lostorri y with. Ha rlirria tin's pouch and wound vacutare,assisted closure device (VAC.) placement,

ADDITIONAL k51 PLOW:4ES. EVALUATED ANDTREATIED DURING A DRAIISSION:: 1. Leukocytosis. 2. ObstruOve sleep apnea, 3. Obesity. 4. Hypertension. S,. Lett lower quadrant abscess.

CONSULTANTS: Dr.. Car ara° and Dr. Ravi 8.0tla,

PROCEDURES: , The patient bindetwent a CT of the abdomen and pelvis which V+.1 .8 obtained b. the Riveraik Clinic prior to adrrjstiOn- that showed a severely diseased sigrnoid colon with underlying diwtiodiar burden and stricture.. There was questionable evidence. for mild acute •-akirnold divatticAlfitis, More likely, there was chronic diverticulitis present. The stricture was of particular concern and appeared to be partially obstructing the colon. Patient also had an ultrasound of his abdomen and he was having right upper quadrant pain upon arrival, Right upper qua.drent showed a fatty infiltrated liver with no Cholalithlaels or oholecystitis. 8. On December le', a repeat CT of the abdomen and pelvis was obtained as patient had increased abdominal pain and distress. There was no new onset of a prorninahl amount of free air and air in the Wall of the proximal colon. There was still possible narrowing in the sigmcid oaten wIthout definite mass seen. 4.. On December le. the patient was •lakeh einergently to the operating room for management of his .perrorated views. He undement a right hemicoleotomy, sIgmcidectorny, and end• color.lony with Hartmann pouch and- Wound V.AO.placrnent by Qs. Carcamo. 5. Finally, another CT was obtained On December 27, 2011 for a persistently elevated white blood cell count. There was a suspected postoperatiVe flutd collection of 7 x 3.crri luet above. the bladder anteriorly. 5: Subsequently, op December 2e, the patient had CT-guided drainage by Dr. \Williams and drain placern via..) able to aspirate approximately 130 cc of brownish serous. liquid. 7. The patient had wound VAC changes throughout his hospitalization, last wound VAC change was on Thursday, Decernbe:r 29, 2011.

PATIENT: DEuroRcr, SALVADOR j MEDIcAL RECORD :4'k 76,31-01 vATE OF BIRTH; 1202e/11978 AGE. 8 I PATIENT* ctologoome SEE: HOSPITAL SERVICE: TEL ADMISSION DATE: 12e1W2011 P.A.VENT LOCATION: 19TI1192101

Pap 1 a.f 4 DISCHARG'S SUMMARY

Ravi TsGfia,

Botla 0003 TO! RAVI, &itla, D FPum:Modloal riegoord$ 01/01/2012 05:31:M PM PAO', 3 0I 5

.111X0-1RALTH r i, SY,SITEM DISGHARPIE ,S•Uitii1V11ARY

COUP:Sg: Mr., Del TOM is a 38,year-did gentleman whO. prdAierited tic the RiVerwalk Clinic With prior iniStory of diVartiPtilktls, presenting with;increased abdorninal pain and rbausea. A CI was obtained that showed the prasenw of diverticulitis Oh a s,trioture,. Flo lovas subsequently admitted to the 1811' ilibor for furth&theatment and evaluation, The pal ient ',Vas, seen In oonsulWon by Dr. Ciercamo on December 1153 2011, Sprgery was deterred initially arid Dr_ 'Botta of gaStrOenterOlOgy wee rhnat.tltecd for poesiblie oPlonoscopy: On the evening of De-miter 17, 2011, the patient Was given GoLYTELY for pastrointestinal prep prior to wionoixopy, He look the prep do iti It eliliout clIffictifty but began having: Worsening abdoinInal pain throttahout the. OVetliN with vomiting, A nasogastpio tii0p ),P as placard for cieoompresNon,, hut the pkidnt POintliqued to have Significant pain, ,gir app,r6xihiately 5 atit. on the tOrnIri? of December 18; 2011, patient had significant warsenihg and change in the Welty of hie pale). le Wet writ ernergently for a CT of the abdomen and pelvis,- which revealed the presence of free air consistent with perfdatiOn Or a hollow visale'?. Dr, Cart arno vies called and patient ,Ares erriatgently takers the operating *room on December 16., 2011. The patient; at that bine, be:Qom febrile end had -a significant increase in his white blood cell count,

Thepatient had a right hemicolectorny, signioldeotorny, rival end-colostomy with Hartmann'e poubh and wound 'VAC placement arid. was Subsequently kept intubeted and: tranSIOTred to the MICU aiTer his surgery, He was kept intubeted ai ha west° return to the opera ngi morn the following Tuesday. Tha, patient did 'kqell, but tied hypetensiOn, 1.horeased white blood pall count and fever, consistent with severe sense: He 'vieet cdritinued on Zorwri end Flagyl, votich had. bean initiated at the tirrie Of admisiciri. The patent had Mild eCute renal failure throughout thls time as 1,,Aisti ,with a maximum oreatInthe of 1,t54, The patent returned to the Operating morn on Wednesday, December 21h1, for washout end wound VAC change., He toleratedth i ,Oithout any significant complioations. He was exlubeted approximately 2:4 notn after true procedure and did well. He was kepi on BIPAP far a short time and was trentltioned to nasal- oaninala. He V.,r2'4a continued on 9iPAP et night througttout his hospitalization at patient likely has undiagnoSed obstructive sleep apnea.

The patient viral continued'. on broad spectrum antibiotics, He wee given nebazer bleatraente. Hi l et wOls edvanOed and he had no diffloully Volith nausea, Votaltinz or worsening pain. He was advanced to a regular diet on Monday, December 2€311', He tolerated HIS witheut any difficulty. However, wae noted to have a persistently Wevateri vy:hite bio0 cell count, so he Was sent for a. repeat GT on tineE.:Veining of Dthreniber.271b, CT revealed the aforementioned le tower quadrant WO collection; This was thought to ha possibla ebecese, so he was sent to intenientlonal radiolo,gy on December 20,, 2011 for percutaneous drainage. OTElirlage was. Perfumed as mentioned above with a Small amount of brownish fluid liernoved end drain placed, The patient vihas. continued on p.c. rta9y1 and. IV Zosyn the following day: I Ia had an traprovarrient Of hiS wflte blood cell ocpunt kern 17 down to 14,7. The 'following day. the day of disoharge, his white blood cell count continued to enprocie and was doki.i.To to He Ch.ral transitioned to p.o. Atignientln and contlnued on p.o. He is to continue these for one more week. His left 'lower quadrant drain wid. putting out very little Serosanguinepue. fluid and was dImIntin tied prior to his discharge,

DELT° RO, MEDIcAL R 3 Mal A:14 PATIENT; p DATE O DIRTHi 12&5.,11 75 AGE: 3a PhTIEKT 0004130M SEX: VIOPITALIIERVICE: TEL A Elifin5S10111 OATS 121115t2i11 PATiEKT LO CA1101.4: -P9TF-119:21M

P•rion, 2 eitt4 MOINAki05 SUMMARY

OA Si

Rotla 0004 TO:AI:VA Nei; Iledioal .nboioiric;;s 01 /017241R ilF; .tiriasie 4 0.1

NIX HPALTH AR,E, -.SYSTEM :0$011AROI .StillINTAIV

,901,111ci VAC Obandes every three The patient oontinuet to 'neve a Wound VAC in glace, rile Will hav01 days.. down at Valverde Regional Medical Center, He will foilowup with Dr. atimanio and Dr. OUnn apprOirnately two ih,!eolk% V: PHYSICAL EXAMMATI100.1! VITAL SiOPIS; Terriper&Ire Was. 07,7; respirations 20, plul.,-9e 00, blood pretswe 1'38/84, 02 setureition ',Vas PI oh room air. EN1fRAL.: He woo well neurtished, and well developed. He was fri no acute distress, 14G: NT: Unremarkable, v.! NlUCKo $uppl'e re CAP4p101/A SOLI LAR.: Reguilar fate and rhythm, Normal $1, SZ No 93 or LLINGs: Lungswere Clear to auscultation bilaterally, ABDOMEN: His abdomen is obew.. Hw hes a roidlIine incision that is closed wound VAG. The edoes, appear to be granulating, There is no surrounding erythema, Fie has e. left-sMed colostomy that is putting, out brown stool and air, His abdomen issoft,; riontender, and nordistended, LOWER t XTREMIT1ES: There was no dubbing, cyanosis, or edema. INEUIROLOdIC:

IMEDlOATiONS AT tnOillAi10,6; 1. Tylenol 500 rn g every six hours as needed for pain; Augmantin (i.75 mg litilpe daily for seven more-days, a Elentyl one tablet twim a day for oramping. 4. Lorteb 10/600 one tablet every four hours as; needed for pain. 5, riauyi 50J rota evely eight hours for seven more days, 6, ProtoniX 40 mg once delly, 7. Tram ado' 50 Mg one tablet evvry six hours as needed for pain.

IDI$CHAROE PLAN:: The patient will he dis- oharood: back to home in the dere of his family. He will be obtaining wound care f011owtip and Wound VAC, changes at Valverde Regional Medital Center, fie is to folgowup kedith trim on Monday; 4e.iniRry 2, 2012, He will return to San Antonio to see Dr. Carcarrio and Dr, Dunn in Rpprogmately trio 'v,reeks, He can resume a regular list, He is to inorease his activities per his postoperative instructions.

ISSLWS To, RE A.DiDKSSED AT FOLLOWUP1 1 Routine boatop.ratiVe care b' Dr, CprOarril.O, 'hvound VA0 cars by Dr: DUnn. 2, Fa hi s• prjrnMi-care phySlolan, paflent ra ill need falowup of likely ObstrUctiwsleep apneie. outpatient sleep study. 3; PsIlont should 'ale° ha !e further evaluation of his hypertension to ensure that it obrittnues to be, adequately contr011ed, The patient will nerd followUp labs in. two woks when ilia has completed his aniifolottos to ensure that his leukopytogis hes resolved, He has a Wight

PATIENT: — ii#12ttiko,,t0.1_,Viitio MEDICAL REiciiRI:10: 70-3i-01 aiiii./ OF aIRTHii. ; l'Aiiili$MriL3 AGE,: 3B PA-NEN-FM arrliDOICtoino ' SEX! ! nil HOSPITAL SERVICE: TEL AcimissioN DATE! i opt$Mii PATIENT LOCATION; , _j . ,, Pnge ,of 4 DiiscHAFIGE SUMMAR?

Botta 0005 TollAvi RIAU, N.D. FrOmMediCal Ruuords 01/01/2012 0::12:011 PM Pitp:e 5 Of 5

NIX HEALTH MARE SYSTE1Vi DISOHAReg SUMMARY

thrombocytosis, Out this is likely reactive and Is bone marrow recovery from his recut acute illness.

TIME SPENT ON D[DOFIAROE; Greater tha-n 30 mirnittas.

aridget K. Pie-ollitner, M.P.

EgFitmo DD: 121302011 1:39 P DT: 01/0f12012 4:05 IP CoD328581

co: Ravi Botlo., M,D, Antonio eadena, Gerardo Carbarrit, M.D. Robert N. Dunn, M.D. E3ridget K. Fiechkner,, NI, D. Fr Armando Quinones, M.D.

r.

PATIENT: DELTORO, SALVADOR rAgoicAL RECORD 4: 7.6-31-01 DATE OFIIIIRTH: 12.125d1973 AGE 3$ PAVNT ti: d01130,40330 SEX; M HoSPETA I. SERIOGE: TEL ADMISsfON DATE; 12115'2011 i PATIENT LOCATION!: 1911119210 I. .v. :••,.."•••••••,. •••;• , •

••• Page 4 of 4 DIS014A h SUMMA ir ran.

8otla 0006 To:Ravi Bona, M.D. FromINedical HOotird8 12/17/2011 OS:32:15 AM Page 4 o.f

NIX HEALTH CARE SYSTEM CONSULTATION REPORT

CONSULTANT: Ravi Both, M.D. DATE OF CONSULT; 12/17/2011

PRIMARY CARE PHYSICIAN: Dr. Sr Sornasundaravelayudha

PRIMARY REASON FOR CONSULTATION: Left loWer quadrant abdominal pain and diverticulitis.

HISTORY: Dr, 8. Somasundaravelayudha kindly asked me to evaluate Mr, DelToro, who is a 37- year-old morbidly obese Latin-American male, who was admitted on 12/15/11 for diverticulitis. History of left lower quadrant abdominal pain for three days duration without any characteristic radiation associated nausea, vomiting. No history of constipation, diarrhea, stool bleeding Or melena, History of similar episode two to three weeks ago, three months ago and three to four Months ago, He apparently seen at. the ER In Austin for a prior evaluation: No history of fever. No history of weight loss.

PAST MEDICAL HISTORY: Significant for hypertension, morbid obesity,

PAST SURGICAL HISTORY: None,

SOCIAL HISTORY: The patient Works as an officer at a correction facility. Ten pack history of smoking: No history of drinking. No history of substance abuse.

FAMILY HISTORY: Nil particular for gastrointestinal malignancies or liver diseases.

MEDICATIONS: Before coal ing to the hospital he was on Bentyl. In the hospital, he Is on 1, Lisinopril. 2. Metronidazole. 3. Zosyn, 4. Docusate sodium:

ALLERGIES: None.

REVIEW OF SYSTEMS: Denies any history of chest pain; history of abdominal pain present, history of nausea or vomiting presently, No history of constipation, diarrhea, rectal bleeding or melena.

EXAMINATION: The patient is alert, well oriented, morbidly obese Latin-American male not in any acute distress. VITAL SIGNS: Palsy 88/minute, respiratory rate 20/minute, blood pressure 183/86, afeb rif e, FENT; No jaundice.. Bilateral significant parotid enlargernenL A short thin neck is seen. HEART: 81 present, 82 present, 83 zero, no murmurs,

PATIENT - DELTORO,SALVADOp MEDAL REC0RDW: ' 70-31-01 DATEOFBIRTH: 12/26/1973 ACE: 37 PATIENTM 00104300330 SEX: M HOSPITALSRVICF: IVIED ADiVIISSION DATES 12/15/2011 PAII.ENTLOCATION: 18TH181701

--- • , - - .:.--• .: Page 1 oi 3 — Sri CONSULTATION REPORT , PA:lionar IS,657 •

Botla 0007 To:Ravi Bow,, M.D. From:Medical Records .12/17/2011 M32:27 All Pan 5. of 6

LUNGS: Clear bilaterally with good air entry, ABDOMN: Morbidly obese abdomen, Tenderness present in the right side of the abdomen in the left lower quadrant region without any guarding or rebound. Bowel sounds are good: No palpable hepatosplenorriegaly, no palpable mass lesiens in the abdomen. EXTREMITIES; Lower extremities, no pedal edema. NEUROLOGICAL: Alert; well oriented, no gross motor deficits.

LABS: White count 16.6000, hemoglobin 14,2, hernatocrit 41.3, platelet count 348,000, prothrombin time of 12.1 seconds with an INR of 1.1, CHEM panel is normal except for potasskim of 3,4 Liver function tests were normal: Amylase and lipase Were normal,

Right upper quadrant sonogram showed gallstones and fatty liVer.

CT of the abdomen and pelvis showed severe sigmoid colon divertioulosis and mild diverticulitis, sigmoid colon stricture, no abscess.

IMPRESSION: Thirty-seven-year-old morbidly obese Latin-Ameritan male, with history of hypertension, diverticulitis presented with recurrent diverticulitis, The patient has three episodes of diverticulitis in the lest four years duration, mild tenderness in the left lower quadrant and right side of the abdomen, The patient has evidence of siginoid colon stricture by imaging studiesj this Is most likely secondary to recurrent diverticulitis and fibrosis. I need to rule out Malignancy. Apparently, the patient never had a celorioscopy after previous episodes of diVertioulitis. The current episode of diverticulitis seems to be mild,

PLAN: Clear liquid diet. Continue empiric antibiotics, Colon prep today and I recommend a colonosoopy for further evaluation. The procedure, benefits, alternatives and complications Including bleeding, perforation and aspiration and respiratory difficulties from his morbid obesity were explained to the patient and his family members at the bedside, He is very skeptical about colonoscopy and biopsies at this time. He has not decided about proceeding with the colonoscopy study, I will schedule the colonoscopy in one or two days time if the patient consents for the procedure.

Thank yeti very much for allowing me to evaluate Mr, DelToro,

Ravi Botta,

•. r• f WNW': DELTOPO, SALVADOR MEDICAL RECORD II; 7.641-01 DATE OF BIRTH: 120/1V3 AGE 37 PATIENT #: 06.164300330 SEM M I-1QSPITAL SERVICE: MED ADMISSION DATE: 12115=11 PATIENT LOCATION: 1511-MS1701

Anvi

oti a 0008 To: Ravi Bot la M.D Fvoa: Med icla I R060.1043 12.1.1.7/2011 09:32:4 1 AM Page 8 of 8

R6/nhn OD: 12/17/2011 7:62 A DT: 12/17/2011 8:541A 000326885

cc: RW(l BofI8, M.D. Gerardo Ceicamo, M,D, Bridget K Fiechtner, M,D, Arfnendo Quinones, MR S. Somesundaravelayudhe, M,D,

i PN17:1ENT: DELTORD, SALVADOR . IVIEDICAL. RECORD M 76,:31.01 DAtE OF $111T14: 12/264078 AGE: 37 PATIENT #; 1 00104300330 SEX: IVI HOSPITAL SERVICE: I MED ADMISSION DATE: 12115/2011 PATIENILOCATIGN: I 18TH1070.1

Page 3 of 3 CONSULTATION REPORT . . . „ . (km-1130ila, M.D.

Botla 0009 Observation Detail Report

NIX HEALTH CARE SYSTEM DELfORO, SALVADOR 414 NAVARRO SUITS 1720 MRN: 76,31,01 Service, TEL. SAN ANTONIO, TX 782052622 Account: 104350330 DOB: 12/25/1973 Ad Whys: FlECHTNER, BRIDGET Age: 38 y Admit Oh 12/15/2911 S'ex: Ni pisoh Of: 12/3012611 LM: 15 days

ObSelvetion: CT ABDOMEN/PELVIS *CON

Result: ***Final Radiology Report ""-'

CT ADD/PEI. W/CONTRAST DATE OE EXAM: Dec 27 2011

HISTORY Severe sepsis

RESULT: TECHNIQUE: Multiple transaxiel iniages Obtained from the lung bases throtigh the level of the pubic syrilphysiS after the adinfrilatration of IV contrast,

COMPARISON:. Direct comparison is made with the previous enhanced CT scan of the abdomen and pelvis dated 12/18/201i.

FINDINGS: The lung bases again demonstrate moderathly extensive bibasilar atelectasis with small effuSions.

There is normal enhancement of the liver, spleen, pancreasi and kidneys. Small subcentimeter benign left adrenal:nodule is Identified. The gallbladder is unremarkable,

Interval postoperative changes are rioted with. cOlpstomy in the left lower quadrant. There is a small arothint of fmq4eeti:jUst about.the tip of the liver, as well as a small amount of interSpersed between bowel loops and just above the bladder (akial irnage'.262),

Images through the remainder of the pelvis are largely unremarkable, Overall the study is limited secondary to lack of oral contrast. There are a group of suspected unopacified loops of bowel in the mid pelvis

centrally (Image 232), There are adjacent suspected unopacified bowel loops with overall the study being limited secondary to a leek of oral contrast.

No subcutaneous abscess or fluid collection.

IMPRESSION: 1. Extensive postoperative changes with colostomy in the right lower quadrant, 2. Suspected postoperative fluid collection 7 x 3 cm, just above the bladder anteriorly. This likely represents postoperative fluid however Infection cannot be excluded.

Printed by: NI-IRGANES on 2/14/2012 14:10 DLTORO, SALVADOR ftplGndu ii Page 1 of 2

Botta 0018 UW111,110L payunkueut. .a Patient Receipt DigeStwe Disease Center Monday, March 24, 2014 P®t ox 17650 rriA3 n tP San Antonio, TX 78217-0650 (210) 2534423

Salvador DelToro 108 King Charles Del Rio, TX 78840

be& • suranck., atiegt Salvador DelToro(90603)/Ravi Botta MD/075056 12/17/2011 Initial inpatient consultation for a new or established patient, level #4 $322.00 1.0 $322.00 $0.00 12/18/2011 Subsequent hospital care, per day, level #1 $86.00 1,0 $86.00 $0.00 01/20/2012 Payment from UMR $0.00 $0.00 02/23/2012 Contractual Adjustment from UMR 00003756 -$156.50 $0.00 02/23/2012 Payment from UMR 00003756 -$251.50 $0.00 Balance: $0.00 $0.00 Salvador DelToro(90603)/Ravi Ganeshappa MD/075202 12/19/2011 Subsequent hospital care, per day, level #1 $86.00 1,0 $86.00 $0.00 12/20/2011 Subsequent hospital care, per day, level #1 $86.00 1.0 $86.00 $0.00 02/13/2012 Payment from UMR $0.00 $0.00 02/13/2012 Payment from UMR $0.00 $0.00 02/13/2012 Transfer from Insurance -$172.00 $172.00 02/23/2012 Contractual Adjustment from UMR 00003756 -$74.08 $0.00 02/23/2012 Payment from UMR 00003756 -$97.92 $0.00 /2012 Transfer from Insurance 00003756 $172.00 -$172.00 Balance: $0.00 $0.00 Salvador DelToro(90603)/Ravi Ganeshappa MD/075279 12/26/2011 Subsequent hospital care, per day, level #1 $86.00 1.0 $86.00 $0.00 06/13/2012 Contractual Adjustment from UMR 00003920 -$37.04 $0.00 06/13/2012 Payment from UMR 00003920 -$48.98 $0.00 Balance: $0.00 $0.00 Salvador DelToro(90603)/Ravi Ganeshappa MD/075292 12/22/2011 Subsequent hospital care, per day, level #1 $86.00 1.0 $86.00 $0.00 12/23/2011 Subsequent hospital care, per day, level #1 $86.00 1.0 $86.00 $0.00 12/25/2011 Subsequent hospital care, per day, level #1 $86.00 1.0 $86.00 $0.00 06/13/2012 Contractual Adjustment from UMR 00003920 -$111.12 $0.00 06/13/2012 Payment from UMR 00003920 -$146.88 $0.00 Balance: $0.00 $0.00

. Tot4tBildride.

Digestive Diseases Center of So. TX * 414 Navarro Street * San Antonio, TX 78205-2516 * (210) 271-1800

Botta 0020 Angie Guerrero

From: Angie Guerrero Sent: January 08, 2014 3:09 PM To: 'Richard Wagner' Cc: 'Nicole Walls' Subject: Del Toro v. Carcamo Attachments: Rule 11.pdf

Dear Mr, Wagner,

Please see attached proposed Rule 11. Please note that instead of faxing the attachment as reflected, I will place the original mail so that you may have the original authorization.

Sincerely, Angie Guerrero, Paralegal Mauze Law Finn 2632 Broadway, Suite 401S San Antonio, Texas 78215 Tel: 210.225.6262 Fax: 210.354.3909 atuerrero@rnauzelawfirrn . co m

** CONFIDENTIALITY NOTICE ** The information contained in this E-Mail is privileged and confidential and is intended only for the use of the addressee. The term "privileged and confidential" includes, without limitation, attorney-client privileged communications, attorney work product, trade secrets, and any other proprietary information. Nothing in this message is intended by the attorney of the client to constitute a waiver of the confidentiality of this message. If the reader of this message is not the intended recipient, or employee/agent of the intended recipient, you are hereby notified that any duplication or distribution of this communication is unauthorized, If you have received this message in error, please notify us immediately. MALLE LAW FIRM GEORGE W NIALIZE. II. ATTORNEY 2832 BROADWAY. SUITE 401 SOUTH SAN ANIONIC). TEAAS 7E215 TELEPHONE 210.:1562 262 ;.'ACSNAILE 210.354.3909 Mak ginmatiVipna..rtelnwiinn

January 8, 2014

VIA EMAIL .1 FAX Mr. W. Richard Wagner, Esq. Wagner Carlo, 1,1.,P 7718 Broadway, Suite 100 San Antonio, TX 78209

Re: Del Toro v. Carcamo; Cause No. 2013-C1-19135

Dear Richard:

In response to your Defendant's answer filed on December 16, 2013. enclosed herewith please find an executed authorization in accordance with Ch. 74.351 of the Tex. Civ. Prac. Rem. Code allowing the disclosure of medical records to Defendant.

With regards to your request for an abatement, I would suggest that in accordance with Ch. 74.351(s) all discovery including depositions be stayed until after Plaintiff serves his expert's report and curriculum vitae in accordance with Tex. Civ. Prac. & Rem. Code, § 74.351.

Therefore, Plaintiff's deadline to respond to Defendant's request for disclosure will be on or before April 21. 2014 (April 191h falls on a Saturday), which is 30 days from the date Plaintiff is required to serve his expert's report and curriculum vitae (March 20. 2014).

Please sign below if you agree to the above and we will file this letter as our Rule 1.1 agreement.

Of course, if you have any questions or wish to discuss this matter. then give me a call.

Sincerely.

Gedige W. Maud, 11 G W Wag enclosure

Agreed: Date: W. Richard Wagner AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION PURSUANT TO TEX. CIV. PRAC. & REM. CODE, CHAPTER 74 § 74.052

1, Salvador Del Toro, Jr. (name of patient or authorized representative), hereby authorize Gerardo E. Carcamo, M.D. (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.

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 Salvador Del Toro, Jr. (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:

Nix Hospital, 414 Navarro, San Antonio, TX 78205

Gerardo E. Carcamo, M.D., 414 Navarro, Suite 830, San Antonio, TX 78205

This authorization shall extend to any additional physicians or health care providers that may in the future evaluate, examine, or treat Salvador Del Toro, Jr. (patient) for injuries alleged in connection with the claim made the basis of the attached Notice of Health Care Claim; and

The health information in the custody of the following physicians or health care providers who have examined, evaluated, or treated Salvador Del Toro, Jr. (patient) during a period commencing five years prior to the incident made the basis of the accompanying Notice of Health Care Claim:

Riverwalk Clinic, 414 Navarro, Suite 809, San Antonio, TX 78205

Val Verde Regional Medical Center, 801 Bedell Avenue, Del Rio, TX 78840

Antonio Cadena, M.D., 2201 North Bedell, Suite A, Del Rio, TX 78840 C. Excluded Health Information—the following constitutes a list of physicians or health care providers possessing health care information concerning Salvador Del Toro, Jr. (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 Salvador Del Toro, Jr. (patient) arising out of the claim made the basis of the accompanying Notice of Health Care Claim: NONE.

D. The persons or class of persons to whom the health information of Salvador Del Toro, Jr. (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 Salvador Del Toro, Jr. (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 Salvador Del Toro, Jr. (patient); 3. Any consulting or testifying experts employed by or on behalf of Gerardo E. Carcamo, M.D. (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 Gerardo E. Carcamo, M.D. (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; and 5. Any trier of the law or facts relating to any suit filed seeking damages arising out of the medical care or treatment of Salvador Del Toro, Jr. (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:

Date: Salvador Tdro, Jr.

Patient's Name: Salvador Del Toro, Jr.

Patient's D.O.B.: 12.25.1973

Patient's SSN: 451.77.9676 Angie Guerrero

From: Angie Guerrero Sent: January 24, 2014 2:09 PM To: 'Lynn Laursen' Cc: 'Richard Wagner` Subject: Del Toro v. Carcamo Attachments: Ltr enc Ch, 74 auth,pdf

Lynn,

Attached is a copy of the Ch. 74 authorization, We will put the original in the mail today.

Sincerely, Angie Guerrero, Paralegal Matta'. Law Firm 2632 Broadway, Suite 401S San Antonio, Texas 78215 Tel: 210,225.6262 Fax: 210.354.3909 aguerreroAmauzelawfirm.com

** CONFIDENTIALITY NOTICE ** The information contained in this E-Mail is privileged and confidential and is intended only for the use of the. addressee. The term "privileged and confidential" includes, without limitation, attorney-client privileged communications, attorney work product, trade secrets, and any other proprietary information, Nothing in this message is intended by the attorney of the client to constitute a waiver of the confidentiality of this message. If the reader of this message is not the intended recipient, or employee/agent of the intended recipient, you are hereby notified that any duplication or distribution of this communication is unauthorized. If you have received this message in error, please notify us immediately. MAUZE LAW FIRM GEORGE W. MAuZt II. ATTORNEY 2632 OROADwAY. SUITE .101 SOUTH SAN ANTONIO. TEXAS 7621S TELEPHONE 210 225.3.362 FACSIMILE 210 354 39O EMAIL: gmatizoOmauzolawfilm cora

January 23, 2014

VIA EMAIL d REGULAR MAIL Mr. W. Richard Wagner, Esq. Wagner Carlo, LIP 7718 Broadway, Suite 100 San Antonio, TX 78209

Re: Del Toro v. zircatno; Cause No. 2013-C1-19135

Enclosed herewith please find an updated executed authorization in accordance with Ch. 74 with regard to the above-referenced matter.

If you have any questions or wish to discuss this matter, then give me a call.

Sincerely,

George W. Maize, 1.1 (3WM/ag enclosure AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION PURSUANT TO TEX. CIV. PRAC. & REM. CODE, CHAPTER 74 § 74.052

I, Salvador Del Toro, Jr. (name of patient or authorized representative), hereby authorize Gerardo E. Carcarno, M.D. (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 Salvador Del Toro, Jr. (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:

Nix Hospital, 414 Navarro, San Antonio, TX 78205 Gerardo E. Carcamo, M.D., 414 Navarro, Suite 830, San Antonio, TX 78205 Metropolitan Methodist, 1310 McCullough Avenue, San Antonio, TX 78212 Ravi Botla, M.D,, FACG, Digestive Diseases Center of South Texas, PILO., 621 Camden Street, Suite #202, San Antonio, Texas 78215

This authorization shall extend to any additional physicians or health care providers that may in the future evaluate, examine, or treat Salvador Del Toro, Jr. (patient) for injuries alleged in connection with the claim made the basis of the attached Notice of Health Care Claim; and

2. The health information in the custody of the following physicians or health care providers who have examined, evaluated, or treated Salvador Del Toro, Jr. (patient) during a period commencing five years prior to the incident made the basis of the accompanying Notice of Health Care Claim:

Riverwalk Clinic, 414 Navarro, Suite 809, San Antonio, TX 78205 Val Verde Regional Medical Center, 801 Bedell Avenue, Del Rio, TX 78840 Antonio Cadena, M,D,, 2201 North Bedell, Suite A, Del Rio, TX 78840 C. Excluded Health Information—the following constitutes a list of physicians or health care providers possessing health care information concerning Salvador Del Toro, Jr. (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 Salvador Del Toro, Jr. (patient) arising out of the claim made the basis of the accompanying Notice of Health Care Claim: NONE.

D. The persons or class of persons to whom the health information of Salvador Del Toro, Jr. (patient) will be disclosed or who will make use of said information are:

Any and all physicians or health care providers providing care or treatment to Salvador Del Toro, Jr. (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 Salvador Del Toro, Jr. (patient); 3. Any consulting or testifying experts employed by or on behalf of Gerardo E. Carcamo, M.D. (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 Gerardo E. Carcamo, M.D. (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; and 5. Any trier of the law or facts relating to any suit filed seeking damages arising out of the medical care or treatment of Salvador Del Toro, Jr. (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:

Date: SalVador el Toro, Jr.

Patient's Name: Salvador Del Tom, Jr. Patient's D.O.B.: 12.25.1973 Patient's SSN: 451.77.9676 2011 January April 11.110119211111.111 October SMTWTFS SMTWTFS S M T W T F S smTvyT F S 1 2 1;2 11 213 4151617 8 31 4 51 61 7 8 9 31 4 j 51 61 7 819 21 31 4 5 6 7173-1 1 9 110 11112113114 15 10111 12113 14115 16 10111112 13114 15116 9 1 10111 12 13114 15' 1 16117 18119(20(21 22 171 18 23 17118119 20121 22123 16 17 18 19,20;21 221 23124125126 (27 28 29 24 25126 27128 29 30 24125126127128 29130 231 24 25 26 27128 29, 1301 31 31 30131 February May August November S MTWTFS SMTWTFS S TWT F S MTWTF 1 1 21 3 4 1 5 1:2 5 6 7 1 2 3,415 6 1"2 314 51 1 6 1 7 8 1 9 110111 12 8 9 10 11 12 13 14 71 8 10111 12 13 6 71 8 9 10111 12 :13114.15116 .17118119 15'16 17 18 19 20.121_ 14115 16 7 8 19 20 13 14,15 17;18 19 120121122123 24125126 22123124 25,26 27 28 21122 23 24,25126 27 20 21)22 24I25 261 127128 29130131 28(29 30 31 27 28129 30

March June September December S M T W T FS S M T W T F S S MTW TF 1-3. . S M T W. T. s 31, 41 5 1 2113 4 11 2 1 21 . 61 71 81 9 (10 111 12 5 6 71 8 9 10 11 41 5 ' 61 7 ! 81 9 10 4 5 6171819{[I 13 14 15 17,18 19 12 13 1455 16 17 18 11'12 13 14115116117 11 12 13 15'16(17( 17 20' 21 22' 23 .24 25126 19 20 21 1 22 23 24 25 18 19 20 21 22 23124 18 19 20 21 221 23 24, 27128 29130131 26 27 28(29 30 25126127 28129 30 25,26 27 28129 30,31;

PLAINTIFF'S EXHIBIT 11111111111=51111111111111 April -July October S . _M T W T F S. S MTVVT_FS S MTWTFS S M ,LIN,TL: 112 1 314 51617 112 31 41 5 6 7 1 21 3 4 5 617 31 4 ! 51 61 8 1 9 110111 12113114 819 1011111203 14 8 9 110111 12 13 14 7'; 81 9 110111112113 0 221 15116117118119 15116 17'1811920121 15 16117'18 19 20 21 14:15116117118 19 20 22 23124125126 27 28 22123 24 25126 27128 22 23124 25 26 27128 211221 23124125 26127 ; 29;30131 29130 29 30131 28129130131

February August November S M T W .T F S m TWT F S S MTWTFS S MTWTFS fT 314 11 3 41 5 11 21 31.4 1 71 8 1 9 10 11 6 7 8 9 10 11112 51 6 71 81 9 10111 415 6 1 7 819110 1213114'15116117)18 '13114 15116 17 18 19 12113 14115116(17118 11112 13114 15 16 17 19120121 22 23124125 20121 2223 24!25126 19120 21 22123 24_125 18119120121 22123124 26127128129 27128 29130 31 26127 28129130 31 25126127128 29130

March June September December S MTWTFS S M T W T F S S MTWTFS S MTWTFS 11 2 3 1 2 1 1 1 5 I 6 1 7 FET1 9 10 314 5 6 718 9 2131415 6 718 2 3 415 61718 11 12 13 14 15 16 17 10111 12 13 14115 16 9110 11'12 13 1415 9 10 11112 13114115 18,19 20 2 22 23 24 1711809 20121 22123 16 17118!19 20 21 22 16 17118119 20121122 25126 2712829 30131 24125126 27!28 29130 23 241-15126 27 28 29 23 24125126 27128129 30 30 31 2013 January April July October S MT_WTFS SMTVVTFS S fyl_T W. T...F S. S M T W T F ,S 11213 415 11 21 31 4 5 6 11 2 31 41 51 6 4 51 6 7 1 8 1 9 110 11112 7 81 9 10111112 13 7 8 9i110 11112113 617 11 121 13 14115 16117 18119 14 15116 17118119 20 14 15 16117 18'19!20 13 14 15 16 17118 19 20 21122 23124 25126 21 22123 24125126 27 21 22 23124 2526627 20121 22 23 24 25.26 27 281291 30131 28 29130 28 29 30131 11g 29130 31

Februa May August November S MTWT F S, SMTWTFS S M. T F S S MTW T F. S 1 2 11 1 3 4 1 2 1 21 3 1 4 ; 5 1 6 , 71 8 j 9 5 617 8 9 10 11 415 61 71 81 9 314 5167 8 91 10i 11112j 13114 15116 12 13114 15 16 17118 11112 13 14 15116 10.11 12'13,14 15116! 171 18(19120121122123 19 20121. 22 23124125 18 19 20 21 22;23 24 241251261 27128 26 27128129 30131 25;26 27128 29130 31 24,25 26127128 291301

March June September December S M T W I F S SMTWT_F S S M W F S 1 2 1 2 3;4 516 7 1_...2 3 4 1 5 6 7 31415;617 8 9 213 4 5; 6 71 8 8 Trid.11 12113 14 8 9 10 11112 13114' 10 1 11 12 13 14 15 16 9 10 11 12113.14115 15 16 17 18 19 20 21 15116 X18 19 20121 4 1 7 1 18 19 20 , 21 22 23 16 17 18 191 201271-11 22 23 24125 26127128 22123 25 26 27;281 24125126 27128 29 30 24 25 26 2728129 29 30 29130 31 31 30 2014 January April July October S M T W T F S S MTWTFS S M T yv T F S SMTWT 21 3 4 11 21 3 4 5 11 2 L.3 4 5 11 2 3 4 9110 11 61 71 81 9 110 11 12 61 7 ' 81 9110i11 12 51 61 7 ,1 8 ; 9 10;11 12 131141151 16117118 1314115 16 17118 12113 14115 16,17;18; 19 23124125 20121 22 23;24 25 20 21122 23 24125 26 19120121122 23124,25 ] 126127 28 29 30.31 2712829 30 27 28129 30 31 26,27128129 30131

May August November S MTWTFS S MTWTFS S MTWT F s SMTWTFS 1 1=22 3 11 2 _1 1 2 1 3 41 5 61 71 8 4 5 617 8 9 j10 314 51617 8 . 9 21 3 1 4 5 6 7 1 8 9 (10 11 12 13114'15 11 12 13 14'15 16{17 1011 12113114115 16 9 10111112 13114 15 1 16117 18119 20 21122 18(19120`21 22 23i1 24 17118 19 20 21122 23 16117(18 19 20121 22 23124125 26 27128 25121127 28129 30 31 24 25 26 27 28129 30 23124125)26 27128 29 31 30 March June September December S MTWTFS S MTWTFS S MTWTF S . s M T w.T ..F S 1 1 2 3'4 5 6 7 11 2 3 56 [ 2 1 41 31 5 61 2 3141 5 6 7FF 81 9 10 11 12 13 14 71 8' 9110 12113 71 8 1 9110111112 131 9 10i11(12 13 14115 15116 17118)19 20 21 14115 16117 18119 1411511657118119 201 16 17118(19 20 211 22 22123 25126 27 28 21'22 23124125126 27 21122 23124125126 27 ) 231 24 s 251 26 27 28129 29 30 28 29130 • 28129130131 ;30131 APPENDIX TAB “H” FILED 9/11/2014 5:34:00 PM Donna Kay McKinney Bexar County District Clerk Accepted By: Monica Hernandez

GERARDO E. CARCAMO, M.D. AND RAVI BOTLA, M.D. BEXAR COUNTY, TEXAS

REPLY TO PLAINTIFF'S OPPOSITION TO RAVI BOTLA, M.D.'S MOTION FOR SUMMARY JUDGMENT

Defendant, Ravi Botla, M.D. ("Dr. Botla"), respectfully files this his Reply to

Plaintiff's Opposition to his Motion for Summary Judgment, which was based on the

ground that Plaintiff's claims against him are barred by the applicable two year statute of

limitations. In further support of his motion and in reply to Plaintiff's Opposition, Dr. Botla

respectfully shows the Court the following:

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff has sued Dr. Botla alleging claims of negligence arising out of medical

care and treatment Dr. Botla provided to Plaintiff on December 17, 2011. Specifically, as

stated in Plaintiff's Third Amended Original Petition, the allegations arise out of Dr. Botla's

recommendation for colonoscopy and order for GoLYTELY for gastrointestinal prep on

the theory that the colon prep contributed to the bowel perforation. These events occurred

on December 17, 2011.

Plaintiff filed his Original Petition on November 20, 2013, naming only co-

defendant Dr. Carcamo as a defendant. Prior to filing suit against Dr. Carcamo, on June

11, 2013, Plaintiff served Dr. Carcamo with a notice letter as required by Chapter 74. However, he failed to include with that notice letter a compliant authorization as required

by Chapter 74. As a result, Dr. Carcamo moved to abate the proceedings for 60 days as

allowed under Chapter 74 when Plaintiff does not comply with the notice and authorization

requirements. Since suit was filed against Dr. Carcamo within the two year statute of

limitations, abatement was his only recourse. In response to Dr. Carcamo's plea in

abatement, on January 8, 2014, Plaintiff sent Dr. Carcamo's counsel a revised

authorization "in accordance with Ch. 74.351 of the Tex. Civ. Prac. & Rem. Code allowing

the disclosure of medical records to Defendant." A few weeks later, Plaintiff provided Dr.

Carcamo with another revised authorization listing two additional providers.

It was not until March 3, 2013, 2 years and 76 days after Dr. Botla provided the

care at issue, that Plaintiff amended his Petition to include Dr. Botla as a defendant.

However, Plaintiff's claims against Dr. Botla are barred by the 2 year statute of limitations

in Chapter 74. Plaintiff does not get the benefit of the 75 day tolling period found in

Chapter 74 since he failed to serve a statutory sufficient authorization on any health care

provider within two years of the at-issue care and treatment provided by Dr. Botla. Even

had Plaintiff timely served one of the health care providers with a sufficient authorization,

which would have tolled the statute by 75 days, since the lawsuit was filed 2 years and

76 days after the care at issue was provided, Plaintiff's lawsuit against Dr. Botla was still

filed after the expiration of the absolute 2 year statute of limitations.

In light of the above, on August 14, 2014, Dr. Botla filed his Traditional Motion for

Summary Judgment. Plaintiff filed his response to that motion on September 4, 2014.

Although Plaintiff has offered this Court additional summary judgment evidence to

consider, that evidence does not change the fact that Plaintiff's lawsuit was filed after the

2 passing of the statute of limitations. If anything, the evidence provided by Plaintiff further

solidifies that Plaintiff's pre-suit authorization was ineffective to toll the statute of

In addition to the summary judgment evidence offered in Dr. Botla's Motion for

Summary Judgment, Dr. Botla additionally relies on the summary judgment evidence

offered by Plaintiff and hereby incorporates by reference Exhibits 1-7 of Plaintiff's

Opposition to Defendant Ravi Botla, M.D.'s Motion for Summary Judgment.

ARGUMENTS & AUTHORITIES

Plaintiff's amended pleadings and summary judgment evidence notwithstanding,

since Plaintiff did not file his suit against Dr. Botla until 2 years and 76 days after the care

at issue was provided, his lawsuit against Dr. Botla was filed 76 days late and is time

barred. Plaintiffs cause of action accrued on December 17, 2011, such that the two year

statute of limitations expired on December 17, 2013; he was not entitled to the 75 day

tolling provision found in Chapter 74 because he did not provide any healthcare provider

with a compliant authorization for release of medical records prior to the passing of the

two-year statute. Even had Plaintiff complied with the requirements of Chapter 74 and

provided a statutory sufficient authorization within the limitations period, so as to toll the

statute for 75 days, Plaintiff's lawsuit would have still been untimely filed by 1 day.

3 A. The Accrual Date was December 17, 2011 despite Plaintiff's amended pleadings.

Chapter 74 measures the limitations period for medical negligence claims 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. TEX. Civ. PRAC. &

REM. CODE §74.251(a); Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001)(applying almost

identical language of predecessor statute). However, a plaintiff may not choose the most

favorable date that falls within those three categories. Id. Rather, if the date the alleged

tort occurred is ascertainable, limitations must begin on that date without further inquiry.

Id. If a defendant committed an alleged tort on an ascertainable date, whether plaintiff

can establish a course of treatment is immaterial because limitations begin to run on the

ascertainable date, regardless of the dates of the subsequent treatment. Id.

Plaintiff's allegations against Dr. Botla relate to his recommendation for

colonoscopy and his order for GoLYTELY, both of which undeniably occurred on

December 17, 2011. See Plaintiff's Third Amended Original Petition. Although Plaintiff

has added an allegation for "failing to timely diagnose and treat the colon perforation," Dr.

Botla did not provide any medical care to the patient after 6:50 p.m. on December 17,

2011 when he gave a telephone order. See Exhibit 2 to Plaintiff's Opposition. Dr. Botla

did not see, treat, or even receive any information about the patient again until after the

perforation had already been diagnosed; there are no allegations of negligence related to

any of Dr. Botla's treatment of the patient after the diagnosis had been made. Therefore,

no actionable negligence occurred after December 17, 2011 and that is the date of

accrual. See Gormley v. Stover, 907 S.W.2d 448, 449-450 (Tex. 1995). Since Plaintiff's

lawsuit was filed more than 2 years after that date it is barred by the statute of limitations.

4 B. Statute of Limitation was not tolled because the authorization that was provided within limitations was defective.

Since Plaintiff did not serve any health care provider with a statutorily sufficient

authorization within the limitations period, Plaintiff is unable to take advantage of the tolling

provision in Chapter 74. Contrary to Plaintiff's statement in his Opposition response, the 75

day tolling period is not absolute when a notice letter is provided during the limitations period.

Carreras v. Marroquin, 339 S.W.3d 68, 74 (Tex. 2011). If that notice letter is not

accompanied by a sufficient authorization form, the 75 day tolling period is inapplicable. Id.

Put simply, a defective notice, even if served "well within the 2 year statute of limitations" is

still defective and does not operate to toll the statute of limitations. Mitchell v. Methodist

Hospital, 376 S.W.3d 833, 838 (Tex. App.—Houston [1st Dist.] 2012, pet. denied);

Nicholson v. Shinn, No. 01-07-00973-CV, 2009 WL 3152111, at *4 (Tex. App.–Houston [1st

Dist.] Oct. 1, 2009, no pet.).

In Carreras, a case dealing with a notice letter that contained no authorization, the

Texas Supreme Court held that the provision of an authorization form was a mandatory

condition precedent. 339 S.W.3d at 72. Following Carreras, the First Court of Appeals

considered the question at issue here: whether a timely filed notice letter containing a

defective authorization operates to toll the statute of limitations. Mitchell, 376 S.W.3d at 838.

In Mitchell, as is Plaintiff's authorization in this case, the authorization was defective in two

ways: (1) it did not disclose the plaintiff's treating physicians for the previous five years; and

(2) it did no authorize the defendant to obtain and disclose protected health information. Id.

at 838. The plaintiffs argument was essentially the same as that advanced by Plaintiff here:

that the authorization provided with the notice letter "substantially complied" with the notice

requirement and was therefore sufficient to toll the limitations period. Id. at 834. However,

5 the First Court of Appeals rejected that argument finding that the deficiencies basically

rendered the pre-suit authorization of no use, "because such an omission discouraged

defendants from undertaking an investigation to evaluate [the] claim." Id. at 838. The court

explained that the defective authorization was meaningless because the purpose of the

requirement for disclosure of past physicians is to allow the potential defendant to evaluate

and possibly settle claims pre-suit. Id. Without information regarding the plaintiff's relevant

past medical care, it is impossible for a defendant to "evaluate the strength of the claimant's

claim with the legislative goal of encouraging settlement." Id.

As stated in Dr. Botla's Motion, he was never provided with any pre-suit authorization,

which itself undermines the purpose of the tolling period: he was never given a pre-suit

opportunity to investigate the claims or negotiate a potential settlement. Frankly, application

of the 75 day tolling period to Dr. Botla, even had an effective authorization been provided

to Dr. Carcamo, would have unjustifiably extended the limitations period against Dr. Botla:

if he was given no opportunity to investigate the claims or consider resolving the case prior

to litigation, there is no justification to giving Plaintiff 75 additional days to file a lawsuit.

Therefore, since he did even receive a pre-suit notice at all, the authorization requirement

should be strictly construed and only applied if the plaintiff was fully compliant with the

statute.

The only authorization that was provided to any defendant in this matter prior to the

expiration of the two-year statute of limitations was the authorization that accompanied

Plaintiffs pre-suit notice letter to co-defendant, Dr. Carcamo. Thus, although subsequent

authorizations were provided after the expiration of the statute, which at least to some extent

resolve the deficiencies in the authorization, it is only that first authorization, the "June, 2013

6 authorization" found at Exhibit "E" to Defendant's Motion for Summary Judgment, that can

be considered. An authorization provided after the expiration of the statute does plaintiff no

good from a tolling perspective because there is no limitations period left to toll.

That June, 2013 authorization was insufficient to toll the statute because it (1) did not

allow any physician to obtain the medical records stated therein and (2) failed to include

several of Plaintiff's treators from the preceding five years. As further evidence that the

June, 2013 authorization was insufficient in failing to allow any defendant to obtain the

Plaintiff's medical records, in addition to the fact that Dr. Carcamo moved to abate the

proceedings for that very reason, in response to that plea in abatement, on January 8, 2014,

Plaintiff sent Dr. Carcamo's counsel a new authorization form. This authorization revised

the first paragraph to allow Dr. Carcamo to obtain the records of the providers listed,

whereas, previously, the June, 2013 authorization only allowed him to produce records to

Plaintiffs counsel. See Exhibit "5" to Plaintiff's Opposition. Apparently acknowledging the

deficiency in the first authorization, the letter forwarding the revised authorization indicated

that this new authorization "allow[ed] the disclosure of medical records to Defendant."

Likewise, Plaintiff later sent another revised authorization listing additional providers, again

providing further evidence that the June, 2013 authorization was insufficient. See Exhibit

"6" to Plaintiff's Opposition. However, even that authorization was still defective in that it

failed to include several of Plaintiff's medical providers in the preceding five years, including

providers that treated Plaintiff for the same symptoms as those complained of during the

healthcare at issue. Therefore, Plaintiffs noncompliance with the mandatory provisions of

Chapter 74 did not satisfy the purpose of the statute: no physician was able to obtain

Plaintiffs relevant medical records in order to investigate Plaintiffs claims.

7 The authorization was defective and did not trigger the 75 day tolling period. Thus,

Plaintiffs lawsuit against Dr. Botla is barred by the statute of limitations since it was filed

more than 2 years after the date of accrual, September 17, 2011.

C. Two Year Statute of Limitations is Absolute despite any rule of procedure that might toll, postpone, or interrupt the passing of the limitations period.

Even if the 75 day tolling period applied, Plaintiff's case would still be time-barred

since he filed 2 years and 76 days after Dr. Botla treated Plaintiff (the 2 years and 75 days

fell on Sunday, March 2, 2014). Not only does Section 74.251 provide that the two year

statute of limitations applies notwithstanding any other law, but Section 74.002 further

provides that in the event that any rule of procedure conflicts with the two year statute of

limitations, the absolute two year statute of limitations prevails. TEX. Civ. PRAC. & REM.

CODE §§ 74.251(a), 74.002(a). Thus, read together, it is clear that two years means two

years and no more.

Significantly, the cases Plaintiff cites for the proposition that the "notwithstanding any

other law" language does not apply to rules that are procedural in nature were decided

before the enactment of Section 74.002. That section specifically provides that, in the event

of a conflict, Chapter 74 prevails over any other law, "including a rule of procedure." TEX.

Civ. PRAC. & REM. CODE § 74.002(a). Section 74.251 imposes an absolute 2 year statute of

limitations. See Diaz v. Westphal, 941 S.W.2d 96, 99 (Tex. 1997). Thus, any rule of

procedure, i.e., Rule 4, that would alter, interrupt, toll or postpone the running of the statute

at exactly two years is in direct conflict with Section 74.251 and Section 74.251 therefore

controls. TEX. Civ. PRAC. & REM. CODE § 74.002(a). Unlike Section 74.351, which does not

address how to compute the 120 day time period for filing expert reports, Section 74.251

provides very clear instructions on how to compute the two year statute of limitations:

8 notwithstanding any other law, two years is exactly two years. See Molinet v. Kimbrell, 356

S.W.3d 407 (Tex. 2011)(Section 74.251 provides an absolute two-year statute of

limitations); Carpinteyro v. Gomez, 403 S.W.3d 508 (Tex. App—San Antonio 2013)(Rule 4

is not in conflict with Section 74.351).

Therefore, even if a sufficient authorization had been served, the limitations period

expired on March 2, 2014, 1 day before Plaintiff first filed suit against Dr. Botla. Plaintiff's

cause of action against Dr. Botla is therefore time-barred and should be dismissed with

prejudice.

IV. CONCLUSION & PRAYER

WHEREFORE, PREMISES CONSIDERED, Dr. Botla respectfully prays that this

Court grant his Motion for Summary Judgment as to all claims and causes of action

against him brought by Plaintiff, enter summary judgment that Plaintiff take nothing by

this suit, and sever Plaintiff's cause(s) of action against Dr. Botla so that the judgment will

be final. Dr. Botla further prays for such other and further relief to which he may be justly

/s/ Nicki K. Elqie BRETT B. ROWE State Bar No. 17331750 NICKI K. ELGIE State Bar No. 24069670 EVANS, ROWE & HOLBROOK, P.C. 10101 Reunion Place, Suite 900 San Antonio, Texas 78216 Direct Line: (210) 384-3271 Facsimile: (210) 340-6664 Email: bbroweevans-rowe.com Email: nelgie@evans-rowe.com

9 ATTORNEYS FOR DEFENDANT, RAVI BOTLA, M.D.

I hereby certify that a true and correct copy of the foregoing motion has been sent, in accordance with the Texas Rules of Civil Procedure on this 11th day of September, 2014:

George W. Mauze, II Mauze Law Firm 2632 Broadway, Suite 401S San Antonio, Texas 78215 Telecopier: (210) 354-3909 Email: gmauzemauzelawfirm.com

W. Richard Wagner Wagner Cario, LLP 7718 Broadway San Antonio, Texas 78209 Telecopier: (210) 979-9141 Email: rwagnerwagnercario.com

/s/ Nicki K. Elgie BRETT B. ROWE / NICKI K. ELGIE

10 APPENDIX TAB “I” Sep. 29, 2014 4:23PM No, 3551

\I(

MAUZE LAW FIRM oc,u(3,„,„,..k II, ArrOrINO 2882 OROAOWAY, ulYe 401 SOUTH MN ANTONIO, TYXAS 70215 • tELEPHONR 210,225,8262 NAcSIMrLE 210.354,2909 EMAIL: gmao4egrnauzoia1f,rrn.0o11

September 29, 2014 CO CaP 11/ ID (J) Honorable Peter Sakai, rri "Ty < -4 Judge, 225Ih District Court r'l IN) 70 y -- Bexar County Courthouse eL) f ,) -r) (7) 100 Dolorosa c - ( •

San Antonio, Texas 78205 Via: Hand-Delivered

Re: Cause No. 2013-CI-19135 (—) Del Toro v Carcamo et al;

Dear Judge Sakai:

During our hearing upon Defendant Ravi Botla's motion for summary Judgment on September 16, 2014, you invited us to file any additional evidence and/or case law for your consideration. This is a further response to three arguments of opposing counsel.

Chapter 74 Notice Substantial Compliance As reflected in the case law submitted with Plaintiff's Opposition, the cases in which the Chapter 74 notice was held to be insufficient as a matter of law (Carreras v, Marroquin, 339 8,W,3d 68, 73-74 (Tex. 2013); Mitchell v. Methodist Hospital, 376 S.W,3d 833, 839 (Tex. App. Hou ston [12t Dist.] 2012, pet. denied); Nicholson v. Shinn, 2009 WL 3152111 (Tex. App. — Houston [151 Dist.] October 1, 2009, no pet.); Cantu v, Mission Regional Medical Center, 2014 WL 1879292 (Tex. App. - Corpus Christi May 8, 2014, no pet.)], the plaintiff failed to provide any Chapter 74 authorization or did not provide a Chapter 74 authorization which specified that the health care provider who received the notice was authorized to obtain Plaintiffs' health care records. In the cases in which the Court held, as a matter of law, that the Chapter 74 notice substantially complied with the statute [Rabatin v. Kidd, 281 S.VV,3d 558, 562 (Tex. App. — El Paso 2008, no pet.); Mock v. Presbyterian Hospital of Plano, 379 S.W.3d 391, 395 (Tex. App. — Dallas 2012, pet. denied)), the plaintiff provided a Chapter 74 notice, but it had some errors. Plaintiff provided a Chapter 74 authorization and it specified that Dr. Carcamo was authorized to obtain Plaintiff's health care records. Although Defendant Botta argued that Dr, Carcamo was unable to obtain Plaintiffs health care records with the authorization provided, there is no evidence. presented that Dr. Carcamo (the physician who received the notice) was unable to obtain Plaintiff's health care records. In fact, as reflected in the attached Exhibit "A", Dr. Carcamo requested and received Plaintiff's health care records from Nix Hospital with the very authorization (dated 6/7/13) Defendant 6otla argues was insufficient as a matter of law because it did not enable Dr. Carcamo to obtain records. Sep 29, 2014 4:23PM No, 3551 P. 3

Honorable Peter Sakai September 29, 2014 Page two

Defendant Botla's Last Day of Treatment of Plaintiff Defendant Botla argued that the only day he participated in Plaintiffs treatment was December 17, 2011. As reflected in Exhibit 2 — page 7 and Exhibit 4 — pages 1, 2, & 9 to Plaintiffs Opposition, Defendant Botla participated in Plaintiffs treatment on December 18, 2011 in addition to several other days thereafter. Defendant Botla is alleged to have been negligent in his failure to diagnose and appropriately treat the colon obstruction and the subsequent perforation of the colon on December 17, 2014 and December 18, 2014. Thus, the statute of limitations expired Monday, March 3, 2014, not Sunday, March 2, 2014.

Electronic Filing On A Saturday or Sunday Defendant Botla argued that a petition can be electronically filed on a Saturday or Sunday, and thus, the statute of limitations is not extended to the following Monday. As stated in Plaintiff's Opposition, such is contrary to Rule 4 T.R.C.P. and Section 16.072, Tex. Civ. Prac. & Rem. Code. Furthermore, in response to the Court's inquiry, as to when a pleading is considered "filed" when electronically submitted on a Saturday or Sunday, attached hereto marked as Exhibit "B" is the Pro Doc informational page which reflects that pleadings filed on a Saturday or Sunday are considered filed on the following Monday.

Enclosed herewith is an Order Granting Leave of Court to supplement Plaintiff's Opposition and another Order Denying Defendant kotla's motion for summary. judgment.

Thank you for your consideration of this information.

Gedrge W. Ma

GWM/ag Xc: Mr, Brett Rowe, Esquire w/enclosures Sep. 29. 2014 4:24PM No. 3551 r 4

Art9ie Guerrero

From: Lynn Laursen <11aursen@vvagnercario.com > Sent: September 29, 2014 9:21 AM To: Angie Guerrero Subject: FW: Salvador Del Toro, Jr. N New Request Attachments: Medical Auth (6-7-13).pdf

Importance: High

Please see We email below.

Lyni) Lotersim, B.S.N., R.N. Nu 'se L.60,-.41 Consonant

From; Lynn Laursen Sent: Tuesday, January 07, 2014 11:49 AM To: Monica Galvan (mgalVonPrepubljc-services.pom) Cc; Casey Sikora Bove (cbove(a, republic-services,corn) Subject: Salvador Del Toro, Jr. - New Request Importance: High

Dear Monica:

We would like to retain your services to obtain records in a new lawsuit assigned to Richard Wagner. The style of the case is: Cause # 2013-CI-19135; Salvador Del Toro, Jr. v. Gerardo E. Carom°, M.O.; filed in the 131x` District Court, Bexar County, TX,

Plaintiff is represented by George W. Mauze, II. Plaintiff's DOB is 12/25/1973 & his SSIt is XXX.XX-9676. We have a very limited authorization which I have attached, although I doubt it will he accepted by any healthcare provider, Please request records from the following via DWQ in admissible form:

Nix Hospital medical Nix Hospital — radiology Dr. James Lackey medical & radiology Riverwalk Clinic— medical & radiology Val Verde Regional Medical Center--medical Val Verde Regional Medical Center--radiology Antonio Cadena, M.D. (Del Rio) — medical & radiology Digestive Disease Centers of South TX, including Ravi Botla, M.D.medical & radiology

if any of the clinics listed above require a separate request for radiology, please let me know. I may hold off until we review the medical records to avoid incurring unnecessary costs, Additionally, we will want a list of available radiology studies to limit the films obtained to those pertinent to this case.

The insurance company is ProAssurance, the adjustor is Kayci Mechler and the claim No. is 187454.

Please let me know if you have any questions and confirm receipt of this new request. Sep. 29, 2014 4:24PM No, 3551 P, 5

Sincerely, Lynn L.aursen, B.S.N., R,N. Nurse Legal Consultant

7718 Broadway, Suite 100 Son Antonio, TX 78209 rieuaenAwagnercarlo.com (o): 216,919,7'555 (m): 210.278.9847 (0: 210.979.9147

CONFIOENTIALITY NOTICE

This is a transmission from Wagner Carlo, ThiS transmission is intended only for the personal end confidential use by addMssee(s) named above. This message rosy contain information which IS COnlidentiat and/or prOprIetery, It'you are no! the addressee or intended recipient of this message, you are hereby nailed that you have recewod this transmission in error and that any review, dissemination, disclosure, copying or diskibution or use of the contents of this message is strictly prohibited, if you have received this transrhission in error, please delete the original message and notify the Wagner Cane, L.L,P. Office Administrator immediately el 1-210-979-7555. Intorno( end e-mail communications are Wagner Cade, 1_,L.P, property and Wagner Carlo, L.L.P. reserves the night to review any message that is a product of its rotwork. Sep, 29, 2014 4:24PM No, 3551 P, 6

AUTHORIZATION FOI3MLc011 _ 1 2_ HEALTH 1WM1 PURSUANT TO TEX, CIV, PRAC, & REM, CODE, CHAPTER 74 § 74,052

A. I, Salvador Del Toro, Jr, (name of patient or authorized representative), hereby authorize Gerardo E, Chrome, M,D, (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) to Mauze Law Firm 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,

H. 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 Created Salvador Del Toro, Jr, (patient) in connection with the Injuries alleged to have been sustained In connection with the claim asserted in the accompanying NolIce of Health Care Claim:

Nix Hospital, 414 Navarro, San Antonio, TX 78205 Oerardo E. C6rcamo, M.D., 414 Navarro, Suite 830, San Antonio, TX 78205

This authorization shall extend to any additional physicians or health care providers that may in the future evaluate, examine, or treat Salvador Del Toro, Jr. (patient) for Injuries alleged in connection with the claim made the basis of the attached Notice of Health Care Claim; and

The health information In the custody of the following physicians or health care providers who have examined, evaluated, or treated Salvador Dal Toro, Jr. (patient) during a period commencing five years prior to the incident made the basis of the accompanying Notice of Health Care Claim:

Riverwalk Clinic, 414 Navarro, Suite 809, San Antonio, TX 78205 Val Verde Regional Medical Center, 801 Bedell Avenue, Del Rio, TX 76840 Antonio Cadena, KID., 2201 North Bedell, Suite A, Del Rio, TX 78840

C. Excluded Health Information—the following constitutes a list of physicians or health care providers possessing health care Information concerning Salvador Del Toro, Jr, (patient) to which this authorization does not apply because I contend that such health care information 18 not relevant to the damages being claimed or to the physical, mental, or emotional condition of Salvador Del Toro, Jr, (patient) arising out of the claim made the 4:24PM No, 3551 Sep. 29. 2014

basis of the accompanying Notice of Health Care Claim: NONE.

D, The persons or class of persons to whom the health information of Salvador Del Tom, Jr. (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 Salvador Del Toro, Jr. (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 Salvador Del Toro, Jr. (patient); . 3. Any consulting or testifying experts employed by or on behalf of Gerardo E. C6rcarno, MD. (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 Gerardo E. Garoarno, NUJ, (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; and 5, Any trier of the law or facts relating to any suit filed seeking damages arising out of the medical care or treatment of Salvador Del Toro, Jr. (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.

0. 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 o "atir t.

Date: Sa ador lel Toro, Jr.

Patient's Name: Salvador Del Toro, Jr, Patient's D.0.13.; 12.25.1973 Patient's SSI\1 451,77.9676 Sep, 29. 2014 4:24PM' No. 3551 F. 8

STYLF OF CASE SALVADOR DEL TORO, JP,

VS.

GERARb0 E. CARCA MO, Mt)

CASE NO.: 2013-C1-1913S

PERTAIN TO: Salvador Del Toro, Jr.

FROM : NIX OE ALTI-1CARi SYSTEM 1VIedical OEUVER TO Brett D. Rowe Evans & Rowe, P.C. 10101 Reunion Piace, Sone 900 San Antonio, TX 78216 •

IN THE DISTRICT COURT OE

BEXAR COUNTY, TEXAS

131ST JUDI 0 AL DISTRICT

Order No, 67437.001 Sep, 29. 2014 4:24PM No, 3551

'THE STATE OF TEXAS To any Sheriff or Constable of the State of Texas or other person. authorized to serve subpoenas under RULE 176 OF TEXAS RULES OF CIVIL PROCEDURE, - GREETINGS - You are hereby commanded to subpoena and summon the following witness(es): Custodian of Records for: NIX REALTITCARE SYSTEM 414 NAVARRO, SUITE 919 SAN ANTONIO, TX 78205 210-2714800 to be and appear before a Notary roblic of my designation for Republic. Services San Antonio 210-298-6300 6391 DeZavtila Road, Suite 300, San Antonio, TX 78249 or its designated agent, on tho forthwith day of Instanter at the office of the custodian and there under oath to make answers of certain 'written questions to be propounded to the witness and to bring and produce for inspection, and photocopying ANT AND ALL AUDICA,L RECORDS INCUR:ONG MIT NOT IMMO T O TflE POLLOMING: patient intake and/or history forms, a dmiSsion records, hospital records, mental health records, prescription records, physical therapy records, office notes, reports and correspondence, any and all medical reports or records, diagnostic studies, clinical abstracts, histories, discharge notes, chronological mummies, consultant reports, raw data, any patient records not located in the medical record library (such as emergency room records) and any correspondence, including any handwritten or typed notes to or from any nurse, doctor, physician, surgeon, or any other person, mad any other information, documents and opiotoxis relevant to past, present and future physical condition, treatment, care or hospitalization (11 RECORDS ADE 1V1A1NTAINED DXGXTAILY AND/OR ELECTRONICALLY, PLEASE PRODUCE ON CD),

and any other such record in the possession, custody or control of the said witness, and every such.rec,ord to whioh the witness may have access, pertaining so: Salvador Del Toro, Jr. ,Social Security Number XXX-XX-XXXX Date of lairthi 12/2511973 at any and all times whatsoever, then and there to give evidence at the instance of the represented by Richard Wainer, Attorney of Record, in that Certain Cause No, 2,013-C1-19135, pending on the docket of the District Court of the 131st judicial District ogtexar County,,, Texas. This Subpoena is issued under and by 'virtue of Rule 200 .trid Notice of Deposition Upon Written Questions on file with the above named court, styled SALVADOR DEL TO110, Jilt

1%,,erry c4 6e SI5012A 1,0,00, VS. ▪ SION Oi )-oxas Commlagioti • iNarcn 24, C."1,01(.4,3 2015 GERARDO E, CARCAMO, MD • and there remain. from day to day and time to time until discharged according to law,

WITNESS MY RAND, on this 14th, day of January, 2014. 11 r\

UkUk} NOTARY PUBL C

176,8 Enforcement of Subpoena. (a) Contempt. Failure by any person without adequate excuse to obey a subpoena sorvcd upon that person may be deemed a contempt of the court from. Which the subpoena is issued or a district court inthe county in which the subpoena is served, and may be punished by fine or confinement, ()Thoth. f.

Caine to band this A) day of °maw 20 RETURN and executed this the A 0, day of 20 /4, in the following manner: Ey delivering to the witness fightie,e - ,f/-A)42; a true copy hereof.

Rebuild this Ao_ day of 20 JT PROCESS S.P.M14. Soo. 29. 2014 4:25PM No. 3551

Order No. 67437.001 Sep. 29, 2014 4:25PM No. 3551 F. 11 Jan. a /V (1:.74PMIcraotiou iSOpubli.c Serva‘ces SA No. LIN P. hozioli

1.10. 1.013-0-19115

SALVADOR DEL TORO, JR. IN Tilt DISTRICT COURT Off

VS, 1 REXAR COX/N'M 1)(AS

GERARDO E, CARCAN 0, MI) HIST JUDICIAL DISTRICT

WAIVER OF NOTICE

our °Nut, Richard Wagner, bac commissioned Republic Services Sao Anionic to obthin records on Salvador D el Toro; Jr, 6'0 0\0 following custodian for use in the above rehrehca

IP COPIES ARE 1313,111tIfa, PLR A.913 iNDICATti )3A.0'0,/ '8Y MARKING Y OR N. Original records will be held Inhouse for 30 days. Copiog rrioy not be Available after that time. /1-/ 1 NIX HEALTHCARE SYSTEM (Medical) 1 NIX HEALTHCARE SYSTEM (Radial oa9) 3 VALVERDE RIZOYON'AI, MRDICAL CENTER (medical) 4 VAIL VERD E REGIONAL MEDICAL CENTER (Ito dloloo) 5 RIVERWALit'ORGENT CARE (MWit& An Radiology) 6 DR. ANTONIO COMA. (Medical Ana Radiology) 7 tiTGWrirvE DISE ASX5 CENTER Or SWIM TEXAS (Medical and Ri4(flo)ogy) iiernic 'hat r pudiorTrly firm will be responsible tbi payment of the copies of records ordered on this waiver, I acioovelcilgc, that 'ovuiec.g aro due and pNywitc, within 30 days of receipt and that acti ions fox collection of cervices are iencormabic and payable in licsae Co onty, Toas.

DO AORER TO WAIVB TIM NOTICE. PERIM, I DO NOT A (MBE TO WAIVE TILENOTICEPDRIO)),

Dated: Idnuary 14,2014

George W. Mane 111 Low Oftleo of George W, Monza, II 111 &dada& gull° 11Z7A San Antonio, TX 10105 5124154262 tido Attorney fox Plaintiff SDAf/

floaso Rolurn To Republic gcrvices Sap Antonio 091 DeZitYulia Road, Sulte300 gall Matadi°, TX 182.i9 210498-6300 Vax210298-003

NOM: RBT1MN MIS PoRMTS REQtrino Nsirmitl `MINTY (20) DAYS TO PROMS Y01.IR REQUEgT. .ANY CANCELLATYON Or TIC ABOVEMUST BE IN WRITING. IF MR RECORDS HAVB ALRBADY DUN COM) AND FBBg INCOMD, TIES ll (IAANG 'MUM PRORATED ACCORDINGLY,

67437 29. 2014 4:25PM No. 3551 P. 12

No 2013-CI-19135

SALVADOR DEL TORO, JR. IN THE PIS TRICE COURT OF

VS. 18EXAR COUNTY, TEXAS

GERARDO E. CARCAKO, MD 13IST JUDICIAL DISTRICT

NOTICE 01? INTENTION TO TAKE DEPOSITION BY 'WRITTEN QUESTIONS

To Plaintiff by and through their attorneys) of record: George W. Maine XI (Law Offices of George W. Mauzei

You will please take notice that twenty (20) days from theservtce of a copy hereof with attached questions, a deposition by written questions will be taken of Custodian of Records for: Nrx HEALTHCARE SYSTEM (Medical) 414 NAVARRO, strut 919, SAN ANTONIO, TX 78205

rau HEALTHCARE SYSTEM (Radiology) 414 NAVARRO, SUITE 919, SAN ANTONIO, TX 782.05

VAL VERDE REGIONAL MEDICAL CENTER (Medical) 801 NORTH BEDELL AVENUE, DEL RIO, TX 78840

VAL VEI2DE REGIONAL MEDICAL CENTER (Radiology) HI NORTH BEDELL AVENUE, DEL RIO, TX 78840

RIVERWALK URGENT CARE CLINIC (Medical and Radiology) 414 NAVA.P.RO, STE, 809, SAN ANTONIO, TX 78205

DR. ANTONIO CADENA (Medical and Radiology) 2201 NORTH BE AVENUE, STE. A, DEL RIO, TX 78840

DIGESTIVE DISEASES CENTER OP SOUTH TEXAS (Medical and Radiology) 621 CAMDEN STREET, SUITE 2.02, SAN ANTONIO, TX 78215

before a Notary Public for Republic Services San Antonio, 6391 DeZavala Road, Suite 300, San Antonio, TX 78249, 210-295-6300 Fax 210498.-6303, or its designated agent, which deposition with attached questions may be used to evidence upon the trial of the above-styled and numbered cause pending in the above named coari, Notice is further given that request is hereby made as authorized under Rule 200, Texas Rules of Civil Procedure, to the officer taking this deposition to issue a subpoena duces tecum and cause it to be served on the witness to produce any and all records as described on the attached questions and/or Exhibit(s) and any other such record in the possession, custody or control of the said witness, and every such record to which the witness may have access, pertaining to Salvador Del Toro, Sr. and w turn all such records over to the officer authorized to take this deposition so that photographic reproductions of the same may be made and attached to said deposition.

ichard Wagner Wagner Carlo, LLP 7718 Broadway San Antonio, TX 78209 210-9797555 Fax 210-9/9-9141 Attorney for Defendant SBA # 20661.130 hereby certify that a true and correct copy of the foregoing instrurnem has been forwarded to all Counsel of Record by hand delivery, FAX, and/or certified mail, return receipt requested, on this ty.

Dated: January 14, 2014 /1/1 0 Le.. ALAAA ' Order No. 67437 Sep. 29, 2014 4:25PM No. 3551 P. 1 3

No. 2013-CI-19135

SALVADOR DEL TORO, JR. IN THE DISTRICT Caw OF

VS, DE AR COUNTY, rocAs

GERARDO E. CARCAMO, MD 131ST JUDICIAL DISTRICT

DIRECT QMSTIONS TO )3E PROPOUNMD TO TIRE E WITNESS

Custodian of Records for NIX BRALTIICARE SITSUIVI

Records Pertaining To: Salvador Del Toro, jr,

Type of Records: ANY AND ALL IVEEDICAL RECORDS INCLUDING MIT NOT IliViTIRD TO ME POLLOWING1 patient intake and/or history forms, admission records, hospital records, mental health records, prescription records, physical therapy records, office no tes, reports and correspondence, any and all medical reports or records, diagnostic studies, clinical abstracts, histories, discharge notes, chronological summaries, consultant reports, raw data, any patient records not located In the medical record library (such as emergency room records) and any correspondence, Including any bandtvritten or typed notes to or front any nurse, doctor, physician, surgeon, or any other person, and any other information, documents and opinions relevant to past, present and tlintre physical condition, treatment, care or hospitalization (23? RECORDS ARE MAINTAINED DIGITALLY AND/OR ELECTRONICA)LLY, PLEASE PRODI1CR ON CD),

1. Please state your Ml name, address arid occupation.

Answer: blr.e,e,A9K 14/S-04-moi-rop,. KAAAPoketzt, 2. Did you receive a subpoena to produce records pertaining to the above-named individual and/ox companies?

Answer

3. Axe yo able to identify these records as the originals ortme copies and correct copies of the originals?

Answer: e'L 4. Were these records made and kept in the regular course of your business?

Answer_ \te-S 5, in the regular course of your business, did the person who signed or otherwise prepared these records either have personal knowledge of the entries on these records ox obtain the information to make such records from source's who have such personal knowledge?

Answer:

6. Are these records under your care, supervision, direction, custody or control?

Answer;

67437.001 Sep. 29. 2014 4:25PM No, 3551 P, 14

7, Are these records made at a timo closely related to or simultaneous with the, occurrence recorded on these records?

Were these records kept as described in the previous question?

Answer: S 9. Please gather all such records together and deliver same to the officer taldng your depositionfor inspection and photocopying .Rave you done as requested? If not, why not?

Arifcl/CX: \-ke-6 10, bo you understand that the subpoena you have received requites you to release arty and all records pertaining to Salvador Del Toro, Jr, including notes fro mother' facilities? If you have not done so, either do so DOW or explain why you are withholding such records.

AnSWer p.s \'\DAJ-t. fre-W a. l t &141,

ords)

Before me, the undersigned authority, on this day personally appeared v/ IA 1\. ((I 0\ known to me to be the person whose name is subscribed to the foregoing insttunient in capacity therein stated, who being first duly sworn, stateduponhis/her oath thM the answers to the foregoing questions axe true and correct. I briber certify that the records .attached hereto are exact duplicates of the origimIxe,cords,

SW0111\1 TO AND 8013Sc1t113n before me this Z 1 day of (L/( 20 1, L vergwarzcgaggurster ftrailt:a .

7% DANIEL RUBIO 4R. 0..., Notary Publio ' STATE OF TEXAS • My Comm, 5* Novembet 4, 2017

My Commission Expires: 1) f 2

67437.001 Sep 29, 2014 4:25PM No. 3551

SALVADOR DEL TORO, JR. IN THE DISTRICT COURT OF

VS. REX AR COUNTY, TEXAS

GERARDO E. CARCA1v10, MD 131ST JUDICIAL DISTRICT

NOTICE or DELIVERY

RE: NIX HEALTHCARE SYSTEM (Medical)

1, Monica Ga1van , Notary Public in and for the Stale of Texas, hereby certify pursuant to the Rule 206, Texas Rules of Civil Procedure,

1. That this Deposition by Written Questions of TVIa gda len a Garcia, the Custodian of Records for the above named is a true and exact duplicate of the records pertaining to Salvador Del Toro, Jr,;

2. That the transcript is a true record of the testimony given by the witness;

3. That $ .1,247.17 is the charge for the preparation of the completed Deposition by Written Questions and any copies of exhibits, charged to Attorney for Defendant, Richard Wagner, Tim # 20661 30;

4. That the deposition transcript was submitted on the 01/2112011 9:004.1v1 to the witness for examination, signatUre and return to the officer by a specified date;

5. That changes, if any made by the witness, in the transcript and otherwise ore attached thereto or incorporated therein;

6. That the witness returned the transcript;

That the original deposition by Written Questions and a copy thereof, together with copies of all exhibits was delivered to the attorney or party who Noticed the first questions for safekeeping and use al trial;

S. That pursuant to Information made a part of the records at the time said testimony was taken, the following includes all parties of record:

George W. lvlauze 11 (Law Offices of George W. Manz; II) Richard Wagner (Wagner Carlo, LLP)

and 9. A copy orthis Notice of Delivery was served on all parties shown herein.

GIVEN UNDER MY BAND AND SEAL OF OFFICE ON THIS DATE: FebnpiN 5, 2.014.

Republic Services San Antonio 6391 DeZavala Road, Snite 300 San Antonio, TX 78249 Notary Public in and for the State of Texas 2)0-298-6300 Fax 210-290-6303

MONICA GALVAN 67437.00) MY COMMISSION EXPIRES Aagust 22, 2016 4:25PM No. 3551 P, 16 Sep. 29, 2014

p•,

MED REC 4:76,31-01 ACCOUNT 4:104521034 11, ADMIT DATE/ TIME: 03/30/20`12 13:04

PATIENT INFORMATION CONFIDENTAUN DELTORO, SALVADOR 108 KING CHARLES DEL FII0, TX 788402628 HM PHONEi 830-313-0011

DOB:I2JO/1973 AGE 030Y SEX: MRTL STS:mARHIO SERVICE: SOC SEC 4:XXX-XX-XXXX RELIGION; CATHOLIC PRIMARY CARRIER: 4099 WEBTPAIHEALTHSIVIART

SECONDARY CARRIER: 0000

ADM DIAGNOSIS: 5770' ACUTE PANCREATIT

FINAL DIAGNOSIS:

SECONDARY DIAGNOSIS:

PROCEDURES (8):

CONSULTATIONS:

TYPE OF DISCHARGE: HOME GEN HOW SNP NH GEROPYSCH AMA DIED

REHAB HOME HEALTH HOSPICE

DISCHARGE DATE:t3J TIME id) er

SIGNATURE OF ATTENDING PHYSICIAN:

ADM CLERK: NHFIF1 REVISION DA TIME: ADM COMMENT: REG19

Acct: 104521034 Age'. 038Y DELTORO, SALVADOR Sex; M MX I-1 E A LTV ui 11 1 1 11 ATN CARCAMO, GERARDO E DOB, 12)2S/1073 W311: 76-31-01 CUNICAL FACESHEE A0002 A00021 Poe 1 of 1 Rev. 08/2011 11 1 11 I 111 1 , PDF processed with CutePDF evaluation edition www.CutePDF,com 1 - 5908489A6AF0RRFR0c (IPI Tow) 1 C. nom! e p. 29. 2014 4:26PM No. 3551 F. 17

01/20/2014 17:17 FAX 2102000303 ' flopublic S e rvices SA V1005/605

iW

H. Oopiof this Authorization eh II be ctyytned the acorn® es the oflginat Atso, fwelmile 00Plea olectronlo versions of okinatumpf any pally ehallby deemed the erre® en the ' ori9inst

8ignetu ant;

Date Salv al Toro, Jr,

Name of Patient: Mahnitclor 1)64 Tom Jr, Patients 0,0,4.; 12 26,19T3 Pe tlevitio 88N; 451.77,ERITO

• >i

00021 sdeP: 29. 2014 4:26PM No: 3551 P 18 ProOce® °Filing 2 - Case Inforrnalion

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Do Not Show Again Elope Sep 29. 2014 4:26PM No. 3551 P, 19

CAUSE NO: 2013-C1-1913S

SALVADOR DEL TORO, JR.. IN THE DISTRICT COURT

V. 13 JUDICIAL DISTRICT

GERARDO E. CARCAMO, M.D. AND RAW DOTLA, M.D. BEXAR COUNTY, TEXAS

ORDER DENYING DEFENDANT RAVI BOTLA,IVID.'S MOTION FOR SUMMARY )'UDGMENT

On this 16th day of September, 2014, came on to be considered Defendant Ravi

Botta, M.D.'s Motion for Summary Judgment. Plaintiff and Defendant Ravi Botta, M.D.

appeared by and through their respective attorneys of record. The Court, after reviewing

the motion and pleadings, being apprised of all facts, and hearing the arguments of

counsel, is of the opinion that said motion should be &Med. It is therefore,

ORDERED that Defendant Ravi Botla, M.D.'s Motion for Summary Judgment

shall be, and is hereby, DENIED.

SIGNED AND ENTERED On. this 16th day of September, 2014.

JUDGE PRESIDING'

APPROVED AS TO FORM ONLY:

MAUZE LAW FIRM 2632 Broadway, Suite 40IS San Antonio, Texas 78215 Telephone: 210.225.6262 Telecopier: 210.354.3909 Email: gmauzeAmauZelawfirrn.cOm

RGE W. UZE, II State Bar No. 13238800

ATTORNEY FOR PLAINTIFF Sep. 29. 2014 4:26PM No. 3551 P. 20

V. 1315' JUDICIAL DISTRICT

GERARDO E. CARCAMO, M.D. AND RAVI BOTLA, M.D. BEXAR COUNTY, TEXAS

ORDER GRANTING LEAVE OF COURT TO SUPPLEMENT PLAINTIFF'S PPOSITION TO DEFENDANT RAVI BOTLA M.D.'S MOTION FOR SUMMARY JUDGMENT

On the 16th day of September, 2014, came on to be considered Defendant Ravi

Botla, M.D.'s Motion for Summary Judgment. Plaintiff and Defendant Ravi Botla, M.D.

appeared by and through their respective attorneys of record. The Court, after heating

arguments of counsel took said matter under advisement and informed the parties that

they may file any additional evidence or provide additional case law pertaining to this

matter. It is therefore,

ORDERED that Leave of Court is granted authorizing the parties to file

additional evidence, Specifically, Leave of Court is granted for the filing of the evidence

filed by Plaintiff on September 29, 2014 pertaining to. the subpoena for health care

records of Plaintiff and the Pro Doc document regarding when an electronically filed

document is deemed filed.

SIGNED AND ENTERED onthis day of , 2014.

JUDGE PRESIDING

IvIAUZt LAW FIRM 2632 Broadway, Suite 401S San Antonio, Texas 78215 Telephone: 210.225.6262 Sep, 29. 2014 4:26PM No, 3551 P. 21

Telecopier: 210.354.3909 Email: gmaaze a nauzelawfirm :coin

°R OE W z ,II State Ihr No, 1'3238800

2 APPENDIX TAB “J” FILED 10/1/2014 10:01:15 AM Donna Kay McKinney Bexar County District Clerk Accepted By: Barbara Segovia

EVANS, ROWE & HOLBROOK ATTORNEYS AT LAW

Union Square, Suite 900 Brett 13. Rowe 10101 Reunion Place Board Certified: San Antonio, TX 78216 Personal Injury Trial Law Texas Board of Legal Specialization (210) 340-6555 Fax (210) 340-6664 Direct Dial: (210) 384-3271 www.evansrowe.coin bbroweip,evans-rowe.com

October 1, 2014

Via Facsimile (210) 335-3950 Honorable Peter Sakai Judge, 225th District Court Bexar County Courthouse 100 Dolorosa San Antonio, Texas 78205

RE: Cause No. 2013-CI-19135; Salvador Del Toro, Jr. v. Gerardo E. Carcamo, M.D. and Ravi Botla, M.D.; In the 131st Judicial District, Bexar County, Texas

Defendant, Ravi Botla, M.D. has moved for summary judgment in this matter arguing that Plaintiff's lawsuit was filed after the two year statute of limitations. Dr. Botla's position is that Plaintiff did not get the 75-day tolling period under Chapter 74 because his Authorization was insufficient under the statute. Moreover, even if Plaintiff had served any defendant with a sufficient Authorization prior to the expiration of the statute, his case would have still been time barred because he filed his lawsuit 2 years and 76 days after the cause of action accrued; since Chapter 74 provides an absolute statute of limitation notwithstanding any other law, including rules of civil procedure, the statute of limitations passed on Sunday, March 2, 2014. Since Plaintiff's lawsuit was not filed until Monday, March 3, 2014, he filed outside the limitations period even if he had served a sufficient authorization.

Noting the above, you presided over the hearing on our motion for summary judgment on September 16, 2014. At the conclusion of the hearing, you invited the parties to provide you with any additional arguments supportive of their respective positions. Please accept the following as Dr. Botla's additional arguments and response to Plaintiff's recent letter to the Court: Honorable Peter Sakai October 1, 2014 Page 2

I. Timeline of Events

For ease in the review of the relevant history of the case, Dr. Botla provides the following chart, which summarizes the relevant events: _, Date R.L' d 12/15/2011 Plaintiff admitted to Nix Hospital PI Evidence-Exh. 2 12/17/2011 Dr. Botla examined patient and ordered colon PI Evidence-Exh, 2 0730 prep for a colonoscopy. 12117/2011 Dr. Botla's last communication on 12/17/2011 with PI Evidence-Exh. 2 1850 Nix Hospital nurses relative to treatment of Plaintiff. : 1 . 12/1712011. bate df.accrual:of cause of action against br, Botla (although Dr, Botla saw the.patient after 12/17/2011, there are no allegations-of negligence related to that care singe the perforation had already occurred in the early morning hours of 12/1.8i201.1) 06/11/2013 Plaintiff served co-defendant Carcamo with Def Evidence-Exh. E insufficient Authorization 11/20/2013 Plaintiff sued co-defendant Carcamo Def Evidence-Exh. A 12/16/2013 Co-defendant Carcamo filed Plea in Abatement Def Evidence-Exh. G for insufficient pre-suit Authorization •-, .- 12/17/2013 - .. . ,Expiration ,.. cif?Stpar . .. sta tute- of limitations as to Dr. Botia 01/08/2014 Plaintiff provides co-defendant Carcamo a revised PI Evidence-Exh. 5 authorization "in accordance with Ch. 74.351 of the Tex. Civ. Prac. & Rem. Code allowing the disclosure of medical records to Defendant." (emphasis added) 01/23/2014 Plaintiff provides co-defendant Carcamo with an PI Evidence-Exh. 6 additional revised authorization, this time adding additional providers. •--031.02/20114 70t'' day-after thipe)cperatIon of the statute,oflomitatmns., 03/03/2014 Plaintiff filed suit against Dr. Botla after the Def Evidence-Exh. B expiration of the statute of limitations.

II. Plaintiff's June 11, 2013 Authorization was insufficient to toll the statute of limitations.

Contrary to Plaintiff's position, the question of whether an authorization is sufficient under Chapter 74 to toll the statute of limitations does not turn on whether the form provided by Plaintiff pre-suit was a HIPAA form versus a form that fails to track the language of and include the information required by Section 74.052. An authorization, Honorable Peter Sakai October 1, 2014 Page 3

even if similar to that provided in Chapter 74 rather than a HIPAA form, is not compliant and does not toll the statute if, as here, it does not authorize the defendant to obtain and disclose protected health information and does not disclose the plaintiff's treating physicians for the previous five years. See Mitchell v. Methodist Hospital, 376 S.W.3d 833, 838 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (HIPAA form provided in that case).

The courts that have determined that medical authorizations were insufficient to toll the statute have compared the authorizations to Chapter 74, not on whether the authorization was a HIPAA form versus an attempted Chapter 74 form. For instance, in Nicholson, one of the authorizations provided by the Plaintiff pre-suit was in the form required by Chapter 74, except that no current or past healthcare providers were identified. Nicholson v. Shinn, No. 01-07-00973-CV, 2009 WL 315211 (Tex. App,— Houston [1st Dist.] 2009). Rather, the Plaintiff simply filled in his name at the top of the form and signed and dated it (see Exhibit "A" to this letter, a copy of the Authorization provided in that case, as obtained form Harris County's online docket), The court held that since Plaintiff did not identify her treating physicians or authorize the defendant to obtain and disclose the records, Plaintiff "failed to substantially comply with section 74.051 and 74.052." Id. at *5-6. In this case, Plaintiff's purported authorization only allowed records to be disclosed to his own attorney and also failed to include several of his prior treators for the very medical condition that brought about the medical care at issue (diverticulitis).

Similarly, applying the precedent of Carreras, Mitchell, Nicholson, and Cantu (all cited and discussed in Defendant's Motion for Summary Judgment and Reply), the 113th District Court in Harris County has recently held that an authorization similar to Plaintiff's in this case was insufficient to toll the statute of limitations. See Fred Myles v. St. Luke's Episcopal Hospital, No. 2012-36049, 113th Judicial District, Harris County Texas (pending in the 14th Court of Appeals, No. 14-13-01148-CV). In the Myles case, although the plaintiff served an authorization in the form required by Chapter 74, the trial court determined that the plaintiff's authorization was insufficient because it failed to identify the plaintiff's healthcare providers for the five years preceding the incident. (See Exhibit "B" to this letter, a copy of the Authorization provided in that case and a copy of the trial court's final judgment) While the case is currently pending an appeal by Plaintiff, the trial court's ruling is consistent with the arguments made by Dr. Botla in this case. In this case, Plaintiff's purported authorization neither allowed any defendant to obtain and disclose Plaintiff's medical records nor included all of his prior treators for the preceding five years for the very medical condition that brought about the medical care at issue (diverticulitis).

Finally, in relation to Plaintiff's position that Dr. Carcamo's counsel attempted to use the bad authorization to obtain medical records from Nix Hospital, that argument is irrelevant to the discussion on a number of grounds. First, it should be noted that the request to the records company by the office of Dr. Carcamo's counsel even recognizes Honorable Peter Sakai October 1, 2014 Page 4

that Dr. Carcamo's office "doubt[ed] [the authorization would] be accepted by any healthcare provider." Moreover, the records retrieval company retrieved the records via a deposition subpoena, such that the sufficiency of the authorization was likely not considered by the facility when it turned over the records in compliance with a subpoena. Further, even had Nix produced records in reliance on the authorization, that does not change the fact that Plaintiff failed to list several significant medical providers that treated him in the five years preceding the incident, thereby limiting any defendant's ability to investigate the claim. Ultimately, Plaintiff cannot escape from the fact that the insufficient authorization thwarted the physicians' ability to investigate the claims pre-suit, which is the purpose of the statute requiring the authorization. Dr. Botla also objects to Plaintiff's purported summary judgment evidence attached to his recent letter to the Court because it was untimely filed.

Ill. The only negligence asserted against Dr. Botla occurred on December 17, 2011.

Plaintiff incorrectly asserts in his letter to the Court that Dr. Botla's positon is that he did not participate in Plaintiff's treatment after December 17, 2011. Rather, Dr. Botla's position is that this cause of action accrued on December 17, 2011, because that is the last date of any alleged negligence by Dr. Botla. Plaintiffs allegations against Dr. Botta relate to the order for the colon prep, which was ordered and administered on December 17, 2011. No colon prep was administered after December 17, 2011. Plaintiff has also asserted negligence related to Dr. Botla's failure to diagnose the patient's colon perforation. However, his last involvement with the patient's care before the diagnosis of colon perforation was made was at 6:50 p.m. on December 171". Therefore, none of Plaintiff's allegations against Dr. Botta occurred after December 17th, even though Dr. Botla did treat the patient after that. As previously noted in Dr. Botla's prior briefing, if the date the alleged tort occurred is ascertainable, limitations must begin to run on that date. Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001).

IV. Regardless of the effective date of filing, TRCP 4 and CPRC 16.072 cannot extend the statute of limitations because the absolute two- year statute of limitations under Chapter 74 controls.

Dr. Botla agrees with Plaintiff's counsel that, under the Texas Rules of Civil Procedure, a document filed on a weekend is deemed filed on the next day that is not a weekend or legal holiday. TEX. R. Civ. PROC. 21(f)(5)(A) (counsel for Dr. Botla was uncertain what the Rules said about this issue at the time of the hearing, but has since had an opportunity to review the applicable Rule). However, that does not change the fact that Section 74.251 provides that the two year statute of limitation applies notwithstanding any other law and that Section 74.002 further provides that in the event that any rule of procedure, i.e., Rule 4, conflicts with the two year statute of limitations, Chapter 74 prevails. TEX. Civ. PRAC. & REM. CODE §§ 74.251(a), 74.002(a). As argued in Dr. Botla's Motion and Reply, any rule of procedure, i.e., Rule 4, that would alter, Honorable Peter Sakai October 1, 2014 Page 5

interrupt, toll or postpone the running of the statute at exactly two years is in direct conflict with Section 74.251 and Section 74.251 therefore controls. Notwithstanding any other law, Plaintiff gets two years to file suit.

For the Court's convenience, Dr. Botla is providing an Order Granting Motion for Summary Judgment and for Severance of Defendant Ravi Botla, M.D., which can be found at Exhibit "C" to this letter.

Again, should this Court deny Defendant's Motion for Summary Judgment, Dr. Botla respectfully requests that the Court permit an immediate appeal from its interlocutory order pursuant to CPRC 51.014 because this matter involves a controlling question of law as to which there is a substantial ground for a difference of opinion and because an immediate appeal from the order may materially advance the ultimate termination of the litigation.

Thank you for your thoughtful consideration of Defendant's Motion, Reply, and this additional letter briefing. Should you require any additional information or material from Dr. Botla, please let me know.

Brett B. Rowe

Attachments

cc: w/attachments George W. Mauze, II Via Facsimile (210) 354-3909 Mauze Law Firm

w/attachments W. Richard Wagner Via Facsimile (210) 979-9141 Wagner Cario, LLP PDT

AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION

A. I, ii-rzt NicHoLsoxi , hereby authorize (Name of patient or authorized representative)

(Name of the physician, practice group, or other healthcare provider to whom the notice of health carc ,_ is directed)

to obtain and disclose (within the parameters set out below) the protected heal&hformation described in this agieement for the following specific purposes:

1.To facilitate the investigation and evaluation of the health care cl escribed in the accompanying Notice of Health Care Claim and/or;

2. To investigate any litigation arising out of the claim made t asis of the accompanying Notice of Health Care Claim.

B. The health information to be obtained, used and/or discNitextends ( to and includes the verbal as well as the written and is specifically described as folio iV

1. The health information in the custody of the ing physician(s) and/or health care provider(s) who have examined, evaluated and/or treated (Patient) in connecti t the injuries alleged to have been sustained in connection with the claim asserted in thcpanying Notice of 14;:alth Care Claim. (Here list the name and current address of all treating physiciator health care providers.)

r' This authorization shall exteri any additional physicians and/or healthcare providers which may in the future evaluate, exa and/or treat a ) for injuries alleged in connection with the cla:m made the basis of the attached Notice of H are Claim;

2. The health infgriri on in the custody of the following physicians and/or healthcare providers who have exaq.,44,'N4 evaluated and/or treated (Patient) during a perior:N'mmencing five years prior to the incident made the basis of the accompanying Notice of Care Claim. (Here list the name and current address of such physicians and/or health care providers, of a cable.)

C. Excluded Health Information The following constitutes a list of physicians and/or health care providers possessing health care information concerning (Patient) to which this authorization does not apply because I contend that such health care informttion 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 off persons to whom the health Information of (Patient) will be disclosed or who will make use fd information are;

1.Any and all physicians or health care providers providing care or tt;e nt to (Patient);

2. Any liability insurance entity providing liability insurance r1 ',Iage and/or defense to any physician or health care provider to whom Notice of Health 'Claim has been given with regard to the care and treatment of (Patient);

3. Any consulting or testifying experts employed by or h Behalf of ame of physician or health cure provider to whom Notice of Health Care Claim has been given) with regard ;Al matter set out in the Notice of Health Care Claim accompanying this authorization; t. C7.!•,

4. Any attorneys (including secretarial, cler or paralegal staff) employed by or on behalf of (Name of physician or health care provider to whom witOegard to the matter set out in the Notice of Health Care Notice of Health Care Claim has been given) Claim accompanying this authorizatioVn

5, Any trier of the law or facts r g to any suit filed seeking damages ar sing out of the medical care or treatment of (Patient).

E. This authorization shall expiry resolution of the claim asserted, or at the conclusion of any litigation instituted in connecttot c1) h that claim.

F. I understand that, witholgexception, I have the right to revoke this authorization in writing. I further understand the of quence of any such revocation as set out in Sectiot, 74.052, Civil Practice and Remedies Code.

G. I understand th e signing of this authorization is not a condition for continued treatment, payment, enroilm 1 or eligibility for health plan benefits.

H. I understand that information used or disclosed pursuant to this authorization may be subject to re-disclosurepy the recip nt and may no longer be protected by Federal HIPAA privacy regulations/ a- j 6/ -•-• /03 Signature of Patten e s ntativc Date

/trz.( VICHOLscyti Please Print Name of Patient/ Representative Description of Representative's Authority AOTHOE,IZA;TION FOR •PRCYFECT D H AL TEI T OEMATIQI

I, MD MYLES,. hereby authorize ST, LIME'S EPISCOPAL Rosrriat, to obtain and disclose (within the parameters set out below) the protected health information described below for the following specific purposes:

To facilitate the investigation and evaluation of the health care cltdm described in the aetompanying Notice Of Health Care Claim; Cr Defense of any litigation arising, out of the claim made the basis of the moot%) g Notice of Health Care Claim. The health information to be obtained, used, or disclosed extends to and includes the- -irti.ital as well as the written and is specifically described as follows:

The health information in the custody of the following physician health care providers who have examined, evaluated, or healed ,FRED MYLES in connection with the ' alleged to have been sustained in connection with the claim asserted in the accompanying Notice °Meal laim; TIR.R, 1333 Moursoud Street, Houston, Texas 77030; and 0 025) SELECT SPECIALTY HOSITTAL-HOUSTON WEST, Id Katy Freeway, Houston, Tx. 77055 This authorization shall extend to any additional physicians 4 h care providers that may in the future evaluate, examine, or treat FRED MYLES for injuries alleged in co tion with the claim made the basis of the attached Notice of Health Care Claim. e3

The health information in the custody of the folio hysicians or health care providers possessing health care information concerning FRED MYLES to w authorization does not apply because I contend that such health care information is not relevant to the ages being clainted or to the physical, mental, or emotional condition of MD MYLES arising out of th aim made the basis of the accompanying Notice of Health Care Claim. (Hem stele "none" or list the nanoe4 t-ach physician or health care provider to whom this authorization does not extend and the inclusive dates of ex On, evaluation, or treatment to be withheld from disclosure.):

The persons or class of p rs oni the health infOrMati011 of FRED MYLES will be disclosed or who will make use of said inform

Any and alt p dans or health care providers providing care or treatment to FRED MYLES.

Any 1';44119 nonce entity providing liability insurance coverage or defense to any physician or health Care provider t Notice of Health Care Claim has been given with regard to the care and treatment of FRED MYLES; consulting or testifying experts employed by or on behalf of ST. ID 'S EPISCOPAL HOSPITAL with r to the matter set oat in the Notice of Health Care Maim accompanying this authorization;

Any attorneys (including secretarial, clerical, or paralegal staff) employed by or an behalf of ST, LUKE'S EPISCOPAL HOSPITAL with regard to the matter set out in the Notice of Health Care Claim accompanying this authorization; and Pay trier of the law or tots Tel to any 6tt filed seAth4 thanagee arts out fete medical owe ar teatimes of FRED 144YILEX.

This suihsristsikin,sbaAl exPhO Twohalou otthe claim mated or at *a cancludon of arty Titiggiatz inettinted in multotka with the subject =der ef the Z n o &el* Oar. CWia noixambig t orization, gohesver oecurs so era Yd 'it, * excePtore, I We th0 Vitt() rt VOW Ads atacoization I firtheT trate otAstvautoe ()raw Atteh tavooatiou as set °din SWIM 14.052, CM1 ?norm es axle. I widetstandibat eft signing adds extherrizetioti is note coathti0ta Er,r .111.11 : payment wiroihnent or ibrinetft plan benefits. I uncittatadfiiii .Wanntitiort awlbx disaiosetl.parsoat to this resipieut sod maitIOSIRArhelzeesstedlrY-04ests1101AA PlivstaY CAUSE NO. 2012-36049.

FRED MYLES IN THE DISTRICT COURT OF

VS. HARRIS COUNTY, TEXAS

ST. LUKE'S EPISCOPAL HOSPITAL 11 3TH JUDICIAL RICT

FINAL JUDGMENT o After considering the Motion for Summary Judg Based on Inadequate -1 N 24 1

L z,€„, 2 Medical Authorization of Defendant, ST. LUKE'S SCOPAL HOSPITAL, the co o o,1 evidence, the response, and arguments of counsel Court is of the opinion that the 1:3 •E 'E $)- 42-co itAeamotion should be, in all respects, GRANTED,

It is, therefore, ORDERED, ADJ. and DECREED that the claims of

Plaintiff, FRED MYLES, against ST. LIE'SEPISCOPAL HOSPITAL are dismissed

with prejudice and Plaintiff takes 4hing from Defendant in the above-referenced

lawsuit:

Costs of court shall b id by the Plaintiff. This is a final judgment disposing of

all claims. All relief not x9ssly granted herein is denied.

00 0 SIGNED. day of , 2013. 0

J DGE IDING

Page 8 of 11 RECORDER'S MEMORANDUM This instrument is of poor quality at the time of imaging CAUSE NO. 2013-CI-19135

GERARDO E. CARCAMO, M.D. AND RAVI BOTLA, M.D. BEXAR COUNTY, TEXAS

ORDER GRANTING MOTION FOR SUMMARY .JUDGMENT AND FOR SEVERANCE OF DEFENDANT RAVI BOTLA,

On the 16th day of September, 2014, came on to be heard the Motion for Summary

Judgment of Defendant Ravi Botla, M.D. The Court, having considered the Motion, Plaintiff's

Opposition, Defendant's Reply, pleadings timely filed, the summary judgment evidence, and

argument of counsel, hereby rules that said motion is meritorious and should be in all things

GRANTED because Plaintiff filed his lawsuit against Dr. Botla after the expiration of the

statute of limitations.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiff take

nothing against Defendant Ravi Botla, M.D.; that Plaintiff's claims and causes of action

against Defendant Ravi Botla, M.D. are hereby dismissed with prejudice; that Plaintiff's claims

and causes of action against Defendant. Ravi Botla, M.D. are hereby severed from all other

causes of action alleged in Plaintiff's Third Amended Petition; and that the severed causes of

action shall be and are hereby assigned the separate cause number of

. All remaining causes of action against other defendants

shall proceed under the original cause number. All relief requested that is not expressly

granted is hereby denied.

HONORABLE JUDGE PRESIDING APPENDIX TAB “K” OCT-10-2014 00:23 From:225th Cowt 2108353950 To:93406664

Peter Sakai 225" District Court Boxer County Courthouse San Antonio, Texas 78205

Telephone: 210-335-2233 Facsimile: 210-335-3950

FAX COVER SHEET

TO:

FROM: '01 " : \ 11 Av.

DATE:

NO. OF PAGES (including this cover sheet): .41.11.1111.9.311.1e1000MEre.a.e•

IVIESSAGE OCT-10.-2014 08:23 From:225th Court 2103353950 To:93406664 Ptyci:2/3

PETER SAKAI 225t1j Yubittat a if‘tritt Court Bexar County Courthouse Judge San Antonio, Texas 78205 (210) 335-2233

October 10, 2014

Mr. George W. Mauze II Via Fax No.: 210-354-3909 Mauze Law Firm 2632 Broadway, Suite 401 South San Antonio, Texas 78215

Mr, Brett B. Rowe Via Fax No.: 210-340-6664 Ms. Nickie K. Elgie Evans, Rowe & Holbrook, P.C. 10101 Reunion Place, Suite 900 San Antonio, Texas 78216

Mr. W. Richard Wagner Via Fax No,: 210-979-9141 Wagner Carlo LLP 7718 Broadway, Suite 100 San Antonio, Texas 78209

RE: CAUSE NO. 2013-CI-19135; Styled: SALVADOR DEL TORO JR, v. GERARDO E. CARCAMO, M.D. and RAVI BOTTA, M.D.; Filed: 131st DISTRICT COURT, BEXAR COUNTY, TEXAS.

Dear Counsels:

After careful review and deliberation of the briefs, memorandums, motions and argument of counsels, the Court has made the following findings and will issue the following orders: Motion for Summary Judgment and for Severance of Defendant Ravi Botla, M.D. is DENIED and Defendant Ravi Botla, M.D.'s request for this Court to permit an immediate appeal from its Interlocutory Order pursuant to CPRC 51.014 is GRANTED.

I will request that the prevailing party of their respective Motions draft an order reflecting the Order of the Court and submit it to opposing counsel for approval as to form only. I will sign the Order when submitted to the Court forsignature. Further, I will instruct the clerk of the court to file all original papers, motions, briefs and memorandums with the District Clerk's Office. All exhibits will be returned to the official court reporter for further disposition. The Court will withdraw all exhibits upon the agreement of all the parties. Additional materials provided to the court will be given to the court reporter for safekeeping and retrieval by the respective parties. SO ORDERED. 0CT-10-2014 09:23 From:225th Court 2103353950 To:93406664 Pago:3/3

Page Two Letter to Counsels Mauze, Rowe & Wagner October 10, 2014

I appreciate the professionalism and courtesies extended by all counsels.

Respectf

Peter Sakai