                                                                                ACCEPTED
                                                                           04-14-00803-CV
                                                                FOURTH COURT OF APPEALS
                                                                     SAN ANTONIO, TEXAS
                                                                       2/9/2015 5:07:05 PM
                                                                             KEITH HOTTLE
                                                                                    CLERK




              ORAL ARGUMENT REQUESTED                       FILED IN
                                                     4th COURT OF APPEALS
                                                      SAN ANTONIO, TEXAS
                     NO. 04-14-00803-CV
                                                     02/9/2015 5:07:05 PM
                                                       KEITH E. HOTTLE
                                                             Clerk
               IN THE COURT OF APPEALS
FOR THE FOURTH DISTRICT OF TEXAS AT SAN ANTONIO, TEXAS


    JUAN FRANCISCO MONTALVO, M.D., F.A.C.O.G., ET AL.,
                      Appellants
                             v.
                     GABRIELA LOPEZ,
                         Appellee.


            On Appeal from the 341st District Court
       Webb County, Texas, Cause No. 2013CVT 000841-D3
                     (Hon. Beckie Palomo)


                  BRIEF OF APPELLANTS


                           Respectfully submitted,
                           DIANA L. FAUST
                           diana.faust@cooperscully.com
                           Texas Bar No. 00793717
                           R. BRENT COOPER
                           brent.cooper@cooperscully.com
                           Texas Bar No. 04783250
                           KYLE M. BURKE
                           kyle.burke@cooperscully.com
                           Texas Bar No. 24073089
                           COOPER & SCULLY, P.C.
                           900 Jackson Street, Suite 100
                           Dallas, Texas 75202
                           TEL: (214) 712-9500
                           FAX: (214) 712-9540

                           COUNSEL FOR APPELLANTS
                              NO. 04-14-00803-CV


                IN THE COURT OF APPEALS
 FOR THE FOURTH DISTRICT OF TEXAS AT SAN ANTONIO, TEXAS


       JUAN FRANCISCO MONTALVO, M.D., F.A.C.O.G., ET AL.,
                         Appellants

                                        v.

                              GABRIELA LOPEZ,
                                  Appellee.


                 On Appeal from the 341st District Court
            Webb County, Texas, Cause No. 2013CVT 000841-D3
                          (Hon. Beckie Palomo)


                  IDENTITY OF PARTIES AND COUNSEL


      In accordance with rule 38.1(a) of the Texas Rules of Appellate Procedure,

the following is a list of names and addresses of the parties to the trial court’s

judgment and their counsel:

      Appellants:                    Juan Francisco Montalvo, M.D.,
                                     Winder N. Vasquez, M.D., Miguel
                                     E. Najera, J.D. Executor of the
                                     Estate of Miguel E. Najera, M.D.
                                     And Laredo Regional Medical
                                     Center, L.P. d/b/a Doctors Hospital
                                     of Laredo




                                        i
Appellate Counsel
for Appellants:       Diana L. Faust
                      R. Brent Cooper
                      Kyle M. Burke
                      Cooper & Scully, P.C.
                      900 Jackson Street, Suite 100
                      Dallas, Texas 75202

Trial Counsel for
Appellant Montalvo:   James Kevin Oncken
                      Roger A. Berger
                      Uzick & Oncken, P.C.
                      238 Westcott Street
                      Houston, Texas 77007

Trial Counsel for
Appellant Vasquez:    Bruce E. Anderson
                      James W. Veale, Jr.
                      Loren L. Whyte
                      Brin & Brin, P.C.
                      5223 IH 10 West

Trial Counsel for
Appellant Najera:     W. Richard Wagner
                      Peter Cario
                      Wagner Cario, L.L.P.
                      7718 Broadway, Suite 100
                      San Antonio, Texas 78209

Trial Counsel for
Appellant Doctors
Hospital of Laredo:   Steven M. Gonzalez
                      Edward J. Castillo
                      Gonzalez Castillo, L.L.P.
                      1317 E. Quebec Avenue
                      McAllen, Texas 78503

Appellee:             Gabriela Lopez




                        ii
Trial and Appellate
Counsel for Appellee:   Darrell L. Keith
                        Keith Law Firm, P.C.
                        301 Commerce Street, Suite 2850
                        Fort Worth, Texas 76102




                          iii
                               NO. 04-14-00803-CV


                IN THE COURT OF APPEALS
 FOR THE FOURTH DISTRICT OF TEXAS AT SAN ANTONIO, TEXAS


        JUAN FRANCISCO MONTALVO, M.D., F.A.C.O.G., ET AL.,
                          Appellants

                                         v.

                              GABRIELA LOPEZ,
                                  Appellee.


                  On Appeal from the 341st District Court
             Webb County, Texas, Cause No. 2013CVT 000841-D3
                           (Hon. Beckie Palomo)


                     REQUEST FOR ORAL ARGUMENT


      Appellants Francisco Montalvo, M.D., F.A.C.O.G., Winder N. Vasquez,

M.D., Miguel E. Najera, J.D. Executor of the Estate of Miguel E. Najera, M.D.,

Deceased, and Laredo Regional Medical Center, L.P. d/b/a Doctors Hospital of

Laredo respectfully request oral argument in this case and believe it will help the

Court in evaluating the case and resolving this appeal. TEX. R. APP. P. 39.1, 39.7.




                                         iv
                                     TABLE OF CONTENTS

                                                                                                           Page

IDENTITY OF PARTIES AND COUNSEL .......................................................... i

REQUEST FOR ORAL ARGUMENT ................................................................. iv

TABLE OF CONTENTS........................................................................................v

TABLE OF AUTHORITIES ............................................................................... vii

STATEMENT OF THE CASE ............................................................................ xii

STATEMENT OF THE JURISDICTION........................................................... xiii

ISSUES PRESENTED..........................................................................................xv

STATEMENT OF FACTS .....................................................................................1

        A.      Appellee’s Allegations........................................................................1

        B.      Theories of Liability ...........................................................................3

        C.      Appellants File Motions for Summary Judgment ................................4

        D.      Proceedings After Trial Court Denied Appellants’ Motions for
                Summary Judgment ............................................................................5

        E.      Appellants’ Petition for Permission to Appeal Interlocutory
                Order in this Court ..............................................................................7

SUMMARY OF THE ARGUMENT ......................................................................7

ARGUMENT AND AUTHORITIES .....................................................................9

I.      Appellee’s Suit Is Barred by Limitations ......................................................9

        A.      Standard of Review.............................................................................9

        B.      Appellee’s Claims Are Barred by the Statute of Limitations in
                Section 74.251(a)..............................................................................10

                                                       v
       C.      Section 74.251(a) Not Unconstitutional ............................................12

       D.      Even if Sections 16.001 and 16.003 Apply, Lopez’s Claims Are
               Barred by Limitations .......................................................................19

CONCLUSION & PRAYER ................................................................................26

CERTIFICATE OF COMPLIANCE ....................................................................28

CERTIFICATE OF SERVICE..............................................................................29

APPENDIX TO BRIEF OF APPELLANTS.........................................................31




                                                    vi
                                  TABLE OF AUTHORITIES

Case                                                                                              Page(s)

Adams v. Gottwald,
  179 S.W.3d 101 (Tex. App.—San Antonio 2005, pet. denied)....................15, 19

Boyd v. Kallam,
  152 S.W.3d 670 (Tex. App.—Fort Worth 2004, pet. denied) ........................... 13

City of San Antonio v. Hernandez,
  53 S.W.3d 404 (Tex. App.—San Antonio 2001, pet. denied)........................... 10

Lund. v. Giauque,
  416 S.W.3d 122 (Tex. App.—Fort Worth 2013, no pet.).................................. 13

Jose Carreras, M.D., P.A. v. Marroquin,
  339 S.W.3d 68 (Tex. 2011).........................................................................20, 23

Kimbrell v. Molinet,
  288 S.W.3d 464 (Tex. App.—San Antonio 2008),
  aff'd, 356 S.W.3d 407 (Tex. 2011) ................................................................... 11

Lebohm v. City of Galveston,
  154 Tex. 192, 275 S.W.2d 951 (1955) ............................................................. 14

Loram Maint. of Way, Inc. v. Ianni,
  210 S.W.3d 593 (Tex. 2006) ............................................................................ 19

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
 289 S.W.3d 844 (Tex. 2009) .............................................................................. 9

Medina v. Lopez-Roman,
 49 S.W.3d 393 (Tex. App.—Austin 2000, pet. denied) ...............................21, 22

Methodist Healthcare Sys. of San Antonio, Ltd., L.L.P. v. Rankin,
 307 S.W.3d 283 (Tex. 2010) .......................................................................12, 18

Nolan v. Hughes,
  349 S.W.3d 209 (Tex. App.—Dallas 2011, no pet.) ......................................... 10



                                                    vii
Robinson v. Crown Cork & Seal Co.,
  335 S.W.3d 126 (Tex. 2010) ............................................................................ 12

Safeco Lloyds Ins. Co. v. Allstate Ins. Co.,
  308 S.W.3d 49 (Tex. App.—San Antonio 2009, no pet.) ................................... 9

Sax v. Votteler,
  648 S.W.2d 661 (Tex. 1983) ............................................................................ 24

Schepps v. Presbyterian Hosp. of Dallas,
  652 S.W.2d 934 (Tex. 1983) ............................................................................ 23

Shah v. Moss,
  67 S.W.3d 836 (Tex. 2001)...................................................................10, 11, 25

Smith v. Davis,
  426 S.W.2d 827 (Tex. 1968) ............................................................................ 12

Tenet Hosps. Ltd. v. Rivera,
  445 S.W.3d 698 (Tex. 2014) ..................................................... 12, 13, 14, 18, 19

Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex.,
  253 S.W.3d 184 (Tex. 2007) .........................................................................9, 10

Tex. Nat'l Guard Armory Bd. v. McCraw,
  132 Tex. 613, 126 S.W.2d 627 (1939) ............................................................. 12

Texas W. Oaks Hosp., LP v. Williams,
  371 S.W.3d 171 (Tex. 2012) ............................................................................ 21

Thomas v. Oldham,
  895 S.W.2d 352 (Tex. 1995) ............................................................................ 13

Weiner v. Wasson,
 900 S.W.2d 316 (Tex. 1995) ........................................................... 14, 15, 18, 20

Yancy v. United Surgical Partners Int'l, Inc.,
  236 S.W.3d 778 (Tex. 2007) ............................................................................ 13

Zweig v. S. Texas Cardiothoracic & Vascular Surgical Associates, PLLC,
  373 S.W.3d 605 (Tex. App.—San Antonio 2012, no pet.) ............................... 11


                                                    viii
Statutes                                                                                                   Page(s)

TEX. CIV. PRAC. & REM. CODE § 16.001 .............................................................. 15

TEX. CIV. PRAC. & REM. CODE § 16.001(a) .......................................................... 14

TEX. CIV. PRAC. & REM. CODE § 16.001(b).......................................................... 14

TEX. CIV. PRAC. & REM. CODE § 16.003 .............................................................. 15

TEX. CIV. PRAC. & REM. CODE § 16.003(a) .......................................................... 14

TEX. CIV. PRAC. & REM. CODE § 74.051(a) .......................................................... 20

TEX. CIV. PRAC. & REM. CODE § 74.051(c) .......................................................... 20

TEX. CIV. PRAC. & REM. CODE § 74.052(a) .......................................................... 23

TEX. CIV. PRAC. & REM. CODE § 74.251(a) ........................................... 9, 11, 24, 25

TEX. CIV. PRAC. & REM. CODE § 51.014(d) (Vernon 2011)............................. xiii, 7

TEX. CIV. PRAC. & REM. CODE § 51.014(f) (Vernon 2011)....................... xiii, xiv, 7

TEX. REV. CIV. STAT. ANN. art. 4590i, § 4.01(c) .................................................. 24

TEX. REV. CIV. STAT. ANN. art. 4590i, § 10.01................................................24, 25

Rules                                                                                                      Page(s)

TEX. CONST. art. I, § 13........................................................................................ 13

TEX. R. APP. P. 39.1 .............................................................................................. iv

TEX. R. APP. P. 39.7 .............................................................................................. iv

TEX. R. APP. P. 56.1(b)(1) .................................................................................... 19

Other                                                                                                      Page(s)

Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 4.01(c),
  1977 Tex. Gen. Laws 2039, 2047..................................................................... 24


                                                         ix
Act of June 2, 2003, 78th Leg., R.S., ch. 204, 2003 Tex. Gen. Laws 847............. 15

Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01,
  2003 Tex. Gen. Laws 847 ................................................................................ 16

Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09,
  2003 Tex. Gen. Laws 847 ................................................................................ 25

Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11,
  2003 Tex. Gen. Laws 847 .....................................................................16, 17, 18




                                                     x
                              NO. 04-14-00803-CV


                IN THE COURT OF APPEALS
 FOR THE FOURTH DISTRICT OF TEXAS AT SAN ANTONIO, TEXAS


       JUAN FRANCISCO MONTALVO, M.D., F.A.C.O.G., ET AL.,
                         Appellants
                                        v.
                              GABRIELA LOPEZ,
                                  Appellee.


                  On Appeal from the 341st District Court
             Webb County, Texas, Cause No. 2013CVT 000841-D3
                           (Hon. Beckie Palomo)


                           BRIEF OF APPELLANTS


TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF
APPEALS:

      Appellants Francisco Montalvo, M.D., F.A.C.O.G. (“Dr. Montalvo”),

Winder N. Vasquez, M.D. (“Dr. Vasquez”), Miguel E. Najera, J.D. Executor of the

Estate of Miguel E. Najera, M.D., Deceased (“Dr. Najera”), and Laredo Regional

Medical Center, L.P. d/b/a Doctors Hospital of Laredo (“DHL”), (collectively

“Appellants”) submit this Brief of Appellants in accordance with Rules 9.4 and 38

of the Texas Rules of Appellate Procedure and all local rules of this Court. In

support of this appeal from the denial of Appellants’ motions for summary

judgment, Appellants respectfully allege as follows:

                                        xi
                            STATEMENT OF THE CASE

       On May 17, 2013, Gabriela Lopez (“Ms. Lopez” or “Appellee”) filed this

health care liability claim against Juan Francisco Montalvo, M.D., F.A.C.O.G.

(“Dr. Montalvo”), Winder N. Vasquez, M.D. (“Dr. Vasquez”), Miguel E. Najera,

J.D. Executor of the Estate of Miguel E. Najera, M.D., Deceased (“Dr. Najera”),

Laredo Regional Medical Center, L.P. d/b/a Doctors Hospital of Laredo (“DHL”),

(collectively “Appellants”), and various other Defendants, alleging that Appellants

were negligent in their care and treatment of Appellee on or about December 11,

2005 to December 17, 2005. (CR 27).1 Appellee asserted negligence and gross

negligence claims against Appellants and vicarious liability claims against DHL.

(CR 33-46). Appellee amended her petition on November 5, 2013, and January 27,

2014, to include responses and/or counter defenses to Appellants’ alleged

affirmative defenses or theories. (CR 267-271, 453-460).

       On July 30, 2013, Appellant Vasquez filed his Traditional Motion for

Summary Judgment (CR 77-82), followed by Appellants Montalvo, Najera, and

DHL on August 21, 22, and 27, 2013, respectively (CR 105-110, 119-124, 174-

183), on the grounds that Appellee’s claims are barred by the statute of limitations.

(Id.). Appellee filed responses to the motions (CR 277-286, 334-355, 356-363,

484-500), and supplemental responses.              (CR 464-474, 563-578).            Several

1
        Appellants will refer to the Clerk’s Record as (CR [page #]), the Reporter’s Record as
([vol. #] RR [page #]), and the Appendix as (Apx. [Tab #]).


                                             xii
Appellants filed replies. (CR 420-425, 557-562, 579-584). The district court held

a hearing on Appellants’ motions (1 RR 3-54), and on March 19, 2014, signed

orders denying Appellants’ motions. (CR 587, 599, 611, 623; Apx. Tab A).

      Appellants filed a Motion for Permission to Appeal Interlocutory Order (CR

635-640), setting it for hearing on May 5, 2014, at which time the trial court

verbally granted Appellants’ motion. (2 RR 14). On November 3, 2014, the trial

court signed an Amended Order Denying Defendants’ Motions for Summary

Judgment and Granting Defendants’ Motion for Permission to Appeal

Interlocutory Order.    (CR 656-662; Apx. Tab B).         On November 18, 2014,

Appellants filed their Petition for Permission to Appeal the November 3, 2014

Interlocutory Order with this Court, Appellee filed her response on December 15,

2014, and Appellants filed their reply on December 19, 2014.2 On January 7,

2015, the Court granted Appellants’ Petition. (Apx. Tab C).

                    STATEMENT OF THE JURISDICTION

      This Court has jurisdiction 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 an amended 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 opinion, and (2) an

2
       See Case Events log in Case No. 04-14-00803-CV, Juan Francisco Montalvo, M.D.,
F.A.C.O.G., et al. v. Gabriela Lopez, available at:
http://www.search.txcourts.gov/Case.aspx?cn=04-14-00803-CV&coa=coa04.
                                         xiii
immediate appeal from the order may materially advance the ultimate termination

of the litigation.   Further, this Court accepted the appeal of the trial court’s

amended order pursuant to section 51.014(f). See TEX. CIV. PRAC. & REM. CODE §

51.014(f); (Apx. Tab C).




                                        xiv
                            ISSUES PRESENTED

1.   Did the trial court err in denying Appellants’ motions for summary judgment
     based on the statute of limitations for health care liability claims governed
     by Chapter 74 of the Texas Civil Practice and Remedies Code? This issue
     necessarily includes the following sub-issues:

     a.    Health care liability claims are governed by the two-year statute of
           limitations period in section 74.251(a) of the Texas Civil Practice and
           Remedies Code. Are Appellee’s claims barred by limitations where it
           is undisputed that the treatment at issue occurred in December 2005
           but Appellee did not file suit until May 2013?

     b.    Courts begin with the presumption that statutes—like the limitations
           period in section 74.251(a)—are valid and constitutional. Did
           Appellee meet her burden to establish that the limitations period in
           section 74.251(a) is unconstitutional as to minors under the open
           courts provision of the Texas Constitution, such that Appellee had
           until her 20th birthday to file suit?

     c.    If Appellee’s open courts challenge is successful such that sections
           16.001 and 16.003 of the Texas Civil Practice and Remedies Code
           provide the limitations and tolling periods for Appellee’s health care
           liability claims, is Appellee entitled to use the provisions of section
           74.051 regarding pre-suit notice and authorization for release of
           protected health information to tack-on an additional 75-day tolling
           period?

     .




                                       xv
                          STATEMENT OF FACTS

      A.     Appellee’s Allegations

      Appellee alleges that, on or about December 11, 2005 (at age 12), she was

admitted to DHL’s emergency department. (CR 31, 429). There, Dr. Montalvo

diagnosed Appellee with acute abdominal pelvic pain, a left ovarian cyst, and

suspected adnexal torsion. (Id.). On December 13, 2005, Dr. Montalvo performed

a diagnostic laproscopy procedure, and later due to a decrease in Appellee’s blood

pressure and tachycardia, Dr. Montalvo proceeded with an exploratory open

laparotomy procedure. (CR 31, 429-30). Dr. Montalvo isolated some but not all

of the ongoing bleeding and achieved only partial hemostasis. (CR 31, 430). After

she was believed to be stabilized, Dr. Montalvo removed Appellee’s ovarian

cyst(s). (Id.). Lacerations in the retroperitoneum were assessed by Dr. Montalvo,

and he attempted to isolate the hemostasis and suture the lacerations.       (Id.).

Appellee’s blood loss was estimated at 1500 cc. (CR 430). Following these

surgical procedures, Appellee was taken to a postoperative care unit for potential

recovery. (Id.).

      Postoperatively Appellee experienced hypotension, and was assessed by Dr.

Najera and/or Dr. Montalvo with intra-abdominal bleeding, and was returned to the

operating room for surgery later on December 13, 2005. (CR 32, 430). Dr. Najera,

assisted by Dr. Montalvo, performed an exploratory laparotomy procedure with

findings of lacerations or injuries of the left iliac artery and vein, and intra-

BRIEF OF APPELLANTS                                                        PAGE 1
abdominal bleeding, and clamped the abdominal aorta and repaired the iliac blood

vessels. (Id.). Afterward, Appellee was taken to the ICU. (Id.).

      After transfer to the ICU, on or about December 13, 2005, Appellee

developed manifestations of shock, anuria, and hypotension, and upon a diagnosis

of bleeding versus abdominal compartment syndrome of her illness or condition by

Dr. Najera and Dr. Montalvo, Appellee was taken back to the operating room for

surgery for the third time that day. (CR 32, 430). Dr. Najera, assisted by Dr.

Montalvo, performed an exploratory laparotomy procedure related to abdominal

compartment syndrome. (Id.). During the surgery, Dr. Najera and Dr. Montalvo

assessed that there was scant amount of blood and her intestine in the abdominal

cavity came out as being in tension inside her abdomen. (CR 431). Appellee’s

vital signs improved, she began urinary output, and her blood pressure was

stabilized.   (Id.).   Dr. Najera and Dr. Montalvo surgically left Appellee’s

abdominal cavity opened, covered with dressings and a vacuum device, and with

two Jackson-Pratt drains. (Id.). Afterwards, Appellee was assessed as being in

stable but critical condition and was returned to the ICU for further care and

treatment. (Id.).

      Postoperatively, Appellee received medical care and treatment from Dr.

Montalvo, Dr. Najera, Dr. Vasquez, and the DHL nurses and other health providers

on or about December 13, 2005 to December 17, 2005. (CR 431). On or about the



BRIEF OF APPELLANTS                                                      PAGE 2
evening of December 15, 2005, Dr. Holzknecht, an orthopedic surgeon, examined

Appellee and diagnosed her with compartment syndrome of the left leg to include

interior, lateral and posterior compartments. (CR 431). On or about December 16,

2005, Appellee was again taken back to surgery where Dr. Holzknecht performed a

fasciotomy surgical procedure of four compartment syndrome and debridement of

muscle of Appellee’s left leg. (Id.). On or about December 16 or 17, 2005,

Appellee was discharged from DHL and transported to McAllen Medical Center.

(CR 432).

      B.    Theories of Liability

      On May 17, 2013, Appellee filed her original petition asserting health care

liability claims against Appellants.    (CR 27).     Appellee alleged the Doctor

Appellants breached their duties by engaging in one or more acts or omissions

constituting negligence, including failure to provide timely and proper medical

diagnosis, assessment, evaluation, treatment, and/or therapy for Gabriela Lopez’s

conditions and/or injuries and that Appellants, individually, and/or by and through

their employee(s), servant(s), or agent(s) engaged in other acts and/or omissions or

departures from reasonable, prudent, and accepted standards of medical care and/or

health care in the diagnosis, assessment, care, and treatment of Gabriela Lopez’s

above-described conditions and injuries. (CR 434-38).

      Additionally, Appellee alleged DHL was negligent in failing to properly

supervise the quality of medical, nursing, and hospital care and treatment of
BRIEF OF APPELLANTS                                                          PAGE 3
Gabriela Lopez’s illnesses, conditions, and/or injuries. (CR 439-40). Appellee

alleged that DHL is vicariously liable for the negligence of its employees, agents,

etc. in their hospital, administrative, medical, health care and/or nursing diagnosis,

assessment, care, and treatment of Gabriela Lopez’s illnesses, injuries, and

conditions. (Id.). Appellee further alleged that DHL failed to establish proper

policies and practices related to direction and supervision of the medical, surgical,

nursing, and/or health care treatment of Gabriela Lopez. (Id.).

      C.     Appellants File Motions for Summary Judgment

      On July 30, 2013, Appellant Vasquez filed his Traditional Motion for

Summary Judgment (CR 77-82), followed by Appellants Montalvo, Najera, and

DHL, respectively (CR 105-10, 119-24, 174-83), on the grounds that Appellee’s

claims are barred by the statute of limitations within section 74.251(a) of the Texas

Civil Practice and Remedies Code because Appellee filed suit against Appellants

seven (7) years five (5) months after the care in question. (Id.).

      Appellee responded, asserting that Appellants were not entitled to summary

judgment based on limitations because Texas Civil Practice and Remedies Code

section 74.251 is unconstitutional under the open courts provision of the Texas

Constitution and Appellee was a minor at the time her cause of action accrued.

(CR 280-83, 339-41, 488-91). Because of this, Appellee asserted that her claims

are governed by the statute of limitations and tolling provisions of sections 16.001

and 16.003 of the Texas Civil Practice and Remedies Code such that she had until
BRIEF OF APPELLANTS                                                            PAGE 4
her 20th birthday on March 11, 2013 to file suit. (Id.). Appellee further asserted

that because she sent pre-suit statutory notice of a written claim accompanied by

the appropriate authorization form for release of protected health information to the

defendants on March 8, 2013, Appellee was entitled to the 75-day tolling period in

section 74.051(c) of the Civil Practice and Remedies Code. (CR 283-84, 342-43,

361-62, 491-92). Appellee asserted that after tolling, her deadline for filing suit

was May 22, 2013 such that her petition filed on May 17, 2013 was timely. (CR

282-83, 342-43, 360-62, 491-92).

      Appellants Vasquez, Montalvo, and Najera replied, generally responding

that no case law supports that the tolling provisions in section 74.051(c) provide

Appellant with an additional 75 days to file suit after her 20th birthday, and that

Appellee had not proven that section 74.251(a) is unconstitutional. (CR 421-22,

558-59, 580-81). Appellee filed several supplemental responses. (CR 464-78,

563-78).

      On March 5, 2014 the trial court heard the Appellants’ motions for summary

judgment (1 RR 3-54), and on March 19, 2014, signed orders denying Appellants’

motions. (CR 587, 599, 611, 623; Apx. Tab A).

      D.     Proceedings After Trial Court Denied Appellants’ Motions for
             Summary Judgment

      On April 2, 2014, Appellants filed their Motion for Permission to Appeal

Interlocutory Order.    (CR 635-43).      Appellants asserted that the statute of


BRIEF OF APPELLANTS                                                           PAGE 5
limitations bars Appellee’s claims, and no Texas court had considered the issue of

whether the filing of a notice of claim letter gives a plaintiff who is a minor at the

time of her injury two years and 75 days from the date of her eighteenth birthday to

file suit. (Id.). Appellants urged that granting the appeal would possibly save

considerable time and expense and would materially advance the ultimate

termination of the litigation. (Id.). Appellee opposed the motion. (Id.).

      The trial court held a hearing on the motion and determined that it should be

granted (2 RR 14), and on November 3, 2014 signed a written Amended Order

Denying Defendants’ Motions for Summary Judgment and Granting Defendants’

Motion for Permission to Appeal Interlocutory Order. (CR 656-72; Apx. Tab B).

The trial court substantively ruled that section 74.251(a) is unconstitutional as to

minors such that sections 16.001 and 16.003 of the Civil Practice and Remedies

Code govern Appellee’s claims, and that section 74.051(c) further tolled

limitations until May 22, 2013 such that Appellee’s suit filed May 17, 2013 was

timely. (CR 657-68).

      The trial court further ruled that the order presented two controlling

questions of law as to which there is a substantial ground for a difference of

opinion, and that an immediate appeal of the amended order might materially

advance the ultimate termination of the litigation. (CR 657-68, 677).




BRIEF OF APPELLANTS                                                            PAGE 6
      E.     Appellants’ Petition for Permission to Appeal Interlocutory
             Order in this Court

      On November 18, 2014, Appellants filed their Petition for Permission to

Appeal Interlocutory Order, pursuant to sections 51.014(d) and (f) of the Texas

Civil Practice and Remedies Code, stating that this Court should accept

Appellants’ appeal as the trial court’s order involves two controlling questions of

law regarding the applicable statute of limitations and whether Appellee may

invoke pre-suit notice tolling provisions to save her claims. See TEX. CIV. PRAC. &

REM. CODE § 51.014(d), (f).3      Appellee filed her response to the petition on

December 15, 2014, and Appellants filed a reply on December 19, 2015. On

January 7, 2015, this Court issued its Order granting Appellants’ petition and this

appeal ensued. (Apx. Tab C).

                      SUMMARY OF THE ARGUMENT

      Appellee’s suit is barred by the statute of limitations. Thus, the trial court

erred when it denied Appellants’ motions for summary judgment based on

limitations, and this Court should reverse the trial court’s order and render

judgment that Appellee take nothing on her claims against Appellants.

      Appellee’s suit is based on medical treatment she received from Appellants

during December 2005. Health care liability claims are governed by the two-year

3
       See Case Events log in Case No. 04-14-00803-CV, Juan Francisco Montalvo, M.D.,
F.A.C.O.G., et al. v. Gabriela Lopez, available at:
http://www.search.txcourts.gov/Case.aspx?cn=04-14-00803-CV&coa=coa04.


BRIEF OF APPELLANTS                                                           PAGE 7
statute of limitations in section 74.251(a) of the Texas Civil Practice and Remedies

Code. While each Appellant was involved in different aspects of Appellee’s care,

the last possible date of treatment by all Appellants was December 17, 2005. Thus,

Appellee was required to file her suit no later than December 17, 2007. Appellee

failed to do so, instead filing suit on May 17, 2013. Therefore, Appellee’s suit is

barred by limitations.

      Appellee has urged that, because she was a minor at the time of treatment,

the statute of limitations in section 74.251(a) is unconstitutional as applied to

minors under the open courts provision of the Texas Constitution. Appellee failed

to demonstrate that section 74.251(a) is unreasonable. Rather, she merely posits

that the limitations and tolling provisions of section 16.001 and 16.003 of the

Texas Civil Practice and Remedies Code apply and gave her until her 20th birthday

to file suit. The Texas Supreme Court has not addressed the constitutionality of

section 74.251(a) as applied to minors. But even if 74.251(a) does not apply such

that Appellee had until her 20th birthday to file suit, she did not do so. She filed

suit more than two months after her 20th birthday. Appellee’s suit is barred by

limitations.

      Appellee was not entitled to an additional 75-day tolling period based on the

pre-suit notice provisions in Chapter 74. If, as Appellee urges, the limitations and




BRIEF OF APPELLANTS                                                          PAGE 8
tolling provisions of sections 16.001 and 16.003 govern her suit, she cannot claim

the additional benefit of a 75-day tolling period borrowed from Chapter 74.

      Appellee’s suit was untimely. Therefore, the trial court erred in denying

Appellants’ motions for summary judgment based on limitations. This Court

should reverse the trial court’s order and render judgment that Appellee’s claims

are barred by limitations and that she take nothing in all claims against Appellants.

                      ARGUMENT AND AUTHORITIES

I.    Appellee’s Suit Is Barred by Limitations

      Appellee’s suit is barred by the two-year statute of limitations governing

health care liability claims. See TEX. CIV. PRAC. & REM. CODE § 74.251(a).

Appellee’s cause of action accrued in December 2005. She did not file suit until

May 2013, and her suit is untimely.        Thus, the trial court erred in denying

Appellants’ motions for summary judgment based on the statute of limitations, and

this Court should reverse the trial court’s order and render judgment that Appellee

take nothing on her claims.

      A.     Standard of Review

      An appellate court reviews the grant or denial of a motion for summary

judgment de novo. Safeco Lloyds Ins. Co. v. Allstate Ins. Co., 308 S.W.3d 49, 52

(Tex. App.—San Antonio 2009, no pet.) (citing Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 847 (Tex. 2009); Tex. Mun. Power

Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192 (Tex. 2007)). In a

BRIEF OF APPELLANTS                                                            PAGE 9
traditional motion for summary judgment, the movant has the burden of showing

there is no genuine issue of material fact and that it is entitled to judgment as a

matter of law. Id.

      When a defendant moves for summary judgment on an affirmative defense,

such as the statute of limitations, the defendant must conclusively prove each

element of that defense. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001); City of

San Antonio v. Hernandez, 53 S.W.3d 404, 407 (Tex. App.—San Antonio 2001,

pet. denied). If a movant establishes that the statute of limitations bars the action,

the non-movant must then adduce summary judgment proof raising a fact issue in

avoidance of the statute of limitations. Nolan v. Hughes, 349 S.W.3d 209, 212

(Tex. App.—Dallas 2011, no pet.). Evidence favorable to the non-movant is taken

as true, and every reasonable inference in favor of the non-movant will be resolved

in its favor. City of San Antonio, 53 S.W.3d at 407.

      B.     Appellee’s Claims Are Barred by the Statute of Limitations in
             Section 74.251(a)

      Appellee’s claims are barred by the two-year statute of limitations in

Chapter 74. There is no dispute that Appellee’s claims are for health care liability.

(See CR 277, 334). Chapter 74 imposes a two-year statute of limitations for 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
BRIEF OF APPELLANTS                                                           PAGE 10
       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.

TEX. CIV. PRAC. & REM. CODE § 74.251(a). The “notwithstanding any other law”

language of section 74.251(a) imposes an absolute two-year limitations period on

health care liability claims. Kimbrell v. Molinet, 288 S.W.3d 464, 468 (Tex.

App.—San Antonio 2008), aff'd, 356 S.W.3d 407 (Tex. 2011).

       Here, Appellants submitted summary judgment evidence conclusively

establishing that Appellee’s claims are barred by the two-year statute of limitations

in section 74.251(a). The care rendered by the Appellants took place no later than

December 17, 2005. (CR 31-32, 84-87, 111, 131-32, 196-97). Thus, Appellee’s

cause of action accrued no later than December 17, 2005.4                      Under section

74.251(a), Appellee was required to file suit by December 17, 2007.                       It is

undisputed that Appellee did not file her suit until May 17, 2013. (CR 26-27).

Thus, under section 74.251(a), Appellee’s claims are barred. See TEX. CIV. PRAC.

& REM. CODE § 74.251(a). This Court should reverse the trial court’s order and

render judgment that Appellee take nothing against Appellants.


4
        A plaintiff may not choose for accrual the most favorable date that falls within section
74.251(a)’s three categories. Zweig v. S. Texas Cardiothoracic & Vascular Surgical Associates,
PLLC, 373 S.W.3d 605, 610 (Tex. App.—San Antonio 2012, no pet.) (citing Shah v. Moss, 67
S.W.3d 836, 841 (Tex. 2001)). Rather, if the date the alleged tort occurred is ascertainable,
limitations must begin on that date. Id.


BRIEF OF APPELLANTS                                                                    PAGE 11
      C.     Section 74.251(a) Not Unconstitutional

      In response to Appellants’ motions for summary judgment based on

limitations, Appellee claimed that the strict statute of limitations in section

74.251(a) does not apply under an open courts challenge to the statute, based on

Appellee’s status as a minor at the time she received treatment. (CR 280-83, 339-

41, 488-91). But the Texas Supreme Court has not ruled on the constitutionality of

section 74.251(a) as applied to minors, and Appellee failed to establish that the

statute is unconstitutional.

      When examining the constitutionality of a statute, courts begin with the

presumption that the statute is valid. Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698,

701 (Tex. 2014) (quoting Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126,

146 (Tex. 2010) (“To be sure, courts must be mindful that statutes are not to be set

aside lightly.”)). “We presume that the Legislature has not acted unreasonably or

arbitrarily; and a mere difference of opinion, where reasonable minds could differ,

is not a sufficient basis for striking down legislation as arbitrary or unreasonable.”

Methodist Healthcare Sys. of San Antonio, Ltd., L.L.P. v. Rankin, 307 S.W.3d 283,

285 (Tex. 2010) (quoting Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968)). “The

burden is on him who attacks a law for unconstitutionality and courts need not

exert their ingenuity to find reasons for holding the law invalid.” Id. (quoting Tex.

Nat'l Guard Armory Bd. v. McCraw, 132 Tex. 613, 126 S.W.2d 627, 634 (1939)).



BRIEF OF APPELLANTS                                                           PAGE 12
      The open courts provision of the Texas Constitution provides: “All courts

shall be open and every person for an injury done him, in his lands, goods, person

or reputation, shall have remedy by due course of law.” TEX. CONST. art. I, § 13.

This requirement “guarantees that a common law remedy will not be unreasonably

abridged.”   Tenet Hosps., 445 S.W.3d at 703.        This guarantee operates quite

differently from a tolling provision. Id. Tolling provisions generally defer accrual

of a claim until the plaintiff knew, or in the exercise of reasonable diligence should

have known, the facts giving rise to the claim. Id. By contrast, “the open courts

provision merely gives litigants a reasonable time to discover their injuries and file

suit,” and courts must determine what constitutes a reasonable time frame. Id.

(quoting Yancy v. United Surgical Partners Int'l, Inc., 236 S.W.3d 778, 785 (Tex.

2007)).

      To establish an open courts violation, the party challenging a statute must

show that (1) the statute restricts a well-recognized, common law cause of action,

and (2) the restriction is unreasonable or arbitrary when balanced against the

statute’s purpose. Lund. v. Giauque, 416 S.W.3d 122, 127 (Tex. App.—Fort

Worth 2013, no pet.) (citing Thomas v. Oldham, 895 S.W.2d 352, 357 (Tex.

1995)). This two-pronged inquiry applies to open courts issues whether the

underlying challenge is an as-applied or a facial attack. Id. (citing Boyd v. Kallam,

152 S.W.3d 670, 680 (Tex. App.—Fort Worth 2004, pet. denied)). Additionally,



BRIEF OF APPELLANTS                                                           PAGE 13
the Texas Supreme Court has explained its longstanding test for whether a law

violates the open courts provision: (1) if the law imposes substitute remedies,

whether those remedies are reasonable, or (2), relevant here, if the law extinguishes

remedies, whether such action is a reasonable exercise of the police power. Tenet

Hosps., 445 S.W.3d at 705 (citing Lebohm v. City of Galveston, 154 Tex. 192, 275

S.W.2d 951, 955 (1955)).

       As discussed, section 74.251(a) imposes a strict two-year statute of

limitations. Some claimants have successfully argued that the limitations period in

section 74.251(a)’s predecessor is unconstitutional under the open courts provision

of the Texas Constitution. See Weiner v. Wasson, 900 S.W.2d 316 (Tex. 1995). In

Weiner, the supreme court held that because section 10.01 of article 4590i (the

statute of limitations provision in Chapter 74’s predecessor) was unconstitutional

under the open courts provision of the Texas Constitution as applied to minors, the

statute of limitations and tolling provisions applicable to minors pursuing medical

negligence claims are contained in sections 16.001 and 16.003 of the Civil Practice

and Remedies Code.5            Id. at 320-31.        The Court stated that section 16.003


5
         Section 16.003 provides a general two-year statute of limitations for personal injury
claims: “Except as provided by Sections 16.010, 16.0031, and 16.0045, a person must bring suit
for . . . personal injury . . . not later than two years after the day the cause of action accrues.”
TEX. CIV. PRAC. & REM. CODE § 16.003(a). Section 16.001 describes the effect of disability on
the limitations period: “For the purposes of this subchapter, a person is under a legal disability if
the person is . . . younger than 18 years of age, regardless of whether the person is married . . . If
a person entitled to bring a personal action is under a legal disability when the cause of action
accrues, the time of the disability is not included in a limitations period.” Id. § 16.001(a), (b).


BRIEF OF APPELLANTS                                                                         PAGE 14
establishes a two-year limitations period, but section 16.001 tolls this period until

the minor reaches age eighteen. Id. at 321. Together, these sections require a

minor to file a claim before reaching age twenty for personal injuries sustained

during the period of minority. Id. (citing TEX. CIV. PRAC. & REM. CODE §§ 16.001,

16.003).

      Later, in Adams v. Gottwald, 179 S.W.3d 101, 103 (Tex. App.—San

Antonio 2005, pet. denied), this Court held that section 74.251(a) is similarly

unconstitutional under the open courts provision, where the minor filed suit before

her 20th birthday but after the expiration of the section 74.251(a) limitations

period. Id. at 102. Appellee urges that Weiner and Adams govern the application

of section 74.251 to her claim because Appellee was a minor (age 12) at the time

of the treatment giving rise to this dispute.6 (See CR 281-83, 339-41).

      But Adams involved a claim filed by the plaintiff’s parents well before the

child’s 20th birthday, and no other Texas appellate court has considered whether

section 74.251(a) is unconstitutional as applied to all minors, or under the facts of

this case. The Legislature undertook a major overhaul of medical malpractice law

in 2003 with the passage of House Bill 4. See generally, Act of June 2, 2003, 78th

Leg., R.S., ch. 204, 2003 Tex. Gen. Laws 847. Within that bill, the Legislature

reaffirmed its commitment to reducing the uncertainty surrounding unknown,

6
     Appellee was born on March 11, 1993. (CR 228). The health care at issue occurred in
December 2005. (CR 31-32, 429-32).


BRIEF OF APPELLANTS                                                             PAGE 15
potential claims by minors by including the limitations period addressing minors in

section 74.251(a), and it addressed and detailed the reasons for its actions through

findings in support of the limitations period, and thus, demonstrated the important

purpose of the statute which was enacted in the interest of the general welfare. See

id. §§ 10.01, 10.11.7       Thus, even after Weiner,8 the Legislature believed that


7
      Section 10.11 of Acts 2003, 78th Leg., Ch. 204 provides:

      (a) The Legislature of the State of Texas finds that:

      (1) the number of health care liability claims (frequency) has increased since 1995
      inordinately;

      (2) the filing of legitimate health care liability claims in Texas is a contributing
      factor affecting medical professional liability rates;

      (3) the amounts being paid out by insurers in judgments and settlements (severity)
      have likewise increased inordinately in the same short period;

      (4) the effect of the above has caused a serious public problem in availability of
      and affordability of adequate medical professional liability insurance;

      (5) the situation has created a medical malpractice insurance crisis in Texas;

      (6) this crisis has had material adverse effect on the delivery of medical and health
      care in Texas, including significant reductions of availability of medical and
      health care services to the people of Texas and a likelihood of further reductions
      in the future;

      (7) the crisis has had a substantial impact on the physicians and hospitals of Texas
      and the cost to physicians and hospitals for adequate medical malpractice
      insurance has dramatically risen, with cost impact on patients and the public;

      (8) the direct cost of medical care to the patient and public of Texas has materially
      increased due to the rising cost of malpractice insurance and protection for
      physicians and hospitals of Texas;

      (9) the crisis has increased the cost of medical care both directly through fees and
      indirectly through additional services provided for protection against future suits
      or claims, and defensive medicine has resulted in increasing cost to patients,

BRIEF OF APPELLANTS                                                                      PAGE 16
     private insurers, and Texas and has contributed to the general inflation that has
     marked health care in recent years;

     (10) satisfactory insurance coverage for adequate amounts of insurance in this
     area is often not available at any price;

     (11) the combined effect of the defects in the medical, insurance, and legal
     systems has caused a serious public problem both with respect to the availability
     of coverage and to the high rates being charged by insurers for medical
     professional liability insurance to some physicians, health care providers, and
     hospitals; and

     (12) the. adoption of certain modifications in the medical, insurance, and legal
     systems, the total effect of which is currently undetermined, will have a positive
     effect on the rates charged by insurers for medical professional liability insurance.

     (b) Because of the conditions stated in Subsection (a) of this section, it is the
     purpose of this article to improve and modify the system by which health care
     liability claims are determined in order to:

     (1) reduce excessive frequency and severity of health of health care liability
     claims through reasonable improvements and modifications in the Texas
     insurance, tort, and medical practice system;

     (2) decrease the cost of those claims and ensure that awards are rationally related
     to actual damages;

     (3) do so in a manner that will not unduly restrict a claimant's rights any more
     than necessary to deal with the crisis;

     (4) make available to physicians, hospitals, and other health care providers
     protection against potential liability through the insurance mechanism at
     reasonably affordable rates;

     (5) make affordable medical and health care more accessible and available to the
     citizens of Texas;

     (6) make certain modifications in the medical, insurance, and legal systems in
     order to determine whether or not there will be an effect on rates charged by
     insurers for medical professional liability insurance; and

     (7) make certain modifications to the liability laws as they relate to health care
     liability claims only and with an intention of the legislature to not extend or apply
     such modifications of liability laws to any other areas of the Texas legal system or
     tort law.


BRIEF OF APPELLANTS                                                                     PAGE 17
curbing health care litigation and costs through the use of a statute of limitations

period applicable to minors was a reasonable exercise of the Legislature’s power,

including its police power in the interest of the general welfare, even when

balanced against the restrictions it might place upon some claimants.                     See

Methodist Healthcare Sys., Ltd., L.L.P. v. Rankin, 307 S.W.3d 283, 292 (Tex.

2010) (upholding statute of repose created by Legislature in House Bill 4 against

open courts challenge).

       Appellee failed to show that Section 74.251(a)’s limitations period

constitutes an unreasonable exercise of the police power in the interest of the

general welfare. See Tenet Hosps., 445 S.W.3d at 705. Indeed, legislative action

that is not arbitrary or unreasonable and thus, is a reasonable exercise of the police

power in the interest of the general welfare must be sustained. See Rankin, 307

S.W.3d at 286. And the Texas Supreme Court has not ruled on the issue of

whether section 74.251(a) suffers the same constitutional infirmities as its

predecessor in section 10.01, or constitutes an unreasonable exercise of the police

power in the interest of the general welfare, especially in light of the Legislature’s




Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11, 2003 Tex. Gen. Laws 847.
8
       The Texas Supreme Court has not nullified the possibility that the abolition of a
common-law cause of action could be justified as a reasonable exercise of police power. Weiner
v. Wasson, 900 S.W.2d 316, 325 (Tex. 1995) (Owen, J., dissenting).


BRIEF OF APPELLANTS                                                                  PAGE 18
wholesale revisions to Texas medical malpractice law in 2003.9 Appellee did not

meet her burden to show that the statute is unreasonable when balanced against the

statute’s purpose and therefore unconstitutional.

       Here, Appellee’s treatment occurred no later than December 17, 2005, and

she was not “under the age of 12 years” at that time. Under section 74.251(a),

Appellee should have filed suit by December 17, 2007. But Appellee did not file

suit until May 17, 2013, more than seven years after treatment, and more than two

months after her 20th birthday. Appellee’s suit is therefore barred by the two-year

statute of limitations in section 74.251(a). This Court should reverse the trial

court’s order and render judgment that Appellee’s claims are barred by the statute

of limitations and that she take nothing on all claims against Appellants.

       D.     Even if Sections 16.001 and 16.003 Apply, Lopez’s Claims Are
              Barred by Limitations

       Even if the two-year limitation period in section 74.251(a) is

unconstitutional as applied to minors—which Appellants dispute—Appellee’s

claims are still barred because she did not file suit until after her 20th birthday.

       Again, if Weiner and Adams apply, or if the section 74.251(a) is an

unreasonable exercise of the Legislature’s police power, Appellee would have had

until her 20th birthday—March 11, 2013—to file this suit. But Appellee did not

9
       The supreme court does not defer to lower courts’ construction of statutes. See Tenet
Hosps., 445 S.W.3d at 702. While the supreme court denied review in Adams, this denial is not a
comment on the merits of the issue. Loram Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593, 596
(Tex. 2006) (citing TEX. R. APP. P. 56.1(b)(1)).

BRIEF OF APPELLANTS                                                                   PAGE 19
file suit until May 17, 2013, 67 days after her 20th birthday. Thus, Appellee’s suit

is still untimely. See Weiner, 900 S.W.2d at 321.

      Appellee contends that the deadline to file her suit was additionally tolled by

the service of pre-suit notices of claim and authorizations for release of protected

health information. (CR 283-84, 342-44, 361-62, 491-92). A Chapter 74 claimant

may extend the 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). The purpose for the notice and

disclosure requirements is to encourage the parties to negotiate and settle disputes




BRIEF OF APPELLANTS                                                          PAGE 20
prior to suit. Texas W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 189 (Tex.

2012).

       No Texas court has directly addressed whether a minor who is allowed to

toll accrual of limitations until her 18th birthday through Chapter 16 of the Civil

Practice and Remedies Code (giving her until her 20th birthday to file suit) is

allowed an additional 75-day tolling period based on pre-suit notice. However, the

court of appeals’ decision in Medina v. Lopez-Roman10 suggests that such a

claimant is not entitled to an additional 75 days of tolling.

       There, plaintiff Medina—who was 14 years old—received treatment from

the defendants after sustaining a fall at a treatment center. Medina, 49 S.W.3d at

395. A few months later, at age 15, Medina sent pre-suit notice letters and filed

suit against Dr. Lopez-Roman, but later non-suited his claims. Id. at 396. After

turning 18 years old, Medina sent pre-suit notice letters to Dr. Lopez-Roman and

Dr. Crane. Id. Medina later filed suit on his 20th birthday. Id. Both physicians

asserted that limitations barred Medina’s suit. Id.

       The basis of the physicians’ argument was that Medina should have filed

suit by midnight on the day before his 20th birthday. Id. The court of appeals

rejected this argument and held that Medina had through the day of his 20th

birthday to file suit. Id.


10
       49 S.W.3d 393 (Tex. App.—Austin 2000, pet. denied).


BRIEF OF APPELLANTS                                                        PAGE 21
       Importantly, though, the court’s analysis would have been wholly

unnecessary had the 75-day pre-suit tolling period applied. After all, Medina

served pre-suit notice letters after turning 18 and before re-filing his suit. If these

actions entitled Medina to an additional 75 days past his 20th birthday, there was no

need to analyze whether the suit filed exactly on his 20th birthday was within the

limitations period. Medina therefore suggests that when a claimant relies on the

tolling provisions of Chapter 16 based on an open courts challenge to the statute of

limitations for health care liability claims, the claimant must file suit no later than

her 20th birthday and is not entitled to an additional 75-day tolling period based on

pre-suit notice.

       Here, Appellee sent pre-suit notice letters11 on March 8, 2013, just three

days prior to her 20th birthday. (CR 184-90, 287-94). Appellants contend that if

sections 16.001 and 16.003 govern and toll limitations because Chapter 74’s

limitations provision is unconstitutional as to minors, which is not conceded,

Appellee does not get the additional benefit of the 75-day tolling provision in

section 74.051(c). Rather, limitations and tolling of limitations in that instance are

governed solely by Chapter 16 and not by Chapter 74. Thus, Appellee should have

filed suit by her 20th birthday, March 11, 2013. (CR 228). She did not file suit

until May 17, 2013, and her suit is barred by limitations. (CR 26-27).

11
        Appellants do not concede that the pre-suit notice letters meet statutory requirements, but
will assume so solely for purposes of this argument.

BRIEF OF APPELLANTS                                                                       PAGE 22
      While Appellee has suggested that the purpose of the pre-suit notice

provisions (encouraging negotiations and settlement prior to suit) would be

undermined if she does not receive the benefit of those provisions, Appellee

already had the benefit of a negotiation period of two years after her 18th birthday.

Further, when a claimant does not give a defendant pre-suit notice with the

authorization for release of protected health information, the suit may be abated

until 60 days following the receipt of such. See TEX. CIV. PRAC. & REM. CODE §

74.052(a); Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 938 (Tex.

1983). Thus, a period for negotiation and settlement is not undermined when the

plaintiff is not permitted to toll the limitations period. And case law suggests that

the notice provisions were intended to protect health care providers more so than

plaintiffs. See Jose Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 68, 72-73

(Tex. 2011). Further, the treatment at issue in this suit occurred in 2005. (CR 31-

32). Appellee has never explained why she could not have given notice well

before her 20th birthday and engaged in negotiations, nor why she could not have

filed suit before her 20th birthday.

      Appellee has also urged that by use of the phrase “applicable statute of

limitations” in section 74.051(c), the Legislature did not intend to limit tolling to

claims falling under section 74.251(a)’s limitations provision. (CR 466-67). But




BRIEF OF APPELLANTS                                                          PAGE 23
none of Appellee’s previously-cited cases or any other Texas cases have squarely

addressed or held as such.

       The Legislature first enacted the 75-day pre-suit notice tolling provision in

section 4.01(c) of article 4590i. See TEX. REV. CIV. STAT. ANN. art. 4590i, §

4.01(c), Act of May 30, 1977, 65th Leg., R.S., ch. 817, § 4.01(c), 1977 Tex. Gen.

Laws 2039, 2047. That section also contained the phrase “applicable statute of

limitations.” See id. In using the word “applicable,” the Legislature could not

possibly have been referring to the limitations provisions in Chapter 16 because

Weiner was not decided until 18 years later. The Legislature did not have Weiner

or Sax12 on its radar when it used the term “applicable” because those decisions

had not been handed down.            Further, with article 4590i and Chapter 74, the

Legislature took great effort to draft and pass an entire statutory chapter to govern

health care liability claims. Within those acts, the Legislature specified unique

statutes of limitations for health care liability claims and that they would apply

“notwithstanding any other law.” See TEX. REV. CIV. STAT. ANN. art. 4590i, §

10.01; TEX. CIV. PRAC. & REM. CODE § 74.251(a).                    It is simply illogical to

conclude that the Legislature—by the use of the phrase “applicable statute of

limitations”—meant for the tolling provision of section 74.051 (or section 4.01 of

article 4590i) to apply to the limitations provisions governing other claims, such as

12
        Sax v. Votteler, 648 S.W.2d 661 (Tex. 1983). The statute at issue in Sax was article 5.82
of the Insurance Code, which did not have a pre-suit notice provision. See id.

BRIEF OF APPELLANTS                                                                     PAGE 24
those provisions found in sections 16.001 and 16.003 of the Civil Practice and

Remedies Code.

      Instead, the term “applicable statute of limitations” in sections 74.051(c) and

4.01(c) referred to the fact that, in health care liability claims, the applicable statute

of limitations is measured 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); see Shah

v. Moss, 67 S.W.3d 836, 841 (Tex. 2001).

      Further, by using the phrase “applicable statute of limitations,” the

Legislature may have also referred to the fact that the “applicable” statute of

limitations might actually be longer than two years, through the clause that allowed

minors under the age of 12 to have until their 14th birthday to file suit. TEX. CIV.

PRAC. & REM. CODE § 74.251(a); TEX. REV. CIV. STAT. ANN. art. 4590i, § 10.01,

repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen.

Laws 847, 884.

      If section 74.251(a) is considered unconstitutional as to minors, Appellee

had more than seven years from the date of her treatment within which to file suit

or have a suit filed on her behalf. If the statute is unconstitutional, she had the full

benefit of two years after her 18th birthday to file suit herself. If Appellee seeks the

harbor of Chapter 16 to toll accrual of limitations on her claim until her 18th



BRIEF OF APPELLANTS                                                              PAGE 25
birthday, such that she has until her 20th birthday to file suit, no authority provides

she may invoke an additional 75-day tolling period through section 74.051(c).

Appellee’s suit was filed after her 20th birthday, after the limitations period in

Chapter 16 had run. Appellee’s suit was untimely. This Court should reverse the

trial court’s order and render judgment that Appellee’s suit is barred by limitations

and that she take nothing on all claims against Appellants.

                           CONCLUSION & PRAYER

      This Court should reverse the trial court’s order denying Appellants’

motions for summary judgment. Appellee filed suit more than seven years after

the medical treatment at issue in her claims. The two-year statute of limitations in

section 74.251(a) bars Appellee’s claims. Appellee has not shown that the statute

violates the open courts provision of the Texas Constitution.

      But even if section 74.251(a) violates the open courts provision, giving

Appellee until her 20th birthday to file suit, she did not do so. Appellee filed suit

more than two months after her 20th birthday, rendering her suit untimely and

barred by the alternative limitations period in section 16.003 of the Texas Civil

Practice and Remedies Code.

      Having relied on the limitations and tolling provisions of Chapter 16,

Appellee cannot tack on the additional pre-suit notice tolling provisions in Chapter

74. Appellee had two years after reaching majority in which to prepare her suit



BRIEF OF APPELLANTS                                                            PAGE 26
and engage in pre-suit negotiations, and has offered no reason why she could not

have filed suit by her 20th birthday.

      Appellee’s suit is barred by the statute of limitations. Thus, the trial court

erred in denying Appellants’ motions for summary judgment. This Court should

reverse the trial court’s order and render judgment that Appellee take nothing in all

her claims against Appellants.

      THEREFORE, Appellants Juan Francisco Montalvo, M.D., F.A.C.O.G.,

Winder N. Vasquez, M.D., Miguel E. Najera, J.D. Executor of the Estate of Miguel

E. Najera, M.D., Deceased, and Laredo Regional Medical Center, L.P. d/b/a

Doctors Hospital of Laredo respectfully pray this Court grant Appellants’ issues on

appeal, reverse that portion of the trial court’s November 3, 2014 Amended Order

denying Appellants’ motions for summary judgment, and render judgment that

Appellee take nothing in all claims against Appellants. Appellants also pray for all

such other and further relief, whether general or special, at law and in equity, as

this Court deems just.




BRIEF OF APPELLANTS                                                          PAGE 27
                                     Respectfully submitted,

                                     COOPER & SCULLY, P.C.



                                     By: /s/Diana L. Faust
                                         DIANA L. FAUST
                                         diana.faust@cooperscully.com
                                         State Bar No. 00793717
                                         R. BRENT COOPER
                                         brent.cooper@cooperscully.com
                                         State Bar No. 04783250
                                         KYLE M. BURKE
                                         kyle.burke@cooperscully.com
                                         State Bar No. 24073089

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

                                     ATTORNEYS FOR APPELLANTS

                      CERTIFICATE OF COMPLIANCE

      I hereby certify that this Brief of Appellants was prepared 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

6,792 words.



                                     /s/ Diana L. Faust
                                     DIANA L. FAUST




BRIEF OF APPELLANTS                                                       PAGE 28
                        CERTIFICATE OF SERVICE

      I hereby certify that I served a true and correct copy of this Brief of
Appellants upon all counsel of record as indicated below, on this the 9th day of
February, 2015, at the following address:

Mr. Darrell L. Keith                                               VIA EFILE
dkeith@keithlaw.com
Keith Law Firm, P.C.
301 Commerce Street, Suite 2850
Fort Worth, Texas 76102
Counsel for Appellee

Mr. James Kevin Oncken                                             VIA EFILE
kevin@unolaw.com
Mr. Roger A. Berger
rberger@uzickoncken.com
Uzick & Oncken, P.C.
238 Westcott Street
Houston, Texas 77007
Trial Counsel for Appellant
Juan Francisco Montalvo, M.D.

Mr. Bruce E. Anderson                                              VIA EFILE
banderson@brinandbrin.com
Mr. James W. Veale, Jr.
jveale@brinandbrin.com
Mr. Loren L. Whyte
lwhyte@brinandbrin.com
Brin & Brin, P.C
6223 IH 10 West
San Antonio, Texas 78201
Trial Counsel for Appellant
Winder N. Vasquez, M.D.




BRIEF OF APPELLANTS                                                     PAGE 29
Mr. W. Richard Wagner                                   VIA EFILE
rwagner@wagnercario.com
Mr. Peter Cario
pcario@wagnercario.com
Wagner Cario, L.L.P.
7718 Broadway, Suite 100
San Antonio, Texas 78209
Trial Counsel for Appellant
Miguel E. Najera, J.D., Executor of
Estate of Miguel E. Najera, M.D., Deceased

Mr. Steven M. Gonzalez                                  VIA EFILE
Mr. Edward J. Castillo
ecastillo@valleyfirm.com
Gonzalez Castillo, L.L.P.
1317 E. Quebec Avenue
McAllen, Texas 78503
Trial Counsel for Appellant
Laredo Regional Medical Center, L.P.
d/b/a Doctors Hospital of Laredo



                                    /s/Diana L. Faust
                                   DIANA L. FAUST




BRIEF OF APPELLANTS                                        PAGE 30
                      ORAL ARGUMENT REQUESTED
                              NO. 04-14-00803-CV


                IN THE COURT OF APPEALS
 FOR THE FOURTH DISTRICT OF TEXAS AT SAN ANTONIO, TEXAS


       JUAN FRANCISCO MONTALVO, M.D., F.A.C.O.G., ET AL.,
                         Appellants
                                        v.
                             GABRIELA LOPEZ,
                                 Appellee.


                 On Appeal from the 341st District Court
            Webb County, Texas, Cause No. 2013CVT 000841-D3
                          (Hon. Beckie Palomo)


                  APPENDIX TO BRIEF OF APPELLANTS


      In compliance with rule 38.1 of the Texas Rules of Appellate Procedure,

Appellants Juan Francisco Montalvo, M.D., F.A.C.O.G., Winder N. Vasquez,

M.D., Miguel E. Najera, J.D. Executor of the Estate of Miguel E. Najera, M.D.,

Deceased, and Laredo Regional Medical Center, L.P. d/b/a Doctors Hospital of

Laredo submit this Appendix to their Brief of Appellant:

      Tab A:       March 19, 2014 Orders Denying Defendants’ Motions for
                   Summary Judgments and Traditional Motion for Summary
                   Judgment (CR 587, 599, 611, 623)




BRIEF OF APPELLANTS                                                   PAGE 31
         Tab B:   November 3, 2014 Amended Order Denying Defendants’
                  Motions for Summary Judgment and Granting Defendants’
                  Motion for Permission to Appeal Interlocutory Order (CR 656-
                  661, 677)

         Tab C:   January 7, 2015 Order Granting Appellants Petition for
                  Permission to Appeal from an Interlocutory Order
D/920637v4




BRIEF OF APPELLANTS                                                   PAGE 32
APPENDIX TAB “A”
                                                                                                           587




GABRIELA `LOPEZ                                                       IN Tat,DIsllutT COURT

                Plaintiff                                                                           vr:-    c.-D, A) m
                                                                                                              ,77 C:: ---A
vs.                                                                                                          -4 I1 re)
                                                                                                            -IC:
                                                                                                    hi ? = --I2
                                                                                                    CD
                                                                                                        ,. ril
                                                                                                       •z) r.. CO
JUAN FRANCISCO,MONTALVO, M.D.,                           §                                            ,...„....,,,
F.A.C.O.G, WINDER, N. VASQUEZ,'W1.D.                     §            34IST AAA -                TwT.,..0 'r..-.:>r-
MIGUEL E. NAJERA, J.D., EXECUTOR                         §
OF ESTATE OF MIGUEL L NAJERA, M.D.,                      §                                                  liz-in
                                                                                                                •--I
DECEASED, AND'DOCTORS HOSPITAL                           §
LAREDO,
            Defendants                                                   WEJ313 COUNTY, TEXAS

               ORDER DENYING DEFENDANT wAcuEL NAJERA, J.D.'S,
             AS. EXECUTOR OF Prpu-EICATE OF MIGUEL`NAJERA,NID.'S
                       MOTION FOR SUMMARY JUDGMENT-



             pow         TO:-BE.!1EARD;:OhNiat-eh 5, 2014,.theDefendant Migt41 Naipy#;.J,D;'S,

As Dcectifot' tof the .Estate     ,ivrigia, Najora,("Defendant Naje".") .Motion far SUrnmary

Judgment and thd                                 ` 31alniiff") respPtIe tc•msuch .motion in the above styled

,and iniinbeted- cause. the. Plaintiffand Pefendant appeared .by ad& thieUghKtheir.tespeetive attorneys of

'record!and announced ready to procied. After considering the pleadingS, thecaboVereferenced.Oefendant .

isjajera!s motion for sunitita, jUdgMent,:the'Piaintiffs' response, the 'summary 'judgment evidence;. and.

argutnerits of .Plaintiff and Defendant -N.ajeras counsel,: the Court is of       opinion that. the above

mentioned i-nbtforifOr. summaryjUdgment of the Defendant Najera should be denied.

        IT IS 14P..REFORE:ORDERED thafthe:.Defendarit Najera's Motiori.fcit Summary Judgment is

he-reby DENIED.
                                                 opi. t.4.8\
        SIGNER AND' ENTERED .thiS.the              I .day of




                                                :jITDGETRFSIDING


opki‘pENYINc,pp7.1.F.IANT*-NnqUA14. i,N,/AJP1,,J:p.,:.X.EctrrpR QF ESTATE
rinct.TEL E NAJERA, M.D.'S MOTION FOR STJMNTAitY JUDGMENT                                          PAGE'!
                                                                                                            599



                                   cAvsEtsta:io0evr 000841.03
GABRIELA LOPEZ                                                           IN THE'D

                 Plaintiff

vs.


JUAN FIRANCISCOMONTALVO,-NLII.,
         WfNliER;N: vAsQpni                                §             341STIVOICIAL DISTRICT
MIGUEL E. NAJERA, J.D., ENECKTOR                           §
OF ESTATE OF;Kip-u4 t:NAJEPA,                              §
DECEASED, AND;DikToitg:Ho'spITAL                           §
LAREDO,
           DefOdants                                                        WEBS COUNTY, TEXAS

                           ORDER DENYING DEFENDANT
                            WITIDER'N. VASQUEZ, AD'S
                   TRADITIONALmOtION FOR SUMMARY JUDGMENT



        CAIVEC ON TO :BE HEARD' on March 5, 2014, the Defendant Winder N. Vasquez; M.D.'s

("Defendant . Dr. VasqUez":) (TraditiOnal 'Motion :fOr Sumniary Itidgrrient and .,:theflaintiff qabriela Lopez'

(the "Plaintiff') response to. such fitOtitin ;iri, the. above stylecrand.nuffibere4 cause. The Plaintiff, and

Defetidarit,appeared by and through their respective attorneys of record arid announced readylo,proeeed.

After -considering 'the pleadings, • the, arboVs&referenced Defendant ,Dr. Ya§ine;'s traditional' motion' for

'summary judgment, the               reipciiise; the traditional surnmary.jUdgrheriteViderice, and arguments.

of Plaintiff and Defendant Dr: tiapvezla counsel, 'the Court is of f,110 OPjiiipp that the'above mentioned

••traditionaHnOtioratir Snitiniaryjudgrribnt of the Defendant Dt. Vagquez'shOurci be denied.

        IT      TIltREFORE: .ORDERED                     Defendan        yasquez's. Traditidital Motion for

,Sumtnary•Judgment is hereby DtWD.
                                                    .44
        SIGNED. AND'ENTFOWth ik the                   . day of




ORDER DENY mg, owNspAr. WINDER N,       nEK'S
TRADITIONAL MOTIONfoRrstvimARY JUDGMENT                                                               PAGE 1
                                                                                                      611




                                  cAijstivD.:10I3CVT*600841--D3
GABRIELA LOPEZ                                                           THE,DISTRICT
                                                                                                7,p
                                                                                                            •

"VS,


JUAN FRANCISCQ,JVIONTALVO,i            §.
          WINDER N. VASQUEZ, NI:D.     §,                           '341ST JUD
IVEIGUEL,tiNAYERA,
OF ESTATE'OF 'm-FGu4 E. NAJErti„m:11,, §
DECEASED, AND DOCTORS HOSPITAL §
LAREDO,
            Defendants                                                  vmpli,CQPNTY, TEXAS
                 ORDER.DENYIIG DEFENDANT LAREDolitOtoNAL
                MEnIcAt, CENTER,  D/B/A Dcfcrogs, HO$PITALOF
               LAREDO,(IMPROPEREVNAMED AS DOCTORS HOSPITAL
                 OF tAttEDOI,SY MOTION- FORSUMMARY JUDGMENT



        CAME'ON TO BE IMAM) on March 5, 2014, the Defendant Laredo kegional Medical

Center Medical Center,. L.11:, di101,a,PbetOrsHOspital Of Laredo (Impreperly Named. As Doctor's

Hospital Of LaredO's) (156fendant, pow) Motion for Summary ilidgment and the Plaintiff.Gabyieja

Lopez' (the "Plaintiff') response td such motion in the above styled anddiuMb'6red Cause. The:P.)440ff'

.arid Defendant appeared by and :through 'their respective attorneyS• of retOrd and ,announced ready to

proceed. After considering the pleadings; Vie,:aboVe-referented Deferidan(DHPs .niOtion for summary

kidgirient, the' Plaintiff's response, :the ,summary judgment ,evidence, .and arguments of Plaintiff and

bqfpndant, IDHL'S counsel, the COUrt is' of 'the opinion that the above mentioned motiOn' fOr Sutintiasy

,judgment of the DefendantlYKLIshould bedenied,

        IT IS THEREFORE ORDERED that the Defendant                s!s,Motion,for Surnniary judgment is

hereby DENIED.
                                                   FI4A
        S J G NED,. AND, ENTERED: th s'ith e::




                                                 JUDGE' ruslpirtIc
                                                                                                          623



                                 CAUSE NO. 2913CVT 000841.03

GABRIELA LOPEZ                                                          IN THE DISTRICT COURT

                Plaintiff                                                                           ra      P'0 n".
                                                                                                    i=4     (-)
                                                                                                    -=      cprT1
                                                                                                                Z rn
vs.
                                                                                                                      =
                                                                                                                  <M
                                                                                                    N.)            —17-0
                                                                                                    c=)           Frks,•-i
                                                                                                                     rn
JUAN FRANCISCO MONTALVO, M.D.,
F.A.C.O.G, WINDER N. VASQUEZ, M.D.                                      341ST JUDI At DISTRICT41 ;C:f24' (5r, 1.)
MIGUEL E. NAJERA, J.D., EXECUTOR                                                                    C>      I>
                                                                                                              •C.) c3
OF ESTATE OF MIGUEL•E. NAJERA, M.D.,                                                                cz)     r
                                                                                                            •.^
DECEASED; AND DOCTORS HOSPITAL                                                                                     4.t)
LAREDO,
            Defendants                                                     WEBS: COUNTY,         TEXAS

                            ORDER DENYING DEFENDANT JUAN
                             FRANCISCO MONTALVO, M.D.'S
                            MOTION .FOR SUMMARY JUDGMENT



        CAME-ON TO.BE-ITEARD on March 5, 2014, the Defendant Juan Fi.abcfseb Iviontatvo,
("Defendant Dr. Montalvo") .MOtibri for Sitmtnary Judgment and the Plaintiff Gabrie1a,1,,opez' (the

"Plaintiff') response to such motion' in the, above styled and. numbered cause, 'The Plaintiff and
Defendant appeared by and through :their respective attorneys of record and announced ready to proceed.

After considering the pleadings, the above4eferenced Defendant Dr. MontalVo's motion for summary

judgment,. the Plaintiff's response, the summary judgment evidence, and arguments of Plaintiff and

Defendant Dr. Montalvo'S counsel, the Court7is of the, opinion that. the above mentioned motion for
sitminary','judginent of the Defendant Dr. Montalvo should be denied,

        IT TS THEREFORE ORDERED that the Defendant. Dr. Montalvo's Motion for Summary
Judgment is hereby DENIED.
                                       '464
        SIGNED AND ENTERED this the I 1 day of                    h 2014.




                                                ATD


OMAR:DENYING DEFENDANT JUAN FRANCISCO MONTAVVO, M.D.'S
MOTION FOR SVMMARY'SODGMENT                                                                        PAGE 1
APPENDIX TAB “B”
                                                                                                                     656

09/18/2014 15:03 8178702448                                KEITH LAW FIRM, P.C.                          PAGE 03/08




                                      CAUSE NO. 2013CVT 000841-D3

     GABRIELA LOPEZ                                                        IN TUX DI
                                                             §
                       Plaintiff

 - VS.


     JUAN FRANCISCO MONTALVO, M.D.,
     F.A.C.O.G, WINDER N. VASQUEZ, M.D.                                   341ST JUDICIAL DISTRICT
     MIGUEL E. NAJERA, EXECUTOR
     OF ESTATE OF MIGUEL E. NAJERA,, M.D.,
     DECEASED, AND DOCTORS HOSPITAL        §
     LAREDO,
                 Defendants                                                  WEBB COUNTY, TEXAS

          AMENDED ORDER DENYING DEFENDANTS' MOTIONS FOR SUMMARY
        JUDGMENT AND GRANTING DEFENDANTS' MOTION FOR PERMISSION TO
                       APPEAL INTERLOCUTORY ORDER

                                                                                                      .10•••••••=inamme




             CAME ON TO BE HEARD on March 5, 2014, the Defendants Juan Francisco Montalo, M.D.,

     F.A.C,0.0.'s, Winder N. Vasquez, M.D.'s, Miguel E. Najera, ID.'s Executor of the Estate of Miguel E.

     Najera, M.D., Deceased's, and Laredo Regional Medical Center, L.P. d/b/a Doctors Hospital of Laredo's

     (collectively the "Defendants") Motions for Summary Judgment, the Plaintiff Gabriela Lopez's (Plaintiff)

     responses and objections to such motions, and Defendants' replies and objections to such responses in the

     above-styled and numbered cause (the "cause"). Plaintiff and Defendants appeared by and through their

     respective attorneys of record and announced ready to proceed. After considering 'Defendants' motions,

     Plaintiff's responses, objections, Defendants' replies and objections, summary judgment evidence, and

     arguments of counsel, the Court determined that the Defendants' motions for summary judgment should

     be denied and signed and entered its orders denying the Defendants' motions for summary judgment on

     March 19, 2014.

            On May 5, 2014 came on to be heard the Defendants' Motion for Permission to Appeal

     Interlocutory Order, and the Plaintiff's response to such motion. Plaintiff and Defendants appeared by

     and through their respective attorneys of record and announced ready to proceed. After considering the


     AMENDED ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND
     GRANTING DEFENDANTS' MOTION FOR PERMISSION TO APPEAL INTERLOCUTORY APPEAL PAGE
                                                                                                                      657

09/18/2014 15:03         81713702448                         KEITH LAW FIRM, P.C.                          PAGE 04/08




                                                         GA BRIEL,4 LOPEZ v. JOAN FRANCISCO MONTALVO, M.D., BT AL.


      Defendants' motion, Plaintiff's response, and arguments of counsel, the Court determined that the

      Defendants' motion should be granted and that an amended order denying the Defendants' above-

      mentioned motions for summary judgment should be signed and entered.

              IT IS THEREFORE ORDERED that Defendants' Motions for Summary Judgment be and are

      hereby DENIED.

              TEE COURT FINDS that this Amended Order Denying Defendants' Motions for Sumrnaty

      Judgment (Amended Order) involves controlling questions of law as to which there is a substantial

      ground for difference of opinion, to wit:

              1.       Whether Texas Civil Practices and Remedies Code §§ 16.001 and 16.003 govern the
                       statute of limitations as to Plaintiff's health care liability claim, or Texas Medical
                       Liability Act (TMLA), Texas Civil Practices and Remedies Code § 74.251(a), governs
                       limitations as to Plaintiff's health care liability claim, where it is undisputed that the
                       Plaintiff-claimant was a minor at the time of the health care, medical care, or treatment
                       made the basis of her claims in this cause; and

              2,      If Texas Civil Practices and Remedies Code §§ 16.001 and 16.003 govern the statute of
                      limitations as to Plaintiff's healthcare liability claim, whether TMLA § 74.051(c) applies
                      to further toll Plaintiff's health care liability claim for a period of 75 days following her
                      giving of statutory presuit notice of claim and authorization form for release of protected
                      health information to Defendants pursuant to TMLA §§ 74.051(a) and 74.052,

              In denying Defendants' motions for summary judgment through this Amended Order, the Court

      makes the following substantive rulings on above-stated legal questions presented in Defendants' motions

      and replies and Plaintiff's responses:

              1.      Because TMLA § 74.251(a) is facially unconstitutional and violates Texas Constitution
                      article I, § I3's Open Courts provision as to minors, Texas Civil Practice and Remedies
                      Code §§ 16.001 and 16.003 govern limitations as to Plaintiff's health care liability claim;
                      and

              2.      TMLA § 74.051(e) applies to further toll limitations under Texas Civil Practice and
                      Remedies Code §§ 16.001 and 16.003 for Plaintiff's health care liability claim, for a
                      period of 75 days following her giving of notice and authorization form for release of
                      protected health information to Defendants on March 8, 2013, which was prior to the
                      expiration of the applicable two-year statute of limitations. As applied, TMLA §§
                      74.051(c) and 74.052 tolled Plaintiff's health care liability claim until May 22, 2013.
                      Because Plaintiff filed her health care liability claim lawsuit on May 17, 2013, the


      AMENDED ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND
      GRANTING DEFENDANTS' MOTION FOR PERMISSION TO APPEAL INTERLOCUTORY APPEAL FACE 2
                                                                                                                      658

09/18/2614 15:03 8170702448                                 KEITH LAW FIRM, P.C.                           PAGE 05/08




                                                        GABRIELA LOPEZ P. JUAN FRANCISCO MOIVTAL VO MD., ET AL.



                     applicable statute of limitations does not bar Plaintiff's health care liability claim against
                     Defendants.

             THE COURT FUR I LILA FINDS that an immediate interlocutory appeal of this Amended

     Order on these two issues and the Court's substantive rulings may materially advance the ultimate

     termination of this litigation in that, if this Amended Order is reversed, Plaintiff's claims must be

     dismissed with prejudice as barred by the applicable statute of limitations. If this Amended Order is

     affirmed, Plaintiff's claims will not be barred by limitations and Plaintiff's claims may proceed with

     prosecution against Defendants in this cause. Therefore,

             ITS IS FURTHER ORDERED that Defendants' Motion for Permission to Appeal Interlocutory

     Order is GRANTED as to the legal issues and substantive rulings contained herein, and Plaintiff's

     objections to the Defendants' Motion for Permission to Appeal Interlocutory Order are hereby DENIED.

             IT IS FURIIthit ORDERED that Defendants are granted permission to pursue an interlocutory

     appeal of this Amended Order pursuant to Texas Civil Practice and Remedies Code §51.014(d).

             IT IS FURTHER ORDERRED that this Amended Order vacates and replaces the Orders

     Denying Defendants' Motions for Summary Judgment signed by the Court on March 19, 2014.



            SIGNED AND ENTERED this the             3       d y of                           , 2014.




     AMENDED ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND
     GRANTING DEFENDANTS' MOTION FOR PERMISSION TO APPEAL INTERLOCUTORY APPEAL PACE .3
                                                                                                              659

09/18/2014 15:03 8178702448                        KEITH LAW FIRM, P.C.                             PAGE 06/08




                                               O4BRIEL.4 LOPEZ v. j (IAN FRAINIC(SCO AfONTALVO) hi" .ET AI-



        APPROVED AS TO FORM ONLY:

        KEITH LAW FIRM, P.C.
        301 Commerce Street, Suite 2850
        Fort Worth, Texas 76102
        T: (817) 338-1400
        F: (817) 870.2448
        E: dkeith®keithlaw.com


        By:
           Darrell L. Keith, Attorney-In-Charge                        Date Signed
           SOOT NO: 11186000

           ATTORNEYS FOR PLAINTIFF
           GA.BRIELA LOPEZ


        UZICK & ONCKEN, P.C.
        238 Westcott Street
        Houston, Texas, 77007
        T: (713) 869-2900
        F: (713) 869-6699
        E: kevin@unolaw.com
             rberger@nzichoneken.com


        By: . .4 ,        4 , 6-z                             y-.2.)
         James evin Chicken, Atto      -in-Charge , . Date Signed
         SBOT No. 15280050        iLlatra a,t, ii44-4-41-1,
         Roger A. Berger, Attorney-of-Rbeor              t-- ,;., :.) 4.4.1.4pC
         SOOT NO. 02192400                   -r6A1 oeyg3p.7
           ATT'ORNEYS'FOR DEFENDANT
           JUAN FRANCISCO MONTALVO,




     AMENDED ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND
     GRANTING DEFENDANTS' MOTION FOR PERMISSION TO APPEAL INTERLOCUTORY APPEAL                    PAGES
                                                                                                      660




09/18/2014 15:10    8178782448                   KEITH LAW FIRM, P.C.                       PAGE 07/04




                                             GASRIVA tOPEZ v. JUAN FRANCISCO MON1ALII0 ALD ET .41-.




        BRIN & BRIM,
        6223 111 10 West
        San Antonio, Texas 78201
        T: (210) 34179711
        F: (210) 341.1854
        E: banderson@hrinandbrin.com
            Iveale@brinandbrin.cora
            1whyte@brinan brin.com


        By:
           Bruce E. Anderson, Attorney-In-Charge           Date Signed
           81301' NO. 01165969
           James W. Wale, Ir., Attorney-of-Record
           SBOT NO. 24033296
           Lorien L Whyte, Attorney-of-Record
           SBOT NO. 24042440


        ATTORNEYS FOR DEFENDANT
        WINDER N. VASQUEZ, M.D.




        WAGNER CARIO, L.L.P.
        7718 Broadway, Suite 100
        San Antonio, Texas 78209
        T: (210) 979-7555
        F: (210) 979-9141
        E: rwagner@wagnercario.cont
            pcario@wagnercario,coni

                      •ket-Lec,                     4—)         ?                 1-
           W, Richard Wagner, Attorney-In=charge           Date Signed
           SBOT NO. 20661130 G.
           Peter Carlo, Attorney-of- ec
                                      oed                         -1-e-a-
           SBOT NO.24000138                7 11/4 )       002-) q 3           -
        ATTORNEYS FOR DEFENDANT
        MIGUEL E. NAJERA,J,D, EXECUTOR OF
        ESTATE OF MIGUEL E. NAJERA, M.D., DECEASED

     AMENDED ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND
     GRANTING DEFENDANTS' MOTION FOR PERMISSION TO APPEAL INTERLOCUTORY APPEAL.           PAGE 5
09/18/2E114 15:03 8178702448                   KEITH LAW FIRM, P.C.                         PAGE 08/08




                                            GABRIELA LOPEzr. JUAN FRANCISCO MONTALvo, A1.112 ET AI-




        GONZALEZ CASTILLO, LLP
        1317 E. Quebec Avenue
        MeAllen, Texas 78503
        T: (956) 618-0115
        F: (956) 618-0445
        E: ecastillo@valleyfirmeom


        By:
           Steven M Gonzalez, ttorney-In-Charge • . Date Signed
           SBOT NO. 08131900 L(       L. ib-c)- 4-
           Edward J. Castillo, Attorney of Record-exiLi,c~,..9 ez,/..4-e—
           SBOT NO. 24040658            1-23d 62.--1     9 3 41 9"
        ATTORNEYS FOR DEFENDANT
        LAREDO REGIONAL MEDICAL CENTER, L.P.
        D/B/A DOCTORS HOSPITAL OF LAREDO


        COOPER & SCULLY, P.C.
        900 Jackson St, #100
        Dallas, TX 75202
        T; (214) 712-9500
        F: (214) 712-9540
        E: Diana.Faust@cooperseully.coill



        By: "1-v--4--.11-14-1     tfi
         R. Brent Cooper, Attorney- -Charge               Date Signed
         SBOT NO. 04783250
         Diana L. Faust, Attorney of Record
         SBOT NO. 00793717

     APPELLATE COUNSEL FOR DEFENDANTS




     AMENDED ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND
     GRANTING DEFENDANTS' MOTION FOR PERMISSION TO APPEAL INTERLOCUTORY APPEAL            PAGE 6
                                                                                           677




                                       GABRIELA LOPEZ v. JUAN FRANCISCO MONTALVO, M.D., ET AL.




   APPROVED AS TO FORM ONLY:

   KEITH LAW FIRM, P.C.
   301 Commerce Street, Suite 2850
   Fort Worth, Texas 76102
   T: (817) 338-1400
   F: (817) 870-2448
   E: dkeith@keithlaw.com


   By:   \11                                                       41 •       ro
    "Darrell L. Keith, Attorney-In-Charge                    Date Signed
      SBOT NO: 11186000

      ATTORNEYS FOR PLAINTIFF
      GABRIELA LOPEZ


   UZICK & ONCKEN, P.C.
   238 Westcott Street
   Houston, Texas, 77007
   T: (713) 869-2900
   F: (713) 869-6699
   E: kevin@unolaw.com
       rberger@uzickoncken.com


   By:
      James Kevin Oncken, Attorney-in-Charge         Date Signed
      SBOT No. 15280050
      Roger A. Berger, Attorney-of-Record
      SBOT NO. 02192400

      ATTORNEYS FOR DEFENDANT
      JUAN FRANCISCO MONTALVO, M.D.




AMENDED ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND
GRANTING DEFENDANTS' MOTION FOR PERMISSION TO APPEAL INTERLOCUTORY APPEAL PAGE 4
APPENDIX TAB “C”
                                                                                             FILE COPY




                                        fourth Court of Rppeaffi
                                                *an Rutonto, Texcit
                                                    January 7, 2015

                                                  No. 04-14-00803-CV

                            Juan Francisco MONTALVO, M.D., F.A.C.O.G., et al,
                                              Appellants

                                                          v.

                                                   Gabriela LOPEZ,
                                                      Appellee

                        From the 341st Judicial District Court, Webb County, Texas
                                  Trial Court No. 2013-CVT-000841-D3
                                Honorable Becky Palomo, Judge Presiding

                                                    ORDER

       The appellants' petition for permission to appeal from an interlocutory order is
GRANTED. TEX. R. APP. P. 28.3. "A separate notice of appeal need not be filed" as "a notice
of appeal is deemed to have been filed on [the date of this order]." Id. at 28.3(k). This appeal is
governed by the rules for accelerated appeals. Id.

        The clerk's record and reporter's record are due within ten days from the date of this
order. Id. at 35.1(b). The clerk of this court is directed to file a copy of this order with the trial
court clerk. Id. at 28.3(k).

                                                                Viebridie,
                                                               Sandee Bryan 81
                                                                            Ma41
                                                                               n,
                                                                                44‘
                                                                                  Chief Justice

       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 7th day of January, 2015.

                      oll, 1i Mnot,
                 6`,o< 0 F .41 4111.49.
        ,„74%,' €1.. N .....0 ••,... kJ ^,-#
                                     '..i.7
                                       ..1                                 •
            0I                                                 Keith E. Hottle
        0I                                 It
                                                               Clerk of Court
           i                            :
                                       i
                                      0.CO "


                -4nmomitt0' '
