Jeanne Cook v. Warren F. Neely, MD

ACCEPTED 04-14-00518-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 2/10/2015 3:00:35 PM KEITH HOTTLE CLERK

No. 04-14-00518 FILED IN 4th COURT OF APPEALS IN THE COURT OF APPEALS SAN ANTONIO, TEXAS 02/10/2015 3:00:35 PM FOURTH DISTRICT KEITH E. HOTTLE SAN ANTONIO, TEXAS Clerk

JEANNE COOK, Appellant,

v.

WARREN F. NEELY, M.D. Appellee.

On Appeal from the th 285 Judicial District, Bexar County, Texas

REPLY BRIEF OF APPELLANT

TO THE HONORABLE COURT OF APPEALS:

COMES NOW Appellant herein and Plaintiff below, JEANNE COOK, hereinafter referred to as “Cook,” and files this her Reply Brief in the above-entitled and -numbered cause.

REPLY BRIEF OF APPELLANT

ARGUMENT AND AUTHORITIES

At first blush, the Brief of Appellee Warren Neely (“Neely”) appears to state a compelling argument regarding the sweeping breadth and depth of the Texas Medical Liability Act (“TMLA”), vis-a-vis a line of cases which seem to resemble the instant proceeding – wherein the operative facts potentially give rise to both a “health care liability claim” (“HCLC”), and a fraud (or similar) claim. Neely cites authority-after-authority-after-authority, which seem to collectively echo a mantra of “Thou shalt not recast an HCLC into a fraud claim.” But a careful reading of the cited authorities reveals an inconvenient truth, and it is reflected in the following excerpt from the Brief of Appellee:

Texas law prevents Cook from recasting her HCLC into another cause of action, such as fraud, to avoid the requirements and limitations of Chapter 74. Diversicare, 185 S.W.3d at 851. In other words, Cook “....cannot use artful pleading to avoid the MLIIA’s requirements when the essence of the suit is a health care liability claim.”

Brief of Appellee, p. 15 (emphasis added)

Simply stated, the bolded portion above is the linchpin for Neely’s entire argument regarding the viability of Cook’s fraud claim, and this Reply Brief will demonstrate the undeniable collapse of the linchpin, pursuant to the unique facts presented by this case.

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As referenced above, Neely cites a litany of case law which purports to undermine the viability of a fraud claim like Cook’s, i.e., one that arises within a broader HCLC context. Moreover, Neely casually dismisses the opinions cited as primary authority by Cook, in her Appellant’s Brief, e.g., Sorokolit v. Rhodes, 889 S.W.2d 239 (Tex. 1994); Crundwell v. Becker, 981 S.W.2d 880 (Tex. App. – Houston [1st Dist.] 1998, pet. denied); Melissinos v. Phamanivong, 823 S.W.2d 339 (Tex. App. – Texarkana 1991, writ denied); Garcia v. Columbia Med. Ctr., 996 F. Supp. 605, 610 (E.D. Tex. 1998). Ruiz v. Walgreen Co., 79 S.W.3d 235, 239 (Tex. App. – Houston [14th Dist.] 2002, no pet.); Rogers v. Crossroads Nursing Serv., Inc., 13 S.W.3d 417, 419 (Tex. App. – Corpus Christi 1999, no pet.) (henceforth, collectively referred to as the Sorokolit line of cases). As discussed previously in Appellant’s Brief, all of these cases stand for the proposition that a fraud (or similar) claim is indeed viable in the context of an HCLC, yet Neely derisively labels them as (1) “outdated,” or at the very least (2) distinguishable.

In labeling these cases as “outdated,” Neely implies that the subsequent enactment of the TMLA, and/or the holding in subsequent cases such as Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005) (henceforth, referred to collectively as the “Diversicare line of cases”), somehow overrules the earlier

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precedent. Yet this implication is unfounded and unsupported, as Neely can cite to no authority which explicitly overturns this time-honored line of cases.

And rather than existing at-odds with one another, there is indeed a profound harmony among these authorities. As stated previously, the linchpin which creates the harmony is the qualification which appears throughout the entire Diversicare line of cases – these holdings are limited to cases wherein the plaintiff is attempting to avoid the requirements and limitations of the TMLA. Thus, the presence of this qualification begs the question as to what is the meaning of the phrase “requirements and limitations.” A careful review of the provisions of Chapter 74 reveals a multitude of procedural requirements including, inter alia, notice requirements, expert-report requirements, prescribed forms, discovery procedure, and so on. See, e.g. T EX. CIV. P RAC. & REM. CODE §§74.051; 74.052, 74.053; 74.351; 74.352; 74.401; 74.403. Moreover, limitations in the form of damage caps, as well as a statute of limitations, are included. See, e.g. T EX. CIV. P RAC. & REM. CODE §74.251; Subchapter G. Yet nowhere within the text of Chapter 74 is there an explicit proscription against fraud (or similar) claims, in the context of an HCLC.

Having established what constitutes the “requirements and limitations” of the TMLA, the analysis necessarily shifts to an examination of whether Cook’s fraud

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claim is merely an artfully pleaded end-around, designed to circumvent these requirements and limitations. Yet this Court need look no further than the fact that Cook’s abidance with the TMLA requirements and limitations were never challenged by Neely. Indeed, Neely has failed to pinpoint any specific TMLA requirement or limitation which was effectively usurped or preempted by way of Cook’s fraud claim. A blanket statement regarding Cook’s avoidance of the TMLA by way of her fraud claim, without support, is legally insufficient.

Surprisingly, Cook generally agrees with one of Neely’s arguments – the lines of cases cited by the respective parties are indeed distinguishable. However, it is the Diversicare line of cases which is so factually distinguishable that they have no precedential value in this proceeding. To wit, each and every opinion within the Diversicare line of cases – without fail – involves a pre-trial challenge to the plaintiff’s abidance with one or more of the TMLA requirements and limitations. See Diversicare Gen. Partners, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005); Tex. West Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171 (Tex. 2012); Yamada, M.D. v. Friend, 355 S.W.3d 192 (Tex. 2010); Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012); Saleh v. Hollinger, 335 S.W.3d 368 (Tex. App. – Dallas 2011, no pet. hx); Lee v. Boothe, 235 S.W.3d 448 (Tex. App. – Dallas 2007, pet.

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denied); Perry v. Samuels, 307 S.W.3d 826, 828 (Tex. App. – Dallas 2010, no pet.); Turtle Healthcare Group, L.L.C. v. Linan, 337 S.W.3d 865 (Tex. 2011); Harris Meth. Ft. Worth v. Ollie, 342 S.W.3d 525 (Tex. 2011); Harris Meth. Ft. Worth v. Ollie, 342 S.W.3d 525 (Tex. 2011); Omaha Healthcare Center, L.L.C. v. Johnson, 344 S.W.3d 392 (Tex. 2011). The entirety of the Diversicare line of cases, revolves around either (1) a plaintiff whose expert report does not pass muster under the TMLA, or (2) a plaintiff whose statute of limitations has expired – defects which were challenged and adjudicated pre-trial. Accordingly, with the demise of their HCLC claim, the plaintiffs in this Diversicare line of cases have no choice but to try and bootstrap their way into a viable claim – by recasting their HCLC as a fraud (or similar) claim. These claims were dismissed, and justifiably so, as improper attempts to circumvent the requirements and limitations of the TMLA.

But it cannot be overstated that Cook never attempted to circumvent the requirements and limitations of the TMLA, as her abidance therewith was never challenged. To wit, the record is devoid of a challenge to the adequacy of Cook’s expert report, as Neely never even filed an objection thereto. And it is this truth – inconvenient as it is for Neely – which distinguishes Cook’s claim from the Diversicare line of cases. Moreover, it is this inconvenient truth which places her

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squarely within the ambit of the Sorokolit line of cases – and thereby creates a viable claim as more fully discussed in Appellant’s Brief. Evidence of Fraud

Finally, Neely’s arguments regarding Cook’s alleged failure to produce sufficient evidence of fraud is belied by the bevy of evidence cited in Appellant’s Brief, and they do not merit an extensive reply. The evidence cited in Appellant’s Brief is probative of multiple misrepresentations of fact – by both commission and omission – upon which Cook relied to her detriment. Said evidence is thoroughly cited in the tables appearing in Appellant’s Brief on pages 16-20.

PRAYER

WHEREFORE, Cook respectfully prays that her appeal be granted; that the verdict be set aside and reversed; and that the case be remanded for further proceedings in the trial court, to include a jury trial de novo. Cook further prays that costs be taxed against Appellee and that Cook be granted such additional relief, at law or in equity, to which she may be entitled.

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Respectfully submitted,

DREYER & MAZAHERI, PLLC 111 Soledad, Suite 110 San Antonio, Texas 78205 Telephone: (210) 472-1400 Facsimile: (210) 472-1404

By: /s/ DAIN A. DREYER State Bar No. 00793639

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing instrument will be sent via fax transmission to opposing counsel on this the 10th day of February, 2014.

/s/ DAIN A. DREYER

REPLY BRIEF OF APPELLANT