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

Opinion

ACCEPTED 01-15-00350-cv FIRST COURT OF APPEALS HOUSTON, TEXAS 9/17/2015 10:24:05 AM CHRISTOPHER PRINE CLERK

No. 01-15-00350-CV

IN THE FIRST COURT OF APPEALS FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS AT HOUSTON, TEXAS 9/17/2015 10:24:05 AM ___________________________________________________________ CHRISTOPHER A. PRINE Clerk

SHAN KOVALY, Appellant

v.

TULSIDAS KURVANKA, ET AL., AND IKEDINOBI U. ENI, M.D., ET AL., Appellees ___________________________________________________________

Appeal from Cause No. 2014-66001, in the 113th District Court of Harris County, Texas ___________________________________________________________

APPELLANT’S BRIEF ___________________________________________________________

SIMPSON, P.C.

Iain G. Simpson State Bar No. 00791667 1333 Heights Boulevard, Suite 102 Houston, Texas 77008 (281) 989-0742 iain@simpsonpc.com APPELLATE COUNSEL FOR SHAN KOVALY

ORAL ARGUMENT CONDITIONALLY REQUESTED TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ...................................................... v

INDEX OF AUTHORITIES .............................................................................. vii

STATEMENT OF THE CASE ............................................................................ ix

STATEMENT CONCERNING ORAL ARGUMENT ..................................... x

ISSUES PRESENTED ........................................................................................... 1

The trial court erred by granting all defendants/appellees summary judgment on Kovaly’s healthcare liability claims.

STATEMENT OF FACTS .................................................................................... 2

Factual History .......................................................................................... 2

Procedural History .................................................................................... 3

SUMMARY OF THE ARGUMENT ................................................................... 4

ARGUMENT ......................................................................................................... 5

I. The Standard of Review................................................................ 5

II. Kovaly’s cause of action accrued, at the earliest on August 20, 2012................................................................................ 6

III. The Medical Liability Act’s limitations period is two years—plus 75 days where pre-suit notice is given................. 7

1. The Medical Liability Act’s tolling provision. ........................ 7

a. “Tolling and “notice” are not the same thing. ............................................................................. 8

ii b. Under De Checa, notice given to one party tolls limitations as to all potential parties, including those who do not receive notice. ............ 9

2. Notice to Wal-Mart Stores Texas tolled limitations as to Drs. Eni and Kuruvanka. .................................................. 10

3. The Appellees argued before the trial court that the opportunity for pre-suit evaluation and settlement negotiation is a significant policy consideration. But it is not the only pertinent consideration. ............................. 12

4. The policy preference for pre-suit evaluation gives way to other considerations. .................................................. 13

IV. Kovaly gave notice to a defendant within two years and filed the instant suit within the extended limitations period, and the trial court’s granting summary judgment on the basis of limitations was, therefore, erroneous. .................................................................... 16

CONCLUSION ................................................................................................... 17

PRAYER ............................................................................................................... 18

CERTIFICATE OF COMPLIANCE ................................................................. 19

CERTIFICATE OF SERVICE ............................................................................ 20

Summary Judgment Order .................................................... Appendix 1

TEX. CIV. PRAC. & REM. CODE § 74.051. ................................. Appendix 2

TEX. CIV. PRAC. & REM. CODE § 74.052 .................................. Appendix 3

iii TEX. CIV. PRAC. & REM. CODE § 74.251 .................................. Appendix 4

iv IDENTITY OF PARTIES AND COUNSEL

APPELLANT

Shan Kovaly

Appellate Counsel: Trial Counsel:

Iain G. Simpson Steven R. Davis Simpson, P.C. Davis & Davis 1333 Heights Boulevard, Suite 102 440 Louisiana, Suite 1850 Houston, Texas 77008 Houston, Texas 77002 (281) 989-0742 (713) 781-5200 (281) 596-6960 – facsimile (713) 781-2235 – facsimile iain@simpsonpc.com steve@davis-davislaw.com

APPELLEES

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

Trial Counsel:

James B. Edwards Edwards & Stephens 12603 Southwest Freeway, Suite 200 Stafford, Texas 77477 (281) 277-4940 (281) 277-4974 – facsimile jbe@malpracticedefense.com

v Ikedinobi U. Eni, M.D.; Ikedinobi U. Eni, M.D., P.A.; and Eni Health Care

Trial Counsel:

Joel Sprott Sprott, Newsom, Lunceford, et al. 2211 Norfolk, Suite 1150 Houston, Texas 77098 (713) 523-8338 (713) 523-9422 – facsimile sprott@sprottnewsom.com

Lead Appellate Counsel:

Diana Faust Cooper & Scully, PC 900 Jackson Street, Suite 100 Dallas, Texas 75202 Diana.faust@cooperscully.com

vi INDEX OF AUTHORITIES

Cases

Carreras v. Marroquin, 339 S.W.3d 68 (Tex. 2011)..................................................................... 13

College Station Med. Ctr. v. Kilaspa, No. 10-14-00374-CV, 2015 Tex. App. LEXIS 7618 (Tex. App.—Waco Jul. 23, 2015, n.p.h.). ................................. 14-15, 17

De Checa v. Diagnostic Ctr. Hosp., 852 S.W.2d 935 (Tex. 1993)................................... 8, 9, 10, 11, 13, 16, 17

Diversicare Gen. Ptnr., Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005)......................................................................6

Mitchell v. The Methodist Hospital, 376 S.W.3d 833 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) .................... 11, 12

Parrish v. Brooks, 856 S.W.2d 522 (Tex. App.—Texarkana 1993, no writ). .................. 10

Provident Life & Accident Ins. v. Knott, 128 S.W.3d 211 (Tex. 2003)......................................................................5

Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643 (Tex. 2000)........................................................................6

Rabatin v. Vazquez, 281 S.W.3d 563 (Tex. App.—El Paso 2008, no pet.). ........................ 10

Sewell v. Adams, 854 S.W.2d 257, 261 (Tex. App.—Houston [14th Dist.] 1993, no writ). ......................... 8, 10

vii Shah v. Moss, 67 S.W.3d 836 (Tex. 2001)........................................................................6

Thompson v. Community Health Inv., 923 S.W.2d 569 (Tex. 1996)........................................................... 7, 8, 16

Statutes

TEX. CIV. PRAC. & REM. CODE § 74.051.......................................... 3, 7, 8, 11-17

TEX. CIV. PRAC. & REM. CODE § 74.052............................................. 3, 7, 11, 12

TEX. CIV. PRAC. & REM. CODE § 74.251............................................. 6, 7, 14, 16

Rules

TEX. R. APP. P. 9.4 ............................................................................................. 18

TEX. R. APP. P. 38.1 ..............................................................................................1

TEX. R. CIV. P. 166a. .............................................................................................5

viii STATEMENT OF THE CASE

Nature of the Underlying Proceeding

The case before the Court is a healthcare liability claim based upon an

incorrectly written prescription for medication.

Subject of Relief

The case comes before the Court on appeal from the trial court’s

granting summary judgment to all parties based upon the affirmative

defense of the statute of limitations. Kovaly seeks reversal of the trial

court’s Order.

ix STATEMENT CONCERNING ORAL ARGUMENT

Kovaly requests oral argument only conditionally. Kovaly’s

arguments are based upon settled case law from the Texas Supreme Court.

It is the Appellees who are likely to argue that this Court should—as the

trial court did—ignore that settled precedent. The Appellees are, thus,

more likely to press for oral argument. Should the Court grant it to them,

Kovaly requests equal time. Otherwise, Kovaly waives oral argument.

x No. 01-15-00350-CV

IN THE FIRST COURT OF APPEALS

AT HOUSTON, TEXAS ___________________________________________________________

SHAN KOVALY, Appellant

v.

TULSIDAS KURVANKA, ET AL., AND IKEDINOBI U. ENI, M.D., ET AL., Appellees ___________________________________________________________

Appeal from Cause No. 2014-66001, in the 113th District Court of Harris County, Texas ___________________________________________________________

APPELLANT’S BRIEF ___________________________________________________________

Pursuant to TEX. R. APP. P. 38.1, Appellant Shan Kovaly files this

Appellant’s Brief.

ISSUES PRESENTED

The trial court erred by granting all defendants/appellees summary judgment on Kovaly’s healthcare liability claims.

1 STATEMENT OF FACTS

Factual History

The relevant facts are largely undisputed. Kovaly presented to

Houston Northwest Medical Center on August 28, 2012, with complaints of

chest pain. CR 5. His evaluation revealed elevated cardiac biomarkers. Id.

Kovaly underwent angioplasty with stenting by Dr. Kuruvanka. Id. Upon

his discharge, Kovaly was prescribed Lopressor 25 mg twice a day,

Pravachol 20 mg at bedtime, aspirin 325 mg daily, Plavix 75 mg daily and

Lisinopril 10 mg twice daily. Id. Dr. Kuruvanka prescribed the medications,

and Dr. Eni discharged him from the hospital on August 30, 2012. Id.

Neither reviewed his prescriptions to ensure they were complete. Id.

Subsequently, Kovaly timely presented his prescriptions to a Wal-

Mart pharmacy for filling. Id. Wal-Mart’s pharmacist refused to fill the

prescriptions due to the prescriptions’ omission of a quantity of pills to be

dispensed. Id. Neither Wal-Mart nor Kovaly were able to reach either of the

Defendant physicians over a period of the next four days. Id. On September

4, 2012, Kovaly was readmitted to Houston Northwest Medical Center with

chest pain. CR 6. Ultimately, he was found to have in-stent thrombosis,

attributable to the fact that he was not taking the prescribed Plavix—a

2 blood thinner. Id. He has required additional hospitalization and treatment,

as a result. Id.

Procedural History

On July 23, 2013, Kovaly, through his attorneys, sent pre-suit notice

and a health care authorization to Wal-Mart Stores Texas, LLC, as required

by TEX. CIV. PRAC. & REM. CODE §§ 74.051 and 74.052. CR 82-85. On July 25,

2013, Kovaly filed suit against Wal-Mart Stores Texas and several of its

unknown agents. CR 88-94. The facts, as recited by Kovaly’s lawsuit

against Wal-Mart Stores Texas, describe the same incident and injuries that

are the subject of the case at bar. Id. Wal-Mart Stores Texas removed

Kovaly’s suit to federal court, where it ultimately was awarded summary

judgment on the grounds that it had no duty to fill an incomplete

prescription on October 21, 2014.1 On November 11, 2014—273 days after

leaving Dr. Eni’s and Dr. Kuruvanka’s care—Kovaly filed the instant suit.

CR 3-9.

Both the Eni and Kuruvanka defendants made appearances and later

moved for traditional summary judgment on the sole ground of the statute

1 The ruling is currently on appeal before the Fifth Circuit Court of Appeals.

3 of limitations, arguing that Kovaly filed suit against them outside the two-

year limitations period. CR 21-29; 35-45. Both sets of defendants

acknowledged the notice letter and authorization sent by Kovaly to Wal-

Mart in July of 2013. CR 30-33; 55-58. In his summary judgment response,

Kovaly argued that notice to one potential defendant triggers a 75-day

tolling period under the Texas Medical Liability Act, after which the

limitations period continues to run and that his notice to Wal-Mart was

sufficient to trigger the tolling period. CR 68-81. The defendants

responded that the notice to Wal-Mart was not sufficient to trigger the

tolling period as to anyone but Wal-Mart and, consequently, the regular

two-year statute applied. CR 95-102. Shortly following argument, the trial

court granted summary judgment to all defendants. CR 103. Kovaly timely

filed a Motion for New Trial (CR 104-107) and subsequently appealed. CR

108-109.

SUMMARY OF THE ARGUMENT

Pre-suit notice is not a sacred cow. The actual notice that is needed

for a defendant to have sufficient information to decide whether to

negotiate a settlement or opt in for litigation is not the same as the

constructive notice that serves to toll limitations under the Medical

4 Liability Act. Settled Texas Supreme Court precedent establishes that the

latter requires only notice sent to one party to toll limitations as to every

party and potential party. Notice as to one equals tolling as to all. The

remedy for the healthcare provider who does not receive pre-suit notice is

abatement, not summary judgment. Texas law recognizes that, while an

opportunity to evaluate a claim before filing an appearance is laudable

policy, that policy gives way when effective and efficient judicial

administration calls for a uniform limitations period and an opportunity to

evaluate a case on its genuine merits. The trial court’s Order erroneously

ignores the rule set by the Texas Supreme Court. That Order should be

reversed.

ARGUMENT

I. The Standard of Review

Texas appellate courts review summary judgments under a de novo

standard. Provident Life & Accident Ins. v. Knott, 128 S.W.3d 211, 215 (Tex.

2003). The party moving for summary judgment is charged with proving

that there are no material issues of fact and that it is entitled to judgment as

a matter of law. TEX. R. CIV. P. 166a(c). The case at bar presents a pure

legal issue for the Court to decide

5 II. Kovaly’s cause of action accrued, at the earliest, on August 30, 2012.

A defendant moving for summary judgment on the affirmative

defense of limitations must prove conclusively the elements of that

defense. Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 646 (Tex. 2000).

This includes proving when the plaintiff’s cause of action accrued.

Diversicare Gen. Ptnr., Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). TEX.

CIV. PRAC. & REM. CODE § 74.251(a) “measures the limitations period for

medical negligence from one of three dates: (1) the occurrence of the

breach or tort, (2) the last date of the relevant course of treatment, or (3) the

last date of the relevant hospitalization.” Shah v. Moss, 67 S.W.3d 836, 841

(Tex. 2001) (interpreting predecessor statute).

All Defendants and Kovaly agreed before the trial court that Kovaly’s

cause of action accrued no earlier than August 30, 2012. CR 24; 39. This

date meets, arguably, all three of § 74.251(a)’s measures. It is the date

Kovaly was discharged from Houston Northwest Medical Center. It is the

date he received the deficient prescriptions from the Defendants. And it is,

again arguably, the last date of the relevant course of treatment.

6 III. The Medical Liability Act’s limitations period is two years—plus 75 days where pre-suit notice is given.

The Medical Liability Act provides a limitations period of two years

from the date of accrual. TEX. CIV. PRAC. & REM. CODE § 74.251(a).

1. The Medical Liability Act’s tolling provision.

The real crux of the Defendant’s summary judgment motions and the

trial court’s ruling on them is the applicability of TEX. CIV. PRAC. & REM.

CODE § 74.051(c)’s tolling provision. Sec. 74.051(a) requires that any person

or his authorized agent asserting a health care liability claim must give

written notice of the claim by certified mail to each physician or health care

provider against whom the claim is being made at least 60 days before

filing suit. See TEX. CIV. PRAC. & REM. CODE § 74.051(a). The notice must be

accompanied by a medical authorization in the form specified by TEX. CIV.

PRAC. & REM. CODE § 74.052(a). Service of the notice required by § 74.051

and the authorization required by § 74.052, accomplished within the

limitations period, tolls the applicable limitations period for 75 days. TEX.

CIV. PRAC. & REM. CODE § 74.051(c); Thompson v. Community Health Inv., 923

S.W.2d 569 (Tex. 1996).

7 a. “Tolling” and “notice” are not the same thing.

“Notice” is given to the party who receives a notice letter. In

contrast, “tolling” applies to the health care provider who receives the

notice and authorization and also applies to “all parties and potential

parties,” as well. TEX. CIV. PRAC. & REM. CODE § 74.051(c); 923 S.W.2d, at

571. In short, once tolling is accomplished with respect to one party, it is

accomplished with respect to every party and every potential party. De

Checa v. Diagnostic Ctr. Hosp., 852 S.W.2d 935, 938 (Tex. 1993) (“[N]otice to

one serves to toll the limitations period for all.”). See also Sewell v. Adams,

854 S.W.2d 257, 261 (Tex. App.—Houston [14th Dist.] 1993, no writ) (“When

notice is sent to any health care provider within two years of the claim's

accrual, the limitations period for all defendants is tolled for seventy-five

days.”). “Proper presuit notice provided by the claimant within this initial

two-year period tolls the two-year limitations period for 75 days not only

as to the health care provider who actually received the notice before

limitations ran, but ‘to all parties and potential parties’ as well. After the

expiration of 75 days, the remaining portion of the limitations period

continues to run.” Thompson v. Community Health Inv., 923 S.W.2d, at 571.

8 b. Under De Checa, notice given to one party tolls limitations as to all potential parties including those who do not receive notice.

In De Checa, the Texas Supreme Court set out a timeline of significant

events. 852 S.W.2d, at 937, n. 3. It noted that the plaintiff’s limitations

period began to run on September 25, 1986. Id. It noted two dates within

the limitations period where the plaintiff gave notice of the claim to two

health care providers who were not ultimately involved in the appeal. Id.

Then it noted the close of the limitations period on September 25, 1988. Id.

And it recited the notification of the defendant physicians—Drs. Davis,

Burbridge, and Burnazian—who were involved in the appeal; notification

that came over two years after accrual of the cause of action, but less than

two years and 75 days from that accrual. Id. Finally, the Court noted that

the plaintiffs filed suit against the defendant physicians—Davis, Burbridge,

and Burnazian—within two years and seventy-five days from accrual of

the cause of action. Id. The Court observed that the plaintiffs “served

presuit notice of their claim on other health care providers who are not

involved in this proceeding within two years of accrual. They served

presuit notice on the [defendants in that suit] within two years and

seventy-five days.” 852 S.W.2d, at 937.

9 The plaintiffs/appellants in De Checa argued that the notice of the

claim they sent to other defendants within the limitations period operated,

not as notice to Drs. Davis, Burbridge, and Burnazian, but to invoke the

medical liability statute’s tolling provision. Id. In response, the

defendants/appellees asserted the same argument that the Defendants

asserted in the trial court. They argued that, when a health care provider is

served with notice of a claim, the tolling period extends only to the

recipient of the notice. The Texas Supreme Court rejected the argument of

Drs. Davis, Burbridge, and Burnazian over twenty years ago, and the

argument has not gained credence with age. Indeed, it has been steadily

rejected. Parrish v. Brooks, 856 S.W.2d 522, 527 (Tex. App.—Texarkana 1993,

no writ); Rabatin v. Vazquez, 281 S.W.3d 563, 567 (Tex. App.—El Paso 2008,

no pet); Sewell, 854 S.W.2d, at 261. As the Texas Supreme Court held over

twenty years ago: “notice to one serves to toll the limitations period for

all.” De Checa, 852 S.W.2d, at 937.

2. Notice to Wal-Mart Stores Texas tolled limitations as to Drs. Eni and Kuruvanka.

Kovaly does not suggest that notice to one party provides notice to

every party, only that—as the Texas Supreme Court and Texas appellate

10 courts have held—notice to one party provides tolling as to all. See, e.g., 852

S.W.2d, at 937. Kovaly’s suit against Wal-Mart Stores Texas arose from the

same facts as the instant suit, and his pre-suit notice provided entirely

adequate notice to Wal-Mart. CR 82-85. This was sufficient to toll

limitations for 75 days as to both Wal-Mart and all other “potential

parties,” including the Defendants, herein. See TEX. CIV. PRAC. & REM. CODE

§ 74.051(c).

Where tolling is not at issue—and the Texas Supreme Court’s holding

in De Checa demonstrates that, here, it is not—a defendant’s remedy, in the

event that it has not received an appropriate authorization to obtain

healthcare information, is abatement, not summary judgment. See TEX. CIV.

PRAC. & REM. CODE § 74.052(a) (failure to provide authorization along with

notice of claim abates further proceedings until 60 days following receipt of

the required authorization); Mitchell v. The Methodist Hospital, 376 S.W.3d

833, 839 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (“[T]he

abatement has a use in situations in which the tolling provision is not at

issue.”). 2

2 Both sets of defendants/appellees cited Mitchell in their summary judgment motions. Notably, nowhere in Mitchell is there any suggestion that any party was

11 Both Motions for summary judgment argued that the statutorily

required authorization provided by Kovaly was insufficient because it

allowed only Wal-Mart access to his records. CR 25-26. Therefore, they

argue, it is insufficient because it did not provide these defendants with

authorization to obtain Kovaly’s medical records. Id. But the question is not

whether the authorization was adequate for them, but whether it was

adequate for Wal-Mart. Once adequate notice and authorization are served

on one party—and even Drs. Eni and Kuruvanka appeared to acknowledge

that this occurred—tolling occurs as to all parties and potential parties,

even if others have received no notice, adequate or not. De Checa, 852

S.W.2d, at 938.

3. The Appellees argued before the trial court that the opportunity for pre-suit evaluation and settlement negotiation is a significant policy consideration. But it is not the only pertinent consideration.

The physician defendants argued with some force that the purpose of

pre-suit notice is to allow a healthcare provider to obtain medical records

and evaluate a potential claim before suit is ever filed. CR 26. There is no

timely served with notice and an appropriate medical authorization form. Indeed, the Court specifically noted that the only notice letter sent by the Mitchell plaintiffs—to defendant The Methodist Hospital—included an authorization that was not in the form prescribed by TEX. CIV. PRAC. & REM. CODE § 74.052. 376 S.W.3d, at 834. Consequently, § 74.051(c)’s tolling provision was never invoked. It is a critical distinction.

12 question that this is a goal of the Medical Liability Act’s notice provision.

See, generally, TEX. CIV. PRAC. & REM. CODE § 74.051. But this policy

consideration gives way to other considerations, where necessary. As the

Texas Supreme Court observed in De Checa, “Our legislature intended to

enact a strict and predictable limitations period.” 852 S.W.2d, at 938. The

Court observed that parsing limitations periods depending on who

received timely notice and who did not would undermine this legislative

intent. Id. But this is exactly what was suggested by the Appellees before

the trial court and exactly what the trial court accepted. According to the

Appellees’ reading of the law, the limitations period applicable to Wal-

Mart is different than the limitations period applicable to Drs. Eni and

Kuruvanka, despite all claims against all parties arising out of substantially

the same transaction, arising within a single 24-hour period, and resulting

in the same claimed damages.

4. The policy preference for pre-suit evaluation gives way to other considerations.

Before the trial court, the Drs. Eni and Kuruvanka leaned heavily on

the case of Carreras v. Marroquin, 339 S.W.3d 68 (Tex. 2011). In that case, the

Texas Supreme Court held that a pre-suit notice letter that did not include

13 the statutorily required medical authorization form did not trigger the

tolling provision of TEX. CIV. PRAC. & REM. CODE § 74.051(c). From this, the

Appellees concluded that all parties and potential parties must receive a

pre-suit medical authorization for the tolling to be effective as to them,

even as they confessed that their argument has never been accepted by any

Texas court. CR 97.

But pre-suit evaluation of claims is not the sacred cow that the

Appellees argued before the trial court. De Checa recognized that, under

exigent circumstances, a plaintiff may be required to file suit before the

sixty day pre-suit notice period elapses. 852 S.W.2d, at 938. In such

instances, abatement—not summary judgment—is the available remedy.

The failure to serve a particular health care provider with notice—as

distinguished from a failure to serve any health care provider—results only

in abatement as to that defendant. Id.

Moreover, at least one Texas court of appeals has recently held that

“providing” notice within the meaning of § 74.051(c) does not mean that a

notice letter even need be received to allow tolling of limitations. See

College Station Med. Ctr. v. Kilaspa, No. 10-14-00374-CV, 2015 Tex. App.

LEXIS 7618 (Tex. App.—Waco Jul. 23, 2015, n.p.h.). In Kilaspa, the plaintiffs

14 filed suit against a physician defendant and the Medical Center defendant

outside the two-year limitations period of § 74.251(a), but within the extend

limitations period. The defendants moved for summary judgment on the

ground of limitations, arguing that neither received the statutory notice

letter and, thus, the tolling provision of § 74.051(c) was never triggered.

The plaintiffs admitted that they had sent no notice at all to the Medical

Center defendant but argued that the tolling provision was nevertheless

invoked because they timely mailed a sufficient notice to the physician

defendant, even though it was never received. They argued that the notice

was effective to toll limitations even if unclaimed or undelivered.

A majority of the Waco court held that § 74.051 does not require a

plaintiff to ensure that a defendant actually receives notice. Consequently,

summary judgment for the physician defendant—to whom notice was sent,

but never received—was improper. But, more significantly for this case,

the Court also held that summary judgment for the Medical Center

defendant—to whom notice was never even sent—was unsupportable. As

long as appropriate notice was sent—meaning written notice of the claim

via certified mail, return receipt requested, sent within the two-year

limitations period—the limitations period was tolled as to both defendants,

15 the one to which notice was sent and the one to which no notice was sent.

Once again, pre-suit evaluation gives way to greater considerations of

uniformity of limitations periods and allowing claims to go forward and

have their merits reached.

IV. Kovaly gave notice to a defendant within two years and filed the instant suit within the extended limitations period, and the trial court’s granting summary judgment on the basis of limitations was, therefore, erroneous.

On July 23, 2013, less than one year after his cause of action accrued,

Kovaly, through his attorneys, sent pre-suit notice and a health care

authorization to Wal-Mart Stores Texas, LLC. CR 82-85. Thus, Kovaly

served notice and an authorization on a healthcare provider well within the

two-year limitations period and began the 75-day tolling period. See De

Checa, 852 S.W.2d, at 938. After that 75 days expired, limitations began to

run again. Thompson, 923 S.W.2d, at 571 (“After the expiration of 75 days,

the remaining portion of the limitations period continues to run.”). On

Tuesday, November 11, 2014, Kovaly filed the instant suit. Under the

extended limitations period—that is, the two-year period provided by TEX.

CIV. PRAC. & REM. CODE § 74.251(a) plus the 75-day tolling period provided

by TEX. CIV. PRAC. & REM. CODE § 74.051(c)—the limitations period ended

16 on Thursday, November 13, 2014. Thus, Kovaly filed his suit within the

extended limitations period.

The trial court’s Order stands for the prospect that the 75-day tolling

provision of TEX. CIV. PRAC. & REM. CODE § 74.051(c) was never triggered.

It can be read no other way. And as such, it flies directly in the face of the

Texas Supreme Court’s holding in De Checa. It is erroneous, per se, and

merits reversal.

CONCLUSION

Tolling and notice are not synonymous, and they do not go hand in

hand. Although the Appellees argued in the trial court that the law has

changed, the Texas Supreme Court’s precedent has not. De Checa—as

established law—still governs this case and mandates reversal of the trial

court’s summary judgment Order. De Checa states clearly that the policy

behind pre-suit notice is not untouchable. It gives way where necessary to

maintain uniformity of law within the case and reach the merits of a claim.

While the Appellees make much of the changes to the law that took

place in 2003 and post-date De Checa, no Texas court has, to date, accepted

their arguments, and the Waco court very recently appears to have rejected

them in Kilaspa. That ruling is wholly inconsistent with the Appellees’

17 position before the trial court. Moreover, it is not for trial courts to buck

the established holdings of the Texas Supreme Court. Even the Appellees

appear to acknowledge that the facts and holding of De Checa are

applicable to the facts at bar. When the Texas Supreme Court overrules De

Checa, the trial court need no longer observe it. Until that happens, De

Checa is still law.

PRAYER

For the foregoing reasons, Appellant Shan Kovaly respectfully

requests that the trial court’s Order granting summary judgment to

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

and to Tulsidas Kuruvanka, M.D., and Northwest Houston Cardiology,

P.A., be reversed and that this case be remanded for further proceedings.

18 Respectfully submitted,

SIMPSON, P.C.

/s/ Iain G. Simpson ______________________________ Iain G. Simpson State Bar No. 00791667 1333 Heights Boulevard, Suite 102 Houston, Texas 77008 (281) 989-0742 (281) 596-6960 (fax) iain@simpsonpc.com

APPELLATE COUNSEL FOR SHAN KOVALY

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing Appellant’s Brief is computer- generated, that those portions required to be counted by Rule 9.4(i)(1), Texas Rules of Appellate Procedure, contain 3,551 words according to the word-count function of the application used to create it, and that it complies with the word-count requirements of Rule 9.4, Texas Rules of Appellate Procedure. It is printed in 14-point typeface, except for the footnotes, which are in 12-point typeface.

/s/ Iain G. Simpson ______________________________ Iain G. Simpson

19 CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Appellant’s Brief was served this 17th day of September, 2015, via facsimile, hand delivery, electronic service, or certified U.S. Mail, on the following:

James B. Edwards Edwards & Stephens 12603 Southwest Freeway, Suite 200 Stafford, Texas 77477 (281) 277-4940 (281) 277-4974 – facsimile jbe@malpracticedefense.com

COUNSEL FOR TULSIDAS KURUVANKA, M.D., AND NORTHWEST HOUSTON CARDIOLOGY, P.A.

Joel Sprott Sprott, Newsom, Lunceford, et al. 2211 Norfolk, Suite 1150 Houston, Texas 77098 (713) 523-8338 (713) 523-9422 – facsimile sprott@sprottnewsom.com

Diana Faust Cooper & Scully, PC 900 Jackson Street, Suite 100 Dallas, Texas 75202 Diana.faust@cooperscully.com

COUNSEL FOR IKEDINOBI U. ENI, M.D.; IKEDINOBI U. ENI, M.D., P.A.; AND ENI HEALTH CARE

20 /s/ Iain G. Simpson ____________________________ Iain G. Simpson

21 APPENDIX 1 103 APPENDIX 2 Sec. 74.051. NOTICE. (a) Any person or his authorized agent asserting a health care liability claim shall give written notice of such claim by certified mail, return receipt requested, to each physician or health care provider against whom such claim is being made at least 60 days before the filing of a suit in any court of this state based upon a health care liability claim. The notice must be accompanied by the authorization form for release of protected health information as required under Section 74.052. (b) In such pleadings as are subsequently filed in any court, each party shall state that it has fully complied with the provisions of this section and Section 74.052 and shall provide such evidence thereof as the judge of the court may require to determine if the provisions of this chapter have been met. (c) Notice given as provided in this chapter shall toll the applicable statute of limitations to and including a period of 75 days following the giving of the notice, and this tolling shall apply to all parties and potential parties. (d) All parties shall be entitled to obtain complete and unaltered copies of the patient's medical records from any other party within 45 days from the date of receipt of a written request for such records; provided, however, that the receipt of a medical authorization in the form required by Section 74.052 executed by the claimant herein shall be considered compliance by the claimant with this subsection. (e) For the purposes of this section, and notwithstanding Chapter 159, Occupations Code, or any other law, a request for the medical records of a deceased person or a person who is incompetent shall be deemed to be valid if accompanied by an authorization in the form required by Section 74.052 signed by a parent, spouse, or adult child of the deceased or incompetent person.

Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1, 2003. APPENDIX 3 Sec. 74.052. AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION. (a) Notice of a health care claim under Section 74.051 must be accompanied by a medical authorization in the form specified by this section. Failure to provide this authorization along with the notice of health care claim shall abate all further proceedings against the physician or health care provider receiving the notice until 60 days following receipt by the physician or health care provider of the required authorization. (b) If the authorization required by this section is modified or revoked, the physician or health care provider to whom the authorization has been given shall have the option to abate all further proceedings until 60 days following receipt of a replacement authorization that must comply with the form specified by this section. (c) The medical authorization required by this section shall be in the following form and shall be construed in accordance with the "Standards for Privacy of Individually Identifiable Health Information" (45 C.F.R. Parts 160 and 164). AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION

A. I, __________ (name of patient or authorized representative), hereby authorize __________ (name of physician or other health care provider to whom the notice of health care claim is directed) to obtain and disclose (within the parameters set out below) the protected health information described below for the following specific purposes: 1. To facilitate the investigation and evaluation of the health care claim described in the accompanying Notice of Health Care Claim; or 2. Defense of any litigation arising out of the claim made the basis of the accompanying Notice of Health Care Claim. B. The health information to be obtained, used, or disclosed extends to and includes the verbal as well as the written and is specifically described as follows: 1. The health information in the custody of the following physicians or health care providers who have examined, evaluated, or treated __________ (patient) in connection with the injuries alleged to have been sustained in connection with the claim asserted in the accompanying Notice of Health Care Claim. (Here list the name and current address of all treating physicians or health care providers). This authorization shall extend to any additional physicians or health care providers that may in the future evaluate, examine, or treat __________ (patient) for injuries alleged in connection with the claim made the basis of the attached Notice of Health Care Claim; 2. The health information in the custody of the following physicians or health care providers who have examined, evaluated, or treated __________ (patient) during a period commencing five years prior to the incident made the basis of the accompanying Notice of Health Care Claim. (Here list the name and current address of such physicians or health care providers, if applicable.) C. Excluded Health Information--the following constitutes a list of physicians or health care providers possessing health care information concerning __________ (patient) to which this authorization does not apply because I contend that such health care information is not relevant to the damages being claimed or to the physical, mental, or emotional condition of __________ (patient) arising out of the claim made the basis of the accompanying Notice of Health Care Claim. (Here state "none" or list the name of each physician or health care provider to whom this authorization does not extend and the inclusive dates of examination, evaluation, or treatment to be withheld from disclosure.) D. The persons or class of persons to whom the health information of __________ (patient) will be disclosed or who will make use of said information are: 1. Any and all physicians or health care providers providing care or treatment to __________ (patient); 2. Any liability insurance entity providing liability insurance coverage or defense to any physician or health care provider to whom Notice of Health Care Claim has been given with regard to the care and treatment of __________ (patient); 3. Any consulting or testifying experts employed by or on behalf of __________ (name of physician or health care provider to whom Notice of Health Care Claim has been given) with regard to the matter set out in the Notice of Health Care Claim accompanying this authorization; 4. Any attorneys (including secretarial, clerical, or paralegal staff) employed by or on behalf of __________ (name of physician or health care provider to whom Notice of Health Care Claim has been given) with regard to the matter set out in the Notice of Health Care Claim accompanying this authorization; 5. Any trier of the law or facts relating to any suit filed seeking damages arising out of the medical care or treatment of __________ (patient). E. This authorization shall expire upon resolution of the claim asserted or at the conclusion of any litigation instituted in connection with the subject matter of the Notice of Health Care Claim accompanying this authorization, whichever occurs sooner. F. I understand that, without exception, I have the right to revoke this authorization in writing. I further understand the consequence of any such revocation as set out in Section 74.052, Civil Practice and Remedies Code. G. I understand that the signing of this authorization is not a condition for continued treatment, payment, enrollment, or eligibility for health plan benefits. H. I understand that information used or disclosed pursuant to this authorization may be subject to redisclosure by the recipient and may no longer be protected by federal HIPAA privacy regulations. Signature of Patient/Representative __________ Date __________ Name of Patient/Representative __________ Description of Representative's Authority __________

Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1, 2003. APPENDIX 4 Sec. 74.251. STATUTE OF LIMITATIONS ON HEALTH CARE LIABILITY CLAIMS. (a) Notwithstanding any other law and subject to Subsection (b), no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed; provided that, minors under the age of 12 years shall have until their 14th birthday in which to file, or have filed on their behalf, the claim. Except as herein provided this section applies to all persons regardless of minority or other legal disability. (b) A claimant must bring a health care liability claim not later than 10 years after the date of the act or omission that gives rise to the claim. This subsection is intended as a statute of repose so that all claims must be brought within 10 years or they are time barred.

Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept. 1, 2003.