                                                                                                  ACCEPTED
                                                                                              03-16-00510-CV
                                                                                                    13915805
                                                                                   THIRD COURT OF APPEALS
                                                                                              AUSTIN, TEXAS
                                                                                        11/21/2016 5:37:30 PM
                                                                                            JEFFREY D. KYLE
                                                                                                       CLERK
                           No. 03-16-00510-CV
                       IN THE COURT OF APPEALS
                   FOR THE THIRD DISTRICT OF TEXAS        FILED IN
                                                   3rd COURT OF APPEALS
                            AUSTIN, TEXAS               AUSTIN, TEXAS
______________________________________________________________________________
                                                           11/21/2016 5:37:30 PM
                                                                     JEFFREY D. KYLE
                   STEVE F. MONTOYA, JR., M.D.                            Clerk
                    WEST TEXAS RENAL CARE
                  AND WEST TEXAS NEPHROLOGY
                            Appellants
                               v.
             SAN ANGELO COMMUNITY MEDICAL CENTER
                     AND KIRK BREWER, M.D.
                            Appellees.
 ____________________________________________________________________________
                      From the 119th Judicial District Court
                          Tom Green County, Texas
                            Cause No. B-15-0285-C
______________________________________________________________________________

                            APPELLANTS BRIEF
______________________________________________________________________________

                                                                       Paul Craig Laird II
                                                                        SBOT #11795420
                                                     Paul Craig Laird II Law Firm, PLLC
                                                               800 West Airport Freeway
                                                                      Suite 800, LB 6015
                                                                     Irving, Texas 75062
                                                             Telephone: (972) 554-0929
                                                              Facsimile: (214) 260-4935
                                                                        pcl880@aim.com
                                                                 Attorney for Appellants
                                                                                Paul Smith
                                                                         SBOT #00791692
                                                                800 West Airport Freeway
                                                                                  Suite 860
                                                                       Irving, Texas 75062
                                                               Telephone: (214) 922-0220
                                                                Facsimile: (214) 922-0225
                                                                 paulsmith214@gmail.com
                                                                Attorney for Appellants

                                             ORAL ARGUMENT REQUESTED
                  IDENTITY OF PARTIES AND COUNSEL


       The following is a complete list of the names and addresses of all parties to
the Trial Court’s Final Judgment and their counsel of record:

APPELLANTS

      1. The Appellants are Steve F. Montoya, Jr., M.D. (an individual); West
         Texas Renal Care (a Texas Corporation) and West Texas Nephrology (a
         Texas Corporation)

      2. Appellants are represented by the following counsel of record:

         Paul Craig Laird II, Paul Craig Laird II Law Firm, PLLC, 800 West
         Airport Freeway, Suite 800 Irving, Texas 75062 and Paul Smith, 800
         West Airport Freeway, Suite 880, Irving, Texas 75062.

APPELLEES

      1. Appellees are San Angelo Community Medical Center (a Delaware
         Corporation authorized to do business in the State of Texas) and Kirk
         Brewer, M.D. (an individual).

      2. Appellee Kirk Brewer, M.D. is represented by the following counsel of
         record:

         Robert B. Wagstaff
         McMahon Surovik Suttle, P.C.
         400 Pine Street, Suite 800
         Abilene, Texas 79601

         Appellee San Angelo Community Medical Center is represented by the
         following counsel of record:

         James J. McGoldrick
         Jones Carr McGoldrick, LLP
         5910 N. Central Expressway, Suite 1700
         Dallas, Texas 75206


                                         ii
                         TABLE OF CONTENTS

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

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

INDEX OF AUTHORITIES…………………….…………………..v, v, vi, vii, viii

STATEMENT OF THE CASE..……………………………………………….….1

ISSUES PRESENTED…..……...……………………………………………..…..2

  1.   The trial court erred in granting the Motion to Dismiss per the Texas
       Citizens Participation Act Tex.Civ.Prac. & Rem. Code §§27.001 et. seq.
       and the final Order of Dismissal pursuant to Tex.R.Civ.Proc. 91(a)
       dismissing all causes of action against Kirk Brewer, M.D.

  2.   The trial court erred in granting San Angelo Community Medical Center
       a Summary Judgment based on the court’s rulings for Kirk Brewer, M.D.
       when Plaintiffs raised sufficient issues of law and evidentiary facts to
       deny the Defendants Motion for Summary Judgment.

  3.   The Defendant Dr. Brewer’s Motion to Dismiss under Tex.R.Civ.Proc.
       91(a) and Tex.Civ.Prac. & Rem. Code §§27.001 et. seq. was untimely
       filed and untimely heard by the Court.

STATEMENT OF FACTS……………………………………………………….3

SUMMARY OF ARGUMENT…………………………………………………..5

ARGUMENT……………………...……………………………………….…......7

CONCLUSION AND PRAYER………………………………………………...50

CERTIFICATE OF COMPLIANCE……………………….…………………….51

CERTIFICATE OF SERVICE…………………………………………………..51

APPENDIX…………………………………………..………………………52, 53


                                     iii
                        INDEX OF AUTHORITIES


CASES                                                               Page(s)

Armstrong v. Hixon,
     206 S.W.3d 175 (Tex. App. Corpus Christi 2006)………………………...43

Bank One, Texas, N.A. v. Stewart,
     967 S.W.2d 419, 430-31 (Tex.App. Houston [14 Dist.] 1998, pet.
     denied)…………………………………………………………………30, 34

Bart Turner & Assocs. v. Krenke,
      No. 3:13–CV–2921–L, 2014 WL 1315896……………………………….35

Better Business Bureau of Metropolitan Dallas, Inc. v. Ward,
      401 S.W.3d 440, 443 (Tex.App.—Dallas 2013, pet. denied)……………..20

Bliss v. NRG Industries,
       162 S.W.3d 434 (Tex. App. Dallas 2005)………………………………..43

Boudreau v. Fed. Trust Bank,
     115 SW3d 740, 743 (Tex. App.- Dallas 2003, pet. Denied)……………....45

Bourland v. State of Texas,
      528 S.W.2d 350, 354 (Tex.Civ.App.—Austin 1975, writ ref'd n.r.e.)…….36

Boyles v. Kerr,
      855 S.W.2d 593, 601 (Tex.1993)………………………………………….35

Brownlee v. Brownlee,
     655 S.W. 2d 111, 112 (Tex. 1984)……………………………………..….46

Cedyco Corp. v. Whitehead,
     253 S.W.3d 877 (Tex. App. Beaumont 2008)…………………………......43

Cheniere Energy, Inc. v. Lotfi,
     449 S.W.3d 210, 214 (Tex.App.—Houston [1st Dist.] 2014, no pet.)……18



                                     iv
City of Dallas v. Sanchez,
       494 S.W.3d 722, 724 (2016)…………………………..……6, 13, 16, 29, 43

City of Houston v. Clear Creek Basin Auth.,
       589 SW29 671, 678 n.5 (Tex. 1979) Tex.R.Civ. 166a(a)……………26, 43

City of Keller v. Wilson,
       168 SW3d 802, 816 (Tex. 2005)………………………………..…….…..44

Drake Ins. Co. v. King,
     606 S.W.2d 812, 817 (Tex.1980)…………………………………………39

Farlow v. Harris Methodist Fort Worth Hosp.,
     284 S.W.3d 903, 910 (Tex.App. Fort Worth,2009)……………………….30

G & H Towing Co. v. Magee,
     347 SW3d 293, 296-97 (Tex.2011)…………………………………….26, 43

Gibson v. Methodist Hosp.,……………………………………………….…27, 43
     822 SW2d 95, 17 U.C.C. Rep. Serv. 2d 81 (Tex. App.-Houston [1st Dist.}
     1991, writ denied).

Hicks v. Group & Pension Administrators, Inc.,
      473 S.W.3d 518, 529 (Tex.App.-Corpus Christi, 2015)…………………..20

In re E.I. DuPont de Nemours & Co
       136 S.W.3d 218, 223 (Tex. 2004) (per curiam)……………………..……19

In Re Estate of Check,
      438 SW3d at 836…………………………………………………….……..48

In Re Garth,
      214 S.W.3d 190, 192 (Tex.App. Beaumont, 2007)…………….…………32

In Re Lipsky,
      460 S.W.3d 579, 591 (Tex. 2015)…….…6, 14, 17, 18, 26, 28, 33, 43, 48, 50

In Re Memorial Hermann Hospital System,
      464 S.W. 3d 686 (2015)………………5, 6, 12, 13, 14, 16, 25, 26, 29, 32, 43


                                      v
Kirby v. Cruce,
      688 S.W.2d 161, 164 (Tex.App.—Dallas 1985, writ ref'd n.r.e.)………36

Lee Homes of Limestone County, Inc. v. First National Bank,
     2015 WL 5175469, at *2 (Tex.App.-Waco 2015, no pet.)………………39

Limestone Prods. Distrib., Inc. v. McNamara,
      71 SW3d 308, 311 (Tex. 2002)………………………………………..…45

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
     289, SW3d 844, 848 (Tex. 2009)………………………………………….43

Martin v. Commercial Metals Co.,
      138 S.W.3d 619 (Tex. App. Dallas 2004)………………………………...43

Means v. ABCABCO, Inc.,
     315 S.W.3d 209 (Tex. App. Austin 2010)……………………………..…..43

MMP, Ltd. v. Jones,
    710 SW2d 59, 60 (Tex. 1986)…………………………………………….44

Montemayor v. Ortiz,
     208 S.W.3d 627 (Tex. App. Corpus Christi 2006)…………………….….43

Myers v. Southwest Bank,
     2014 WL 7009956, at *6 (Tex.App.-Fort Worth 2014, pet. denied)…39, 40

Nixon v. Mr. Prop. Mgmt. Co.,
      690 SW2d 546, 548 (Tex. 1985)………………………………………..…44

Pacific Mut. Life Ins. Co. v. Ernst & Young & Co.,
      10 S.W.3d 798, 809 (Tex.App. Dallas,2000)………………..…………33, 35

Paulsen v. Yarrell,
      455 SW3d 192 (Tex.-App.-Houston [1st Dist.] 2014, no pet.)……………..48

Radio Station KSCS v. Jennings,
      750 S.W.2d 760 (Tex. 1988)……………………….………………….45, 46



                                     vi
Rhone-Poulenc, Inc. v. Steel,
     997 SW2d 217, 223 (Tex. 1999)…………………………………………..45

Roark v. Allen,
     633 S.W.2d 804, 810 (Tex .1982)………………………………………..35

Serafine v. Blunt,
      466 S.W.3d 352, 393-94 (Tex.App.-Austin 2015, no pet.)…..….20, 21, 22

Sloat v. Rathbun,
       2015 WL 6830927, at *6-7 (Tex.App.-Austin 2015, pet. filed)……18, 23, 24

Sosa v. Central Power & Light,
      909 S.W.2d 893, 895 (Tex. 1995)………………………………………….39

Spectators' Communication Network Inc. v. Colonial Country Club,
      253 F.3d 215, 220-221 (5th Cir. 2001)……………………………………..29

State v. Ford Motor Co.,
       169 S.W.2d 504, 513-14 (Tex.Civ.App. 1943)……………...…………33, 34

Sw. Elec. Power Co. v. Grant,
      73 S.W.3d 211, 215 (Tex. 2002)…………………….……………….….…47

Tello v. Bank One, N.A.,
       218 S.W.3d 109, 113 (Tex. App.—Houston [14th Dist.] 2007, no pet.……47

Tervita, LLC v. Sutterfield,
      482 S.W.3d 280, 286-87 (Tex.App.-Dallas 2015, pet. denied)……...…21, 22

Transcontinental Gas Pipeline Corp. v. Texaco, Inc.,
      35 S.W.3d 658, 669 (Tex.App. Houston [1 Dist.] 2000, rev. denied)……31

Wooley v. Schaffer,
     447 S.W.3d 71, 76 (Tex.App. Houston [14 Dist.] 2014)………….…..34, 35

RULES

Tex.Civ.Prac. & Rem. Code §§27.001 et. seq.
     ……………………………………….1, 2, 3, 6, 14, 16, 19, 20, 47, 48, 49, 50
                                     vii
Tex.R.Civ.Proc. 91(a)……….………………………………….1, 2, 3, 6, 16, 47, 49

Tex.R.Civ. 166a(a)…………………………………………….………….27, 30, 43

Texas Rule of Civil Procedure 47(a)………………………………..……………35

42 USC 1395cc …………………………………………..………………………40

42 USC 1395cc(a)(1)(I)(iii)……………………………………………….40, 41, 42




                             viii
                         STATEMENT OF THE CASE

      This is an appeal of the final Order of Dismissal per the Texas Citizens

Participation Act Tex.Civ.Prac. & Rem. Code §§27.001 et. seq. (CR 194) and the

Tex.R.Civ.Proc. 91(a) final Order of Dismissal (CR 196) dismissing all causes of

action against Kirk Brewer, M.D. Both Orders were signed on February 8, 2016.

The Order at (CR 196) states that the “Motions are so intertwined as to not allow

segregation.” Thus argument of Dr. Montoya is on both Orders. This is also an

appeal of the Summary Judgment (CR 336) that granted San Angelo Community

Medical Center a Judgment dismissing all causes of action because of the orders

dismissing the claims against Kirk Brewer, M.D.       The Summary Judgment was

signed on May 17, 2016 (CR 336) and a Motion for New Trial (CR 344) and an

Amended Motion for New Trial were filed by Plaintiffs (CR 349) and were denied

(CR 363).


      The underlying causes of action in this case are:

      1) Tortious Interference with current and prospective business/patient

relations; 2) Illegal and anticompetitive actions of the Defendants; 3) Defendants

defamation per se; 4) Malice; 5) Business Disparagement against the Plaintiffs; 6)

Restraint of Trade- (Monopolization/Attempted Monopolization/Conspiracy to

Monopolize); 7) Group Boycott and Conspiracy in Restraint of Trade; 8) Restraint

of Trade/Tortious Interference by violating EMTALA (Emergency Medicine

                                       Page 1
Treatment and Action Labor Act) (CR 160 and 300).

      Plaintiffs timely filed a Notice of Appeal (CR 367). Plaintiffs bring this

appeal seeking a reversal of the trial courts granting of the Motion to Dismiss and

the final Order of Dismissal of all causes of action against Kirk Brewer, M.D. and

the Summary Judgment denying all causes of action against San Angelo

Community Medical Center.


      For ease all Plaintiffs will be referred to as “Dr. Montoya”, Defendant Kirk

Brewer, M.D. will be referred to as “Dr. Brewer” and San Angelo Community

Medical Center will be referred to as “SACMC”.


                             ISSUES PRESENTED
Appellant’s Issues-

1.   The trial court erred in granting the Motion to Dismiss per the Texas Citizens

     Participation Act Tex.Civ.Prac. & Rem. Code §§27.001 et. seq. and the final

     Order of Dismissal pursuant to Tex.R.Civ.Proc. 91(a) dismissing all causes of

     action against Kirk Brewer, M.D.


2.    The trial court erred in granting San Angelo Community Medical Center a

      Summary Judgment based on the court’s rulings for Kirk Brewer, M.D.

      when Plaintiffs raised sufficient issues of law and evidentiary facts to deny

      the Defendants Motion for Summary Judgment.


                                      Page 2
3.    The Defendant Dr. Brewer’s Motion to Dismiss under Tex.R.Civ.Proc. 91(a)

      and Tex.Civ.Prac. & Rem. Code §§27.001 et. seq. was untimely filed and

      untimely heard by the Court.


                           STATEMENT OF FACTS

      Dr. Montoya is a nephrologist in practice at SACMC since 1981. He filed

suit against Dr. Brewer (the hospital Chief of Staff) and SACMC for various Anti-

Competitive actions on July 6, 2015 (CR 7). Defendant SACMC filed Special

Exceptions and an answer on August 14, 2015 (CR 17). The Court granted the

Special Exceptions on December 3, 2015 (CR 75). Dr. Montoya filed a Second

Amended Petition in response to the Court Order on the Special Exceptions (CR

103). Dr. Brewer filed a Motion to Dismiss pursuant to Tex. R. Civ. Proc. 91(a)

and Tex. Civ. Prac. Rem. Code §27.001 et.seq. (CR 76) and then filed an Amended

Motion to Dismiss (CR 119). Dr. Montoya filed a response to the Motion to

Dismiss (CR 94) and a Supplemental Response to the Motion to Dismiss (CR 177).


      Dr. Montoya timely filed before the hearing on the Motion to Dismiss a

Fourth Amended Original Petition (CR 160). The Court granted the Motion to

Dismiss not distinguishing which rule the Court was using to grant the dismissal

(CR 194). The Court specifically said it could not segregate the claims (CR 196).



                                      Page 3
        SACMC filed a untimely Motion to Dismiss (CR 202). SACMC filed a

Motion for Leave to file their Motion to Dismiss (CR 216). At the same time as

filing the Motion to Dismiss SACMC filed a Motion for Summary Judgment (CR

208) based only on the Court granting Dr. Brewer’s Motion to Dismiss. The Court

denied leave to file the Motion to Dismiss of SACMC (CR 335).


        Dr. Montoya filed a response to SACMC’s Motion to Dismiss (CR 331) and

a response to the Motion for Summary Judgment (Supp. CR ______).               Dr.

Montoya timely filed before the Summary Judgment hearing a Sixth Amended

Original Petition (CR 300). The Court granted the Motion for Summary Judgment

of SACMC based on the ruling of dismissing all claims against Dr. Brewer (CR

336).


        Dr. Montoya requested findings of fact and conclusions of law (CR 337) to

allow the court to state the facts and law it relied upon since the Court could not

segregate its prior Order (CR 196) that is the basis of the Summary Judgment. The

court did not file any findings. Dr. Montoya filed a Motion for New Trial (CR

344) and an amended Motion for New Trial (CR 349) and a Motion to Reconsider

Dr. Brewer’s Motion to Dismiss. The Court signed an Order denying the First

Amended Motion for New Trial (CR 363). Dr. Montoya timely filed Notice of

Appeal (CR 367).


                                      Page 4
      Summary of Argument

      Dr. Montoya sued the hospital SACMC and Dr. Brewer based upon causes

of action that were approved by the Texas Supreme Court in the case of a doctor

suing the hospital where he had a medical practice. The exact same causes of

action that were approved by the Texas Supreme Court in In Re Memorial

Hermann Hospital System, 464 S.W. 3d 686 (2015) are Dr. Montoya’s causes of

action. The Court in In Re Memorial Hermann case stated “We hold that Dr.

Gomez’s petition presents multiple viable anti-competitive actions” Id at 713.

Attached as Exhibit 1 to the response to the Motion to Dismiss (CR 232) is a

certified copy of the pleading of Dr. Gomez from the In Re Memorial Hermann

case that was specifically approved by the Texas Supreme Court as viable causes

of action. The causes of action approved by the Texas Supreme Court in In Re

Memorial Hermann are:


      (1)   Business Disparagement
      (2)   Defamation
      (3)   Tortious Interference with Prospective Business Relations
      (4)   Improper Restraint of Trade under the Texas Fire Enterprises and
            Anti-Trust Act of 1983.

      Id. At 695-696

      The Petitions (Original through Sixth Amended) (CR 7, 103, 143, 160, 272,

300) of Dr. Montoya followed and alleged the approved Petition of the Texas

Supreme Court In Re Memorial Hermann. Dr. Montoya is alleging the approved
                                    Page 5
anti-competitive and defamation causes of action of the Texas Supreme Court, by a

physician and his entities in which he practices, suing the hospital where he

practices medicine, and Dr. Brewer as Chief of Staff for Anti-Competitive actions.

This case is exactly the In Re Memorial Hermann case approved by the Texas

Supreme Court. The Texas Supreme Court determined In Re Memorial Hermann

in 2015 allowing Anti-Competitive actions against a hospital and its opinion has

not been reversed.


      Using the standards set forth in City of Dallas v. Sanchez 494 S.W.3d 722,

724 (2016) for dismissal under Tex.R.Civ.Proc. 91(a) Dr. Montoya’s pleadings,

(CR 7, 103, 143, 160, 272, 300) taken as true, with the inferences reasonably

drawn from them entitle Dr. Montoya to the relief sought in his petitions and

reasonable people could believe the facts pled.


      Using the standard set forth in In Re Lipsky, 460 SW3d 579 (Tex.2016) for

determination of whether the Texas Anti-Slapp Statute applies Tex.Civ.Prac. &

Rem. Code §§27.001 et. seq. Dr. Montoya proved through his pleadings and

affidavits attached to the responses to the Motion to Dismiss (CR 94, 225) and

Supplemental Response (CR 177) the case is not one seeking to intimidate or

silence the public but is a case of economic retaliation and is based upon valid

claims that have approved causes of action as set forth in In Re Memorial Hermann


                                       Page 6
                                ARGUMENT

A.    Summary of Factual Allegations by Dr. Montoya in his Fourth
      Amended Petition (CR 160) for Dr. Brewer. For SACMC the Sixth
      Amended Original Petition (CR 300)


      Dr. Montoya has practiced at San Angelo Community Hospital since 1981.

Until 2007 Dr. Montoya would receive 10-20 calls from the emergency room

per month to treat either new or existing patients at the San Angelo

Community Medical Center. Since 2008 Dr. Montoya has only received one call

from the emergency room or a hospitalist for consultation as a nephrologist, and

one time for treatment of an existing patient that suffered with kidney

disease/problems. The lack of referrals caused substantial injury to Dr. Montoya

and damaged his ability to compete, because he depended on these referrals and

consults to build and keep his practice. A majority of patients who need kidney

treatment suffering from kidney disease in a hospital will later need continuing

care for their kidneys or related problems; the most common of such continuing

treatments is kidney dialysis. A typical kidney dialysis patient will need

treatment for a n average of 6 years, and each such patient would mean

revenue to Dr. Montoya's practice of approximately $100,000 per year. Dr.

Montoya estimates that he has lost at least 100 long term kidney dialysis

patients from 2007 to the present due to the Defendants' anticompetitive scheme

to refuse to give him patient referrals or consults from the emergency room of
                                     Page 7
SACMC. D r . M o n t o y a estimates that this lack of referrals has thus cost him

$3,000,000 to $6,500,000 over that period of time.


      Dr. Montoya in developing, building and keeping his practice, has always

taken patients as an on-call staff attending physician from the emergency

room/department of SACMC.


      In developing and building a practice Dr. Montoya as a nephrologist

wanted long term kidney dialysis patients to treat in his practice. Referral from

hospitals and area physicians is extremely important to a nephrologist to building

and keeping a practice. The ability to obtain referrals from a hospital and area

physicians is a primary source of patients with kidney disease. Defendants in this

case conspired to deprive Dr. Montoya of referrals needed for his nephrology

practice to continue. This case is for the anticompetitive actions of the Defendants

posing a danger of monopolization or attempted monopolization of patient

choice and causing patients to pay more for medical care and injuring consumer

patients.


      Dr. Montoya during his 36 year career in San Angelo built his practice

including a dialysis unit that can serve 24 patients per shift from referring

physician and referrals of patients from the emergency room/department.



                                       Page 8
      Dr. Brewer is an employee and/or owner of a group of hospitalists

affiliated with, and possibly created by, SACMC. Dr. Brewer was the chief of

staff of SACMC when this case was filed and head of the hospitalist group that

practices at SACMC. Dr. Montoya has been denied the referral of patients that

come into the emergency room with kidney problems/illness/disease by the

hospitalists controlled by Dr. Brewer and SACMC. These patients in need of a

nephrologists care are being referred to the hospital affiliated physician group in

competition with Dr. Montoya. Even Dr. Montoya's current patients are being

referred to the hospitalist/hospital affiliated group.


      At all relevant times Dr. Kirk Brewer, himself, as a principal officer of

Community Medical Associates, SACMC and Chief of Staff of SACMC and

head of the hospitalist system at SACMC and the agents/employees of SACMC

working under his control, direction, or in furtherance of unlawful and improper

actions was and is employed by and acting in furtherance of the business of

(SACMC) and its affiliated medical practice(s).


      Dr. Montoya's skill as a nephrologist was, until the hospital created its

affiliated medical practice and/or entered into an exclusive contract with the

group of hospitalists affiliated and/or managed by Dr. Brewer, a marketing asset

for SACMC. Dr. Montoya is the only Spanish speaking nephrologist at SACMC.


                                         Page 9
Dr. Montoya received his rotating share of referrals a s r e q ui r e d b y F e d e r a l

L a w c a l l e d EM TA L A , of patients with kidney disease/illness/failure until

SACMC created its affiliated practice groups and/or entered into an exclusive

contract with the group of hospitalists affiliated and/or managed by Dr. Brewer.


       One example of Dr. Brewer’s actions- On January 25, 2014 at 8:10 a.m.

Kirk Brewer, M.D. took over the hospitalist care of a patient b e i n g s e e n b y

Dr. Montoya in the hospital (SACMC) .                            When Dr. Brewer’s

rotation as on call hospitalist started he without ever seeing the patient or the

chart cancelled Dr. Montoya's consult and treatment ordered by Dr. Montoya and

consulted another nephrologist.          This removal proves actual anti-competitive

action of Dr. Brewer against Dr. Montoya. Dr. Montoya went to the call board a t

t h e h o s p i t a l and witnessed his name on the call board as the nephrologist on

call on January 24 and 25, 2014.              SACMC is required to have an official

EMTALA Medicare call list for on call physicians for the SACMC to take

Medicare patients and be paid for the medicare patients.


       Dr. Montoya’s name was on the call list but he was intentionally ignored.

T h e r e m o v a l o f D r . M o n t o y a a s t h e patients p h y s i c i a n s also violates

a patient's right to choose their physician. This list was followed until Dr. Brewer

came to SACMC and took charge of hospitalists. The nephrologist he brought in

                                            Page 10
for consult after removing Dr. Montoya is one that is in a group that Kirk Brewer,

M.D. has a contract for paid services with Dr. Brewer. Dr. Brewer did not see

the patient when he removed D r . M o n t o y a as the treating nephrologist; he

issued the change via a telephone order. Kirk Brewer, M.D. without seeing the

patient, r e mo v e d D r . M o n t o ya a s t h e patient's doctor.   This change of

nephrologist was for Kirk Brewer, M.D.'s economic gain and caused Dr.

Montoya economic loss. Attached as Exhibit B (CR 175-176 and 325-326) to

the petition is a true and correct copy of the redacted hospital record showing

the facts on January 25, 2014 as stated above.


      Kirk Brewer, M.D. by his actions of removing Dr. Montoya as the

nephrologist published a statement that Dr. Montoya was not a competent

nephrologist to treat patients coming to the San Angelo Community Medical

Center emergency room. Kirk Brewer, M.D. was aware that his actions would

become known to the staff physicians of San Angelo Community Medical Center

and that he was by conduct and a whisper campaign saying Dr. Montoya should

not be allowed to treat patients at San Angelo Community Medical Center. These

remarks caused hospitalists and other doctors at SACMC, as well as doctors and

nurses in the SACMC emergency department, to cease and refuse to (a) admit

patients to the care of Dr. Montoya, and (b) not to refer patients to Dr. Montoya

for nephrology consults.
                                        Page 11
      Attached to the petition as Exhibit C (CR 175) is the true and correct

sworn statement that an existing patient of Dr. Montoya, Mrs. Welch tried to see

Dr. Montoya in the emergency room of San Angelo Community Medical Center

and that the emergency room would not call Dr. Montoya to treat his existing

patient. Mrs. Welch is over 90 years of age and Dr. Montoya has treated her for

at least 20 years.


      Another patient of Dr. Montoya, whose name is withheld per privacy

rights, who is also over 90 years of age and has been a Dr. Montoya patient for at

least 10 years requested Dr. Montoya when she went to the emergency room and

she also was not allowed to see Dr. Montoya her personal physician.


      These facts as stated in the Petition (CR 160) prove the defamation claim

against Dr. Brewer dismissed under the Anti-Slapp Statute was in error. The

“whisper campaign” was only for an economic reason and not made as a truthful

statement above Dr. Montoya. The Whisper Campaign was confirmed in Dr.

Hunt’s affidavit (CR 179). It also proves that Dr. Montoya’s claims under In Re

Memorial Hermann standard are valid claims.         They should not have been

dismissed under Tex.R.Civ.Proc. 91(a).

      The above facts are proven through the pleadings (CR 160 and 272) and the

affidavits of Dr. Montoya (CR 96, 180, 250) and Dr. Hunt (CR 179) and the sworn

                                     Page 12
statement of a patient Mrs. Welch (CR 175).

      Causes of Action

      Dr. Montoya sued the hospital SACMC and Dr. Brewer based upon causes

of action that were approved by the Texas Supreme Court in the case of a doctor

suing the hospital where he had a medical practice. The exact same causes of

action that were approved by the Texas Supreme Court in In Re Memorial

Hermann Hospital System, 464 S.W. 3d 686 (2015) are Dr. Montoya’s causes of

action. The Court in In Re Memorial Hermann case stated “We hold that Dr.

Gomez’s petition presents multiple viable anti-competitive actions” Id at 713.

Attached as Exhibit 1 to the response to the Motion to Dismiss (CR 232) is a

certified copy of the pleading of Dr. Gomez from the In Re Memorial Hermann

case that was specifically approved by the Texas Supreme Court as viable causes

of action. The causes of action approved by the Texas Supreme Court in In Re

Memorial Hermann are:

         (5) Business Disparagement
         (6) Defamation
         (7) Tortious Interference with Prospective Business Relations
         (8) Improper Restraint of Trade under the Texas Fire Enterprises and
             Anti-Trust Act of 1983.

      Id. At 695-696

      Using the standards set forth in City of Dallas v. Sanchez 494 S.W.3d 722,

724 (2016) for dismissal under Tex.R.Civ.Proc. 91(a) Dr. Montoya’s pleadings,


                                     Page 13
taken as true, with the inference reasonably drawn from them entitle Dr. Montoya

to the relief sought in his petitions and reasonable people could believe the facts

pled.

B.      Approved Causes of Action Under In Re Memorial Hermann.
        Dr. Montoya’s Causes of Action.

        The causes of action in this suit are:

        1) Tortious Interference with current and prospective business/patient

relations; 2) Illegal and anticompetitive actions of the Defendants; 3) Defendants

defamation per se; 4) Malice; 5) Business Disparagement against the Plaintiffs; 6)

Restraint of Trade- (Monopolization/Attempted Monopolization/Conspiracy to

Monopolize); 7) Group Boycott and Conspiracy in Restraint of Trade; 8) Restraint

of Trade/Tortious Interference by violating EMTALA (Emergency Medicine

Treatment and Action Labor Act) (CR 160 and 300).


C. The Texas Citizens Participation Act standard setforth in In Re Lipsky, 460 S.W.3d 579
(Tex.2016)

             “As already mentioned, HN3 the Texas Citizens Participation Act or TCPA protects
             citizens from retaliatory lawsuits that seek to intimidate or silence them on matters
             of public concern. See House Comm. on Judiciary & Civil Jurisprudence, Bill
             Analysis, Tex. H.B. 2973, 82nd Leg., R.S. (2011). The Act provides a special
             procedure for the expedited dismissal of such suits. A two-step process is initiated
             by motion of a defendant who believes that the lawsuit responds to the defendant's
             valid exercise of First Amendment rights. Under the first step, [**8] the burden is
             initially on the defendant-movant to show "by a preponderance of the evidence"
             that the plaintiff's claim "is based on, relates to, or is in response to the [movant's]
                                                        4                         5
             exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of




                                                 Page 14
                       6
          association." Tex. Civ. Prac. & Rem. Code § 27.005(b). If the movant is able to
          demonstrate that the plaintiff's claim implicates one of these rights, the second step
          shifts the burden to the plaintiff to "establish[] by clear and specific evidence a
          prima facie case for each essential element of the claim in question." Id. §
          27.005(c).

          HN7 In determining whether the plaintiff's claim should be dismissed, the court is to
          consider the pleadings and any supporting and opposing affidavits. Id. § 27.006(a).
          Moreover, the motion to dismiss ordinarily suspends discovery, id. § 27.003(c),
          although the statute leaves the possibility for a court to order limited discovery for
          "good cause" as it relates to the motion itself, id. § 27.006(b). Within defined time
          limits, the court must then rule on the motion and must dismiss the plaintiff's claim if
          the defendant's constitutional rights are implicated and the plaintiff has not met the
          required showing of a prima facie case. Id. § 27.005. The determination is to be
          made promptly, ordinarily within 150 days of service of the underlying legal action.
          See id. §§ 27.003(b), .004(a), .005(a).

          In this proceeding, only the second step is at issue—the question being whether
          the plaintiff has met its burden of "establish[ing] by clear and specific evidence a
          prima facie case for each essential element of the claim in question." Id. §
          27.005(c). The parties disagree about the evidentiary burden this language
          imposes. Lipsky argues that the phrase "clear and specific evidence" elevates the
          evidentiary standard, requiring Range to produce direct evidence as to each
          element of its claim. Range, on the other hand, argues that circumstantial evidence
          and rational inferences may be considered by the court in determining whether
          clear and specific evidence exists and that the TCPA's prima-facie-case
          requirement does not impose a higher or unique evidentiary standard. The dispute
          mirrors a similar disagreement among the courts of appeals.”
          (In Re Lipsky at 586-587)
          4
           HN4 The "right of free speech" refers to communications related to "a matter of public
          concern" which is defined to include an issue related to: "(A) health or safety; (B)
          environmental, economic, or community well-being; (C) the government; (D) a public official
          or public figure; or (E) a good, product, or service in the marketplace." Id. § 27.001(3),
          (7)(A)—(E).

          5
           HN5 The "right to petition" refers to a wide range of communications relating to judicial,
          administrative, or other governmental proceedings. Id. § 27.001(4).

          6
           HN6 The "right of association" refers to people "collectively express[ing], promot[ing],
          pursu[ing], or defend[ing] common interests." Id. § 27.001(2).


      In this case Dr. Montoya conclusively proved through his factual statements

in pleadings (Fourth Amended and Sixth Amended Original Petition (CR 160 and

300) and affidavits attached to his response (CR 94) and Supplemental Response to




                                               Page 15
the Motion to Dismiss in (CR 177) that there is direct and circumstantial evidence

to allow the suit to go forward.


      Clear and Convincing Evidence of Dr. Montoya petitions on file and his and

Dr. Hunt’s affidavits prove that this case should not have been dismissed under

Tex.Civ.Proc.91(a) or Tex.Civ.Prac. Remedies Code §27.001 et. seq.


      In the response to the Motion to Dismiss (CR 94) Dr. Montoya’s Fourth

Amended Petition (CR 160) and his affidavit (CR 97) proved that this case is a

legitimate lawsuit based upon the In Re Memorial Hermann causes of action (see

page 19 above). Dr. Montoya in the Fourth Amended Original Petition (CR 160)

specifically addressed the factual allegations of how Dr. Brewer and SACMC

harmed him by interfering with his ability to obtain new patients out of the

emergency room referral and make a living as a nephrologist (see facts starting

page 7 above). Dr. Montoya’s active pleading at the time of the hearing on the

Motion to Dismiss was the Fourth Amended Petition (CR 160). A petition is

evidence to keep a Motion to Dismiss from being granted City of Dallas at 724-

725. In Re Lipksy at 586-587. Then Dr. Montoya’s Supplemental Response to the

Motion to Dismiss (CR 177) filed an affidavit of an independent physician, John

Hunt, M.D. stating specifically he (Dr. Hunt) was aware of the whisper campaign

that Dr. Montoya was not to be referred any patients from the emergency room


                                     Page 16
(CR 179). Also Dr. Montoya filed a Supplemental Affidavit that Dr. Brewer had

stolen his patient (CR 180) attached to the affidavit, (redacted patient name for

HIPAA privacy requirements), were patient records showing Dr. Montoya had

seen a patient referral out of the emergency room as Chief of Staff and Chief

Hospitalist Dr. Brewer removed Dr. Montoya as the nephrologist caring for the

patient. The Whisper Campaign was economic activity not a free speech activity.


      This evidence was clear and convincing and the Court should have denied

Dr. Brewer’s Motion to Dismiss. Wherefore this Court should reverse the Motion

to Dismiss.


D.    Plaintiffs’ Business Disparagement and Defamation Claims Should Not
      Be Dismissed

       “The TCPA's purpose is to identify and summarily dispose of lawsuits

designed only to chill First Amendment rights, not to dismiss meritorious

lawsuits.” In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015) (emphasis added), citing

Tex. Civ. Prac. & Rem. Code § 27.002 (balancing “the constitutional rights of

persons to petition, speak freely, associate freely, and otherwise participate in

government to the maximum extent permitted by law” against “the rights of a

person to file meritorious lawsuits for demonstrable injury”). The TCPA is not

applicable to this case, as Plaintiff’s causes of action are primarly concerned with

Defendants’ anticompetitive actions, and injury to competition in the relevant

                                      Page 17
markets of nephrology services and referrals for nephrology services in San

Angelo, Texas.     As Plaintiff’s Fourth Amended Petition makes clear, the

conspiracy which Defendants perpetrated to deprive Dr. Montoya of referrals

began in 2007.     Although Plaintiff details some specific defamations which

occurred in 2014, those defamations are merely representative of the

anticompetitive scheme to which Dr. Montoya was being subjected. Defendants’

group boycott and monopolization/attempted monopolization of the relevant

market began much earlier, so even if Plaintiff’s pleadings do not set forth a prima

facie case of defamation and business disparagement, Plaintiff’s antitrust claims

should not be dismissed because they are not based on those instances of

defamation.


      In any event, Plaintiff has set forth a prima facie case of defamation and

business disparagement by clear and specific evidence in his affidavit and Fifth

Amended Petition. The “clear and specific” evidence which is required to pass a

TCPA challenge can be contained in the plaintiff’s pleadings or in affidavits. In re

Lipsky, 460 S.W.3d 579, 591 (Tex. 2015). In determining if the “clear and specific

evidence” standard is met, the court must view the pleadings in the light most

favorable to the party opposing the TCPA motion. Sloat v. Rathbun, 2015 WL

6830927, at *3 (Tex.App.-Austin, 2015) (“we view the pleadings in the light most

favorable to [the non-movant]; i.e., favoring the conclusion that her claims are not
                                      Page 18
predicated on protected expression.”); see also Cheniere Energy, Inc. v. Lotfi, 449

S.W.3d 210, 214 (Tex.App.—Houston [1st Dist.] 2014, no pet.) (reviewing

pleadings and evidence in light most favorable to non-movant)

      A prima facie standard generally requires only the “minimum quantum of

evidence necessary to support a rational inference that the allegation of fact is

true.” In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015), quoting In re E.I. DuPont de

Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (per curiam). “In a defamation

case that implicates the TCPA, pleadings and evidence that establishes the facts of

when, where, and what was said, the defamatory nature of the statements, and how

they damaged the plaintiff should be sufficient to resist a TCPA motion to

dismiss.” In re Lipsky, 460 S.W.3d 579, 591 (Tex. 2015).


      Plaintiff has plainly satisfied this requirement.    As shown in Plaintiff’s

Fourth Amended Petition, Dr. Brewer’s defamation was published by conduct

when he removed Dr. Montoya from consulting with a patient on January 25, 2014

at 8:10 a.m. The defamation was published to the hospitalist overseeing that

patient, and the nephrologists who was eventually called in to consult as a

replacement for Dr. Montoya.      The defamation was eventually spread to all

hospitalists and emergency room doctors at SACMC. Fourth Amended Petition, p.

8, ¶ 7.13 (CR 167). Dr. Montoya has also set forth a detailed calculation and

explanation of the damages he has suffered as a result of the Defendants’ scheme
                                      Page 19
to deprive him of nephrology referrals and consults. With regard to the January

2014 defamation, Plaintiff has established his prima facie case with clear and

specific evidence.


E.    Even if Plaintiff’s Defamations Are Dismissed, Plaintiff’s Remaining
      Claims Are Not Subject to the TCPA

      The TCPA is clearly meant to apply to individual claims, not to an entire

lawsuit when allegedly defamatory statements are only important to certain claims.

Breach of contract claims, for example, would not ordinarily be dismissed merely

because a Plaintiff failed to plead a prima facie defamation case under the TCPA.


      The TCPA’s definition of “legal action” makes this clear. The TCPA states

that “If a legal action is based on, relates to, or is in response to a party's exercise

of the right of free speech, right to petition, or right of association, that party may

file a motion to dismiss the legal action.”       Tex. Civ. Prac. & Rem. Code §

27.003(a).


      The TCPA then defines a “Legal action” as “a lawsuit, cause of action,

petition, complaint, cross-claim, or counterclaim or any other judicial pleading or

filing that requests legal or equitable relief.” Tex. Civ. Prac. & Rem. Code §

27.003(a).




                                        Page 20
      The only cases which have interpreted the TCAP’s definition of “legal

action” have held that the term “is broad and evidences a legislative intent to treat

any claim by any party on an individual and separate basis.” Hicks v. Group &

Pension Administrators, Inc., 473 S.W.3d 518, 529 (Tex.App.-Corpus Christi,

2015), citing Better Business Bureau of Metropolitan Dallas, Inc. v. Ward, 401

S.W.3d 440, 443 (Tex.App.—Dallas 2013, pet. denied).               In Hicks, the court

individually examined each of the claims which allegedly violated the TCPA and

dismissed two of those claims while refusing to dismiss two other claims because

the TCPA challenge to those claims was not timely filed.


      Writing a concurrence in the case of Serafine v. Blunt, 466 S.W.3d 352, 393-

94 (Tex.App.-Austin 2015, no pet.), Justice Pemberton wrote that where a “’legal

action’ is based on, relates to, or is in response to” (whatever that phrase may

mean) both expression protected by the Act and other unprotected activity, the

“legal action” is subject to dismissal only to the extent it ‘is based on, relates to, or

is in response to’ the protected conduct, as opposed to being subject to dismissal in

its entirety” Id. at 394. Justice Pemberton showed that this result finds support in

several features of the the TCPA's text, and he explained as follows:


      The first is that the TCPA defines “legal action”—that which is subject to
      dismissal—both expansively and variously, as previously noted, referring to
      everything from an entire action or proceeding to particular facts that
      underlie a claim or cause of action. This nomenclature contemplates the
                                        Page 21
      drawing of distinctions not only between claims, but also between factual
      theories, as here.

      Adding further support to this construction are the dual overarching
      purposes that the Legislature has declared the TCPA is to serve: “encourage
      and safeguard the constitutional rights of persons to petition, speak freely,
      associate freely, and otherwise participate in government to the maximum
      extent permitted by law, at the same time, protect the rights of a person to
      file meritorious lawsuits for demonstrable injury.” Neither purpose is
      advanced by holding that a claim is wholly subject to dismissal merely
      because it partly “is based on, relates to, or is in response to” protected
      expression under the Act. Nor would these purposes be served by the
      converse holding that the claim is wholly beyond the Act merely it “is based
      on, relates to, or is in response to” some unprotected activity.

      Id. at 393-394. The Serafine court later noted that “longstanding principles

of Texas jurisprudence” counsel against “a construction of the TCPA that would

mandate presumptive dismissal of an entire claim merely because its factual

underpinnings might include even one allegation that implicates the Act's

protections.” Id. at 394.


      Several cases have applied the TCPA as Justice Pemberton interprets it. For

example, in Tervita, LLC v. Sutterfield, 482 S.W.3d 280, 286-87 (Tex.App.-Dallas

2015, pet. denied), the court dismissed some of the plaintiff’s claims based on

conduct that occurred during a TDI-WC hearing, but refused to dismiss other

claims because the movant had not shown “by a preponderance of the evidence,

that [plaintiff’s] allegations were based on [defendant’s] exercise of its right to

petition or its right of association.” Id. at 287. The Tervita court thus held that the


                                       Page 22
TCPA did not apply to the plaintiff’s “employment discrimination based on (1)

creating a hostile work environment, (2) representing that he was ‘not entitled to

pursue benefits’ under the Texas Worker's Compensation Act, and (3) wrongful

discharge.” Id. at 286; see also Serafine v. Blunt, 466 S.W.3d 352, 359-60

(Tex.App.-Austin 2015) (“to the extent that the Blunts' tortious-interference

counterclaim is based in part on Serafine's alleged threats made outside the context

of the lawsuit, Serafine has not satisfied her initial burden to show that these

portions of the Blunts' counterclaims are subject to the [TCPA].”)


      The same result occurred in Sloat v. Rathbun, 2015 WL 6830927, at *6-7

(Tex.App.-Austin 2015, pet. filed). In that case, the court rejected the defendants’

argument that plaintiff’s entire suit was based on conduct protected under the

TCPA, when the plaintiff had also plead facts which showed stalking and other

tortious conduct.   The court rejected application of the TCPA and stated as

follows:


      [Plaintiff’s claims] are garden-variety tort claims based on specific conduct
      that the [Defendants] have failed to demonstrate, by a preponderance of the
      evidence, implicates the exercise of their rights of “free speech,” “
      association,” or “to petition.”

      Sloat v. Rathbun, 2015 WL 6830927, at *8 (Tex.App.-Austin 2015, review

dismissed). The Sloat court held that the defendant had failed to demonstrate, by a

“preponderance of the evidence,” that the plaintiff’s causes of action for intentional
                                       Page 23
infliction of emotional distress, invasion of privacy by intrusion on seclusion and

by public disclosure of private facts, and tortious interference with contract were

“based on, related to, or in response to” defendants’ “exercise of their right of free

speech, right to petition, or right of association.” Id. at *9. The defendants in Sloat

had thus failed to establish that the TCPA applied to the case. Id.


      In this case, Dr. Brewer’s participation in the conspiracy aimed at depriving

Plaintiffs of referrals for nephrology patients is not based on allegedly defamatory

statements, but it instead is based on his conduct. The TCPA simply does not

apply to such claims, and the court erred when it dismissed all of Plaintiffs’ claims

against Dr. Brewer.


      Wherefore the Plaintiffs request the Order dismissing Dr. Brewer be

reversed and the Summary Judgment in favor of SACMC be reversed.

F.    Appellant Has Valid Causes of Action for Antitrust Violations


      As noted above, Dr. Montoya’s defamation claims are examples of how

Defendant enforced its anticompetitive scheme to deprive Dr. Montoya of

nephrology referrals, but Plaintiff’s antitrust claims are primarily based on the

illegal scheme itself and not individual defamatory statements.          Plaintiff has

plainly set forth valid antitrust claims as they largely mirror the causes of action




                                       Page 24
which the Supreme Court held to be valid in In re Memorial Hermann Hospital

System, 464 S.W.3d 686 (Tex. 2015).

      The causes of action in this case, along with the underlying facts, are very

similar to the causes of action approved by the Supreme Court in In re Memorial

Hermann Hospital. In both cases a doctor who has privileges at a hospital has

alleged that the defendants conspired to prevent him from obtaining patient

referrals. In re Memorial Hermann Hospital at p. 711; Plaintiff’s Sixth Amended

Petition, paragraphs 6.1, 6.2, 6.5 (CR 301-303).         In both cases, the alleged

conspirators consist of the hospital itself, a physician practice group, and individual

doctors who practice at the hospital. In re Memorial Hermann Hospital at p. 695;

Plaintiff’s Sixth Amended Petition (CR 300). In both cases, the doctors have

explained how other doctors how other doctors are a primary source of referrals,

and that these referrals are required for a doctor to be able to compete. In re

Memorial Hermann Hospital at p. 711; Sixth Amended Petition, pp. 6.2, 6.3, 6.8-

6.11 (CR 301-305).       Both lawsuits allege that the defendants intentionally

interfered with the plaintiff’s longstanding practice for obtaining referrals from

other doctors in the community, and that the defendants’ acts constituted a

“concerted effort . . . to restrain competition in and monopolize” the relevant

market. In re Memorial Hermann Hospital at p. 708; Plaintiff’s Sixth Amended

Petition, paragraphs 6.1, 6.2, 6.5, 7.1, 12.7 (CR 301-302, 309, 314). Both lawsuits


                                       Page 25
allege that the defendants impugned the reputation of the plaintiff doctors through

a covert whisper campaign which convinced other doctors not to refer patients to

the plaintiff doctors. In re Memorial Hermann Hospital at p. 696; Plaintiff’s Sixth

Amended Petition, paragraph 6.15-6.17 (CR305-306). Both lawsuits allege that

the plaintiff doctor lost a substantial amount of business from referrals due to the

anticompetitive conspiracy against them. In re Memorial Hermann Hospital at p.

711 (plaintiff alleged that “referral patterns changed” so that he was no longer the

“number one” physician, and that following the conduct at issue, another physician

received more referrals); Plaintiff’s Sixth Amended Petition, paragraph 7.11 and

13.3-13.4 (Dr. Montoya received 10-20 calls per month from the SACMC

emergency room to treat new or existing patients before the anticompetitive

conspiracy began, but he has only received a single call from emergency room for

a new patient since then; all referrals now go to the nephrologists at WTMA). In

both this case and in In re Memorial Hermann Hospital, the plaintiff doctor alleges

that   the   defendants’   acts   “constitute    illegal   monopolization,   attempted

monopolization, and/or conspiracy to monopolize under Texas law.” in In re

Memorial Hermann Hospital; Plaintiff’s Sixth Amended Petition, paragraph 12.7

(CR 314). Plaintiff has plainly stated a valid cause of action under the antitrust

laws of Texas which is in no way designed only to chill Defendants’ First

Amendment rights. “” In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015) (“The


                                       Page 26
TCPA's purpose is to identify and summarily dispose of lawsuits designed only to

chill First Amendment rights, not to dismiss meritorious lawsuits.”) (emphasis

added). The trial court’s granting of Dr. Brewer’s Motion to Dismiss under the

TCPA must be reversed with regard to Dr. Montoya’s antitrust claims. The trial

court’s grant of summary judgment to SACMC, which was based on the improper

dismissal of Dr. Montoya’s antitrust claims, must also be reversed.

G.     Appellant’s Petition Clearly Brought Claims Directly Against SACMC
       for SACMC’s Own Conduct


     SACMC’s Motion for Summary Judgment argued that because the court had

previously dismissed Dr. Brewer from the case, SACMC should also be dismissed

because “Plaintiff alleges no direct or separate liability claims against SACMC

above and apart from the actions of its agent, Brewer.” SACMC’s Motion for

Summary Judgment as a Matter of Law, p. 3 (hereafter “SACMC Motion for

Summary Judgment”) (CR 208). This statement is absolutely false.

       Dr. Montoya’s Sixth Amended Petition makes it clear that SACMC was

being sued for its own conduct, and not merely for the conduct or statements of Dr.

Brewer. For example, Dr. Montoya’s Petition stated as follows:

       The Defendants (SACMC) and Dr. Kirk Brewer, along with WTMA and Dr.
       Brewer’s group of hospitalists, acting by and through its agents/employees/
       principals/officers, acted together to carry out the improper and illegal
       actions and therefore are jointly and severally liable for civil conspiracy in
       carrying out their wrongful activities.


                                       Page 27
       Plaintiff’s Sixth Amended Petition, p. 5, ¶ 6.10 (CR 304). The Petition also

included allegations against all of the Defendants in each of Plaintiff’s causes of

action.   See, e.g., Id., p. 10 (“Defendant’s intentionally interfered with Dr.

Montoya’s longstanding and continuous relationships with patients and referring

physicians from the emergency room/department in a concerted effort to restrain

competition and monopolize the practice of nephrology            . . . in the relevant

market.”) Id., p. 10, , ¶ 7.1 (CR 309).           Similar conduct was alleged against

SACMC for each of Plaintiff’s causes of action against it. As there were only ever

two Defendants in the lawsuit, Dr. Montoya’s allegations against the plural

“Defendants” plainly included SACMC. SACMS’s suggestion that there were no

“direct . . . liability” claims against it is simply false.

       The causes of action against SACMC are all separate and independent of Dr.

Brewer. For example, with regard to Dr. Montoya’s group boycott claim and

claims for monopolization and attempted monopolization, Dr. Montoya has alleged

that SACMC, Dr. Brewer, Dr. Brewer’s group of hospitalists (who will be named

once Defendants have responded to Dr. Montoya’s discovery), and West Texas

Medical Associates conspired to monopolize the relevant markets defined in Dr.

Montoya’s pleadings, and to keep Dr. Montoya from competing in those markets

by a group boycott. See Plaintiff’s Sixth Amended Petition, paragraphs 12-12.8

(CR 313-314) and 13-13.4 (CR 315-317). It is obvious that each member of a


                                           Page 28
conspiracy is liable for their participation in the conspiracy. A conspirator need

not have the same motives as the other conspirators, and need not be at the same

market level of the other conspirators to be a participant in a conspiracy that is

illegal under the Texas antitrust laws. See, e.g., Spectators' Communication

Network Inc. v. Colonial Country Club, 253 F.3d 215, 220-221 (5th Cir. 2001)

(“Antitrust law has never required identical motives among conspirators, and even

reluctant participants have been held liable for conspiracy. For acquiescence in an

illegal scheme is as much a violation of the Sherman Act as the creation and

promotion of one.”)


H.    The Court Improperly Granted a Motion to Dismiss Which
      Masquerades as a Grant of Summary Judgment


      While styled as an order on a summary judgment motion, the court in fact

granted a Motion to Dismiss in favor of SACMC, as the court effectively ruled that

Dr. Montoya’s pleadings did not state a claim against SACMC. The mere fact that

Dr. Brewer was dismissed from the case does not mean that SACMC could not be

liable for its own conduct or the conduct of its other agents besides Dr. Brewer.

SACMC did not present any evidence in support of its summary judgment motion

which showed that it had not engaged in any of the conduct which Dr. Montoya

sued it for; SACMC instead relied solely on the fact that Dr. Brewer was dismissed

from the case under a Texas procedural rule. This “evidence” was in fact no
                                      Page 29
evidence at all, and it resulted in the court in effect granting summary judgment to

SACMC based on Dr. Montoya’s pleadings.


      At the hearing on SACMC’s summary judgment motion, the court

repeatedly stressed its belief that Dr. Montoya was required to plead specific

wrongful acts by an agent of SACMC in order to be able to maintain its lawsuit

against SACMC. However, there is simply no rule in Texas holding that in order

to plead a valid cause of action against a business entity, one must list specific

tortious or wrongful actions which company representatives undertook on behalf of

the organization. Texas pleading precedent clearly allows a party suing a business

entity to merely allege that the business entity itself did something wrongful. See,

e.g., Bank One, Texas, N.A. v. Stewart, 967 S.W.2d 419, 430-31 (Tex.App.

Houston [14 Dist.] 1998, pet. denied) (although no specific acts of company

representative were plead, court stated that “Although the allegations are broad,

both petitions raise a reasonable inference that Bank One and Weyerhaeuser

participated in a conspiracy to defraud LRI by inducing Trendmaker to avoid

liability on the Midland Note. [Plaintiff’s] pleading also gives fair notice of his

claim . . . “); Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903, 910

(Tex.App. Fort Worth,2009) (“Under the doctrine of respondeat superior, an

employer may be vicariously liable for the negligence of its agent or employee

who was acting within the scope of employment even though the employer did not

                                      Page 30
personally commit a wrong.”). Obviously, a corporate entity itself can commit a

wrong. Companies are liable for their own actions or failures to act, and Texas

allows companies to be sued directly for those acts. Transcontinental Gas Pipeline

Corp. v. Texaco, Inc., 35 S.W.3d 658, 669 (Tex.App. Houston [1 Dist.] 2000, rev.

denied) (noting that “in usual business practice,” “companies are liable for their

own acts.”)


      For example, if one sues a construction company for failing to build a fence

properly, one does not have to name in the pleading the company employees who

built the inadequate fence. If one sues a grocery store for selling tainted meat, one

does not have to name the individual butcher who packaged it. Such a rule would

as a practical matter make most lawsuits impossible, as a plaintiff almost never

knows at the pleading stage which employees or agents, if any, were involved in

the wrongful acts.    Because of this, every jurisdiction in the United States,

including Texas, allows a company to be sued for the company’s own wrongful

acts. So long as the lawsuit gives the company notice of what it is being sued for

so that it can prepare a defense, the Texas pleading standards are satisfied. Dr.

Montoya’s lawsuit against SACMC plainly satisfied the Texas notice pleading

standard, and the court’s decision to grant summary judgment to SACMC because

no specific acts of SACMC’s agents were listed in the lawsuit after Dr. Brewer was

dismissed was clear error.

                                       Page 31
I.     Dr. Montoya’s Petition Meets the Texas Notice Pleading Standard

       As noted above, the court’s grant of summary judgment was actually a

dismissal based on the pleadings. While the Defendants and the court persist in

their belief that this case primarily involves defamatory statements, the central

basis of Dr. Montoya’s lawsuit is that the Defendants, along with WTMA and Dr.

Brewer’s group of hospitalists, conspired to deprive Dr. Montoya of referrals for

nephrology patients. Dr. Montoya’s pleading is nearly identical to the plaintiff’s

pleading in In re Memorial Hermann Hospital System, 464 S.W.3d 686 (Tex.

2015), a case in which the Supreme Court specifically held that that a physician

had stated valid claims against a hospital and its co-conspirators. Under Hermann

Memorial, Dr. Montoya’s pleading is plainly sufficient under Texas law.

     While the court need not look beyond Hermann Memorial, cases such as In re

Garth, 214 S.W.3d 190, 192 (Tex.App. Beaumont, 2007) clearly show that Dr.

Montoya’s pleadings for his conspiracy-based antitrust claims meet the Texas

notice pleading standard. The court in Garth stated as follows:

       At the time the trial court entered its order, Plaintiff's First Amended Petition
       was the pleading before the court. Although very broad, the First Amended
       Petition clearly alleges a conspiracy by the individual defendants, asserts
       that they committed overt acts, and seeks punitive damages against them . . .
       Because we construe [Plaintiff’s] pleadings in her favor, we hold that her
       pleadings are sufficient to notify the individual defendants that she sought to
       hold them liable for punitive damages through a conspiracy theory. . .




                                        Page 32
Id. at 192. A similar result was reached in Pacific Mut. Life Ins. Co. v. Ernst &

Young & Co., 10 S.W.3d 798, 809 (Tex.App. Dallas,2000), rev’d on other

grounds, 51 S.W.3d 573 (Tex.,2001). In that case, the court stated as follows:

      Although rule 47(a) of the rules of civil procedure requires a pleading to
      contain “a short statement of the cause of action sufficient to give fair notice
      of the claim involved,” see tex.R. Civ. P. 47(a), this does not require that
      each element of a claim be specifically alleged in a pleading. See Boyles v.
      Kerr, 855 S.W.2d 593, 601 (Tex.1993) (op. on reh'g). Rather, it is sufficient
      if the cause of action can be “reasonably inferred” from the pleading. See
      Boyles, 855 S.W.2d at 601. In this case, Pacific's live pleading alleges that
      Ernst & Young “conspired with, aided and abetted, associated with, and
      assisted ... in the dissemination of false and misleading information or
      omissions of material facts to prospective investors in First Republic backed
      securities.” The petition also alleged that Ernst & Young's participation in
      the fraud enabled First Republic to make misrepresentations to the public
      after the merger. We have reviewed this language and, after doing so, we
      conclude that (1) a claim for conspiracy or “aiding and abetting” may be
      reasonably inferred from this language, and (2) the language was therefore
      sufficient to support a conspiracy or “aiding and abetting” claim.

Pacific Mut. Life Ins. Co. v. Ernst & Young & Co., 10 S.W.3d 798, 809 (Tex.App.

Dallas,2000), rev’d on other grounds, 51 S.W.3d 573 (Tex. 2001). Importantly,

the court in Pacific Mutual held that the pleading was sufficient even though it

only named the corporate defendant as the conspirator, and did not name any

corporate agents who had participated in the conspiracy. The same result was

reached in State v. Ford Motor Co., 169 S.W.2d 504, 513-14 (Tex.Civ.App. 1943),

where the court stated as follows:


      In any event, the pleader was not required to plead the exact agreement and
      by whom made with respect to the unlawful combination or conspiracy

                                       Page 33
      plead. It is only the facts constituting the cause of action for conspiracy,
      particularly the acts which constitute the grounds or gravamen of the action,
      that must be alleged with certainty and particularity. This the petition did. . .
      We are therefore of the view that the general allegation that a trust,
      combination, or conspiracy was entered into by Ford and its dealers, together
      with the allegations of specific instances whereby Ford and its dealers
      operated so as to limit the territory in which a dealer could resell
      automobiles and parts purchased from Ford . . . fully comply with the rule
      that in alleging a combination or conspiracy the facts constituting the
      conspiracy, or from which it may be inferred, should be clearly and
      concisely set out. . . [A]s a rule great latitude is allowed in setting out in the
      petition the particular acts from which the conspiracy may be inferred.

      State v. Ford Motor Co., 169 S.W.2d 504, 513-14 (Tex.Civ.App. 1943).

Again, it is important to note that the court in Ford Motor held that merely naming

the corporate entity, Ford, as a conspirator was sufficient to state a valid claim

under the Texas notice pleading standard. The same result was reached in Bank

One, Texas, N.A. v. Stewart, 967 S.W.2d 419, 430-31 (Tex.App. Houston [14 Dist.

1998) (“Although the allegations are broad, both petitions raise a reasonable

inference that Bank One and Weyerhaeuser participated in a conspiracy to defraud

LRI by inducing Trendmaker to avoid liability on the Midland Note.”). In Stewart,

as in the other cases cited above, the court held that the plaintiff had pleaded a

valid conspiracy claim where it alleged that the corporate defendants themselves

had participated in the conspiracy.

      If the court had actually applied Rule 91a, the court would apply the fair

notice pleading standard applicable in Texas to determine whether the allegations

of the petition are sufficient to allege a cause of action. Wooley v. Schaffer, 447

                                       Page 34
S.W.3d 71, 76 (Tex.App. Houston [14 Dist.] 2014), citing Roark v. Allen, 633

S.W.2d 804, 810 (Tex .1982) (“A petition is sufficient if it gives fair and adequate

notice of the facts upon which the pleader bases his claim.”); see also Bart Turner

& Assocs. v. Krenke, No. 3:13–CV–2921–L, 2014 WL 1315896, at *5 (N.D.Tex.

Mar. 31, 2014) (applying Texas's fair notice pleading standard to determine

whether to grant motion to dismiss under Rule 91a). In conducting its review, the

court must construe the pleadings liberally in favor of the plaintiff, look to the

pleader's intent, and accept as true the factual allegations in the pleadings to

determine if the cause of action has a basis in law or fact. Id. at 76. Although

Texas Rule of Civil Procedure 47(a) requires “a short statement of the cause of

action sufficient to give fair notice of the claim involved,” it does not require that

each element of the claim be specifically alleged in a pleading. See Pac. Mut. Life

Ins. v. Ernst & Young, 10 S.W.3d 798, 809 (Tex.App.-Dallas 2000, no pet.) (citing

Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex.1993)). If a cause of action can be

“reasonably inferred” from the pleading, the pleading is sufficient. Pac. Mut., 10

S.W.3d at 809. Dr. Montoya’s Petition plainly meets this standard.

      While the court’s decision to grant summary judgment to SACMC cannot

withstand review under the Texas notice pleading standard, the court’s decision

was particularly wrong in light of Dr. Montoyas’ antitrust claims, which allege a

conspiracy to monopolize the relevant market and a group boycott (i.e., a type of


                                       Page 35
anticompetitive conspiracy) against Dr. Montoya by SACMC, Dr. Brewer, Dr.

Brewer’s group of hospitalists, and WTMA. Because of the secretive nature of

conspiracies, courts allow plaintiffs to show conspiracy by circumstantial rather

than direct evidence. Kirby v. Cruce, 688 S.W.2d 161, 164 (Tex.App.—Dallas

1985, writ ref'd n.r.e.). The agreement need not be formal, the understanding may

be tacit, and each conspirator need not know the details of the conspiracy. Id. at

164; Bourland v. State of Texas, 528 S.W.2d 350, 354 (Tex.Civ.App.—Austin

1975, writ ref'd n.r.e.). Given the law on this subject, it makes no sense to grant a

summary judgment in favor of SACMC merely because Dr. Montoya has not

pleaded in detail exactly which representatives of SACMC entered into the

conspiracy, whom they had conversations and agreements with, and so forth. It is

ridiculous to make Dr. Montoya plead such facts before even undertaking

discovery in this matter.1              A conspiracy never needs to be proven with direct

evidence if there is sufficient circumstantial evidence, but in dismissing SACMC

because Dr. Montoya’s pleadings did not show a specific conspiratorial action by

an agent of SACMC, the court effectively required Dr. Montoya to provide direct

evidence of the antitrust conspiracy at the pleading stage. This holding is simply

not allowed under the Texas summary judgment rule, and would not even be

allowed under Rule 91a motion to dismiss.
1
  Plaintiffs did send out Requests for Production and Interrogatories in this matter, but Defendants only tendered
objections and refused to provide a single substantive answer. Plaintiff was in the process of filing a Motion to
Compel when the court granted SACMC’s Motion for Summary Judgment.

                                                    Page 36
J.    The Trial Court Erred When It Failed to Consider the Allegations in
      Plaintiff’s Sixth Amended Petition


      Plaintiff’s Fourth Amended Petition clearly brought claims against SACMC

directly, and even under that pleading, a grant of summary judgment to SACMC

would have been erroneous. Plaintiff’s Sixth Amended Petition, however, made it

clear beyond any doubt that SACMC was being sued for its own conduct, and not

merely for Dr. Brewer’s actions. The court thus erred when it failed to consider

the new allegations in Plaintiff’s Sixth Amended Petition which was filed on May

4, 2016, a week before the summary judgment hearing on May 11, 2016. This

resulted in an erroneous grant of summary judgment to SACMC, as SACMC’s

Motion for Summary Judgment was based on stale factual allegations which were

superseded by the allegations in the Sixth Amended Petition.

      SACMC’s Motion for Summary Judgment argued that because the court had

previously dismissed Dr. Brewer from the case, SACMC should also be dismissed

because “Plaintiff alleges no direct or separate liability claims against SACMC

above and apart from the actions of its agent, Brewer.” SACMC’s Motion for

Summary Judgment as a Matter of Law, p. 3 (hereafter “SACMC Motion for

Summary Judgment”). SACMC based its argument on the statement in Plaintiffs’

Fourth Amended Petition that Brewer “was and is employed by and acting in

furtherance of the business of [SACMC] and its medical practices” and “at all


                                     Page 37
times acted for SACMC.” Id., p. 3. SACMC thus contended that “SACMC’s only

potential liability sounds in the doctrine of respondeat superior.” Id.

        While Dr. Montoya had no need to correct his previous pleading on this

issue, as even the Fourth Amended Petition made it clear that Dr. Montoya sought

to hold SACMC liable for its own conduct and not merely the conduct of Dr.

Brewer2, Plaintiffs’ Sixth Amended Petition showed beyond doubt that SACMC is

not being sued only under a respondeat superior theory for Dr. Brewer’s actions.

Plaintiff’s Sixth Amended Petition thus includes the following statements:

        Dr. Brewer is individually liable for his own illegal, improper acts and
        omissions. At various times Dr. Brewer acted for himself, (SACMC) and/or
        his group of hospitalists.

        Each Defendant in this case (i.e., SACMC and Dr. Brewer), and
        WTMA and Dr. Brewer’s group of hospitalists (eventual defendants)
        are being sued for their individual roles and conduct in the
        monopolization,       attempted    monopolization,      conspiracy     to
        monopolize, and group boycott/concerted refusal to deal. While each
        of these entities may have engaged in the illegal conduct through their
        agents or representatives, they are being sued for their individual roles
        and conduct and not simply under a respondeat superior theory of
        liability due to actions by Dr. Brewer.

        Plaintiff’s Sixth Amended Petition, p. 4, ¶ 6.6 and p. 14, ¶ 12.2 (CR 39).

After this pleading was filed, the fact that SACMC was being sued for its own

conduct became indisputable. The sole basis of SACMC’s Motion for Summary

2
  Plaintiff’s Fourth Amended Petition repeatedly makes it clear that SACMC was being sued for its own conduct,
and not merely for vicarious liability for statements made by Dr. Brewer. Paragraph 6.1 of Plaintiff’s Fourth
Amended Petition, for example, clearly stated that “This case is for the anticompetitive actions of the Defendants
posing a danger of monopolization or attempted monopolization of patient choice and causing patients to pay more
for medical care and injuring consumer patients.” Plaintiff’s Fourth Amended Petition, p. 2, paragraph 6.2

                                                    Page 38
Judgment, that “SACMC’s only potential liability sounds in the doctrine of

respondeat superior,” did not exist even before the Sixth Amended Petition was

filed, and it certainly did not exist afterwards.

      The Supreme Court’s opinion in Sosa v. Central Power & Light, 909 S.W.2d

893, 895 (Tex. 1995) shows that the trial court erred when it failed to consider the

allegations in Plaintiffs’ Sixth Amended Petition. In Sosa, the Court stated as

follows:

      Because the Sosas timely filed their second amended original petition, it
      superseded their first amended original petition containing the statements on
      which the defendants based their motion for summary judgment. Contrary to
      statements in live pleadings, those contained in superseded pleadings are not
      conclusive and indisputable judicial admissions. Drake Ins. Co. v. King, 606
      S.W.2d 812, 817 (Tex.1980). Therefore, the basis for the defendants' motion
      no longer existed and summary judgment was improper.

      Id. at 895. Sosa has recently been reaffirmed by cases such as Lee Homes of

Limestone County, Inc. v. First National Bank, 2015 WL 5175469, at *2

(Tex.App.-Waco 2015, no pet.). Sosa was also cited in Myers v. Southwest Bank,

2014 WL 7009956, at *6 (Tex.App.-Fort Worth 2014, pet. denied).              Myers

summarized the facts and holding from Sosa as follows:


      The defendants in Sosa attempted to meet their burden by arguing that the
      plaintiffs' own pleadings established that the plaintiffs' claims were barred
      by limitations. The plaintiffs then amended their petition to remove the
      statements on which the defendants had relied in their motion. The
      defendants' motion, which was based entirely on the plaintiffs pleading
      themselves out of court, no longer had any basis. Summary judgment was
      therefore improper.
                                         Page 39
      Id. at *6. The same is true in this case, as Plaintiffs’ Sixth Amended Petition

made it clear that the entire basis for SACMC’s Motion for Summary Judgment no

longer existed after that amended pleading was filed.         The court’s grant of

summary judgment to SACMC was therefore improper.


What is EMTALA (The Emergency Medical Treatment and Active Labor Act
Cause of Action)?


      The Emergency Medical Treatment and Active Labor Act (hereinafter

EMTALA) is Section 1867(a) of the Social Security Act, and is codified within the

section of the U.S. Code which governs the Medicare program. (42 USC 1395cc)

The Healthcare Financing Administration (hereinafter HCFA) is the federal agency

that governs Medicare payments and has the statutory authority to issue regulations

concerning the implementation of EMTALA. (HCFA Interpretive Guidelines V-

15)


      EMTALA is a statute which governs when and how a patient must be (1)

examined and offered treatment or (2) transferred from one hospital to another

when he is in an unstable medical condition (3) the list of doctors on staff that are

on call and the fair assignment of patients to doctors. 42 USC 1395cc(a)(1)(I)(iii),

HCFA Interpretive Guidelines V-15




                                       Page 40
      But in this case it does not involve patient dumping but the refusal to follow

the mandatory call list of EMTALA to fairly distribute the paying nephrology

patients under Medicare or private insurance.


L. Maintaining the Call List Requirement


      Medicare –participating hospitals must maintain a list of physicians who are

on call to provide emergency care to individuals presenting to the emergency

room. (42 USC 1395cc(a)(1)(I)(iii))

Under EMTALA the hospital and its officers are responsible for maintaining an

on-call roster for the emergency department. (42 USC 1395cc(a)(1)(I)(iii))


      San Angelo Community Medical Center is a Medicare –participating

hospital.



M. All nephrology patients that go on to dialysis are covered under Medicare-
thus are paying patients for the doctor and hospital

      The avowed purpose of the statute is to prevent hospitals from rejecting

patients, refusing to treat them, or transferring them to "charity hospitals" or

"county hospitals" because they are unable to pay or are covered under the

Medicare or Medicaid programs and to fairly distribute patients coming to the

emergency room between physicians so the physician receives paying and non-


                                      Page 41
paying patients. (42 USC 1395cc (a)(1)(I)(iii)), HCFA Interpretive Guidelines V-

15.


This is a key in this case, the patients coming to the emergency room for
nephrology care are guaranteed to pay the doctor for services through Medicare.

Dr. Brewer wants the paying patients to go to the other nephrologist in the hospital
owned group and to not have Dr. Montoya receive his fair share of patients. Dr.
Brewer is paid by the other nephrologist for coverage.

The purpose of the call list is to allow all physicians to equally receive call and
paying and non-paying patients.

A brief to the Trial Court an EMTALA was provided after the Motion to Dismiss

hearing (CR 185). This brief has even more details.


      Wherefore the Plaintiffs based upon EMTALA request the Orders

dismissing Dr. Brewer be reversed and the Summary Judgment be reversed.


N. Summary Judgment in favor of SACMC

      Despite Appellants valid claims under In Re Memorial Hermann and the

legal arguments and facts proven in the response to the Motion for Summary

Judgment (Supp. CR ____) the trial court committed reversible error by granting

the Defendant SACMC Summary Judgment (CR 336). Thus this Court should

reverse the granting of the Summary Judgment and render judgment for Appellants

denying the Summary Judgment.

      Summary Judgment for the Defendant is only proper if, as a matter of law,
                                        Page 42
the Plaintiff cannot succeed on any theory pled. See G & H Towing Co. v. Magee,

347 SW3d 293, 296-97 (Tex.2011); see City of Houston v. Clear Creek Basin

Auth.,     589 SW29 671, 678 n.5 (Tex. 1979) Tex.R.Civ. 166a(a); Gibson v.

Methodist Hosp., 822 SW2d 95, 17 U.C.C. Rep. Serv. 2d 81 (Tex. App.-Houston

[1st Dist.} 1991, writ denied). The function of summary judgment is not to deprive

litigants of their right to a full hearing on the merits of any real issue of fact or their

right to trial by jury. (see Tex.R.Civ.Proc 166 a) Rather, the goal of the procedure

is the prompt elimination of patently unmeritorious claims or untenable defenses

(See Means v. ABCABCO, Inc., 315 S.W.3d 209 (Tex. App. Austin 2010); Cedyco

Corp. v. Whitehead, 253 S.W.3d 877 (Tex. App. Beaumont 2008); Montemayor v.

Ortiz, 208 S.W.3d 627 (Tex. App. Corpus Christi 2006); Armstrong v. Hixon, 206

S.W.3d 175 (Tex. App. Corpus Christi 2006); and the summary termination of a

case when it clearly appears that only questions of law are involved and that there

are no genuine issues of fact. (See Bliss v. NRG Industries, 162 S.W.3d 434 (Tex.

App. Dallas 2005); Martin v. Commercial Metals Co., 138 S.W.3d 619 (Tex. App.

Dallas 2004). The trial court erred in not finding genuine issue of fact and not

following the Texas Supreme Court in In Re Memorial Hermann and In Re Lipsky

and City of Dallas.

         The Appellant in the response to the Motion for Summary Judgment proved

the facts stated on pages 13-18 above through the factual affidavit attached to the


                                         Page 43
response for Summary Judgment (Supp. CR____).

     The Defendant in their Motion for Summary Judgment did not disprove any

element of the Plaintiffs cause of actions of Dr. Montoya’s Sixth Amended

Petition (CR 300). All the Defendant did was state unsworn statements that are

not facts and rely on the Order of Dismissal in favor of Dr. Brewer.            The

Defendants did not attach any evidentiary affidavits to their Motion for Summary

Judgment disputing the facts of the Plaintiff and the independent affidavit of Dr.

Hunt (Supp. CR ________) (Supp. CR_____).

     Thus the Motion for Summary Judgment should be reversed and denied.

     To succeed on a traditional Motion for Summary Judgment, the Defendant

must show that there is no genuine issue of material fact and that it is entitled to

Summary Judgment as a matter of law. Tex.R.Civ.P. 166a(c); Mann Frankfort

Stein & Lipp Advisors, Inc. v. Fielding, 289, SW3d 844, 848 (Tex. 2009); Nixon v.

Mr. Prop. Mgmt. Co., 690 SW2d 546, 548 (Tex. 1985). To meet this burden, the

Defendant must conclusively prove all essential elements of its claim. MMP, Ltd.

v. Jones, 710 SW2d 59, 60 (Tex. 1986). A matter is conclusively established if

reasonable people could not differ on the conclusion to be drawn from the

evidence. City of Keller v. Wilson, 168 SW3d 802, 816 (Tex. 2005). If the

Defendant establishes its right to summary judgment as a matter of law, the

burden shifts to the Plaintiff to present evidence that raises a genuine issue of


                                      Page 44
material fact. Boudreau v. Fed. Trust Bank, 115 SW3d 740, 743 (Tex. App.-

Dallas 2003, pet. Denied). In deciding whether to grant Defendant’s motion, the

court must take as true all competent evidence favorable to the Plaintiff’s favor.

Limestone Prods. Distrib., Inc. v. McNamara, 71 SW3d 308, 311 (Tex. 2002);

Rhone-Poulenc, Inc. v. Steel, 997 SW2d 217, 223 (Tex. 1999); Nixon, 690 SW2d

at 548-49.

      The Plaintiffs presented proof to deny the Summary Judgment in the factual

affidavits of Dr. Montoya (Supp. CR ____) and Dr. Hunt (Supp. CR___).


      No Summary Judgment evidence was presented by the Defendant SACMC.

Dr. Montoya’s response to the Motion for Summary Judgment objected to the

Motion because there is no evidence attached to the Motion (Supp. CR______).

The statements in the body of the argument are heresay and Dr. Montoya requested

the Court to strike those statements as defective and not meeting the standard for

Summary Judgment evidence. The statements in the argument are conclusory and

without factual basis as required by the Texas Rules of Civil Procedure (TRCP

166a(c)) (CR 208).

      Dr. Montoya further objected to the argument because it did not meet the

standard set forth for an affidavit in the Texas Supreme Court Radio Station KSCS

v. Jennings 750 S.W.2d 760 (Tex. 1988). The Supreme Court held that affidavit

for summary judgment failed to establish that it was based on personal knowledge
                                     Page 45
and was thus inadequate summary judgment proof. The argument in the Motion is

not a factual affidavit showing proof.


      Dr. Montoya objected to the argument because it was not an affidavit which

must state facts and cannot merely recite legal conclusions. Brownlee v. Brownlee,

655 S.W. 2d 111, 112 (Tex. 1984). In this case the argument does not meet the

KSCS or Brownlee standards.


O. SUMMARY-JUDGMENT EVIDENCE PRESENTED BY PLAINTIFF

       To support the facts in this response, Dr. Montoya offered the following

summary-judgment evidence attached to this response and incorporates the

evidence into this response by reference.


      Exhibit 1: Certified copy of Pleading approved by the Texas Supreme Court

as valid causes of action in In Re Memorial Hermann (Supp. CR ______).


      Exhibit 2: Is the affidavit of Steve F. Montoya, Jr., M.D. one of the

Plaintiffs. In the affidavit he states the facts and refutes the allegations for the

dismissal under TRCP 91(a) and the Anti-Slapp allegations (Supp. CR_______).


      Exhibit 3: Is the affidavit of Dr. Hunt that confirms the causes of actions

and the facts of the Anti-Trust actions of San Angelo Community Medical Center

(Supp. CR_____).


                                         Page 46
P.    Defendant did not disprove plaintiff’s cause of action as a matter of law.
      A defendant is entitled to summary judgment on a plaintiff’s cause of action

if the defendant can disprove at least one element of the cause of action as a matter

of law. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); see Tello v.

Bank One, N.A., 218 S.W.3d 109, 113 (Tex. App.—Houston [14th Dist.] 2007, no

pet.). SACMC has not disproved any of Plaintiffs elements in their causes of

action (CR 208).


      The Traditional Motion for Summary Judgment by SACMC was nothing

more than a thinly vailed attempt to get around the untimely filing of the Motion to

Dismiss under 91(a) and the Anti-Slapp Motion Tex.Civ.Prac. & Rem. Code

§§27.001 et. seq.

      The trial court erred in granting the Summary Judgment because Defendant

SACMC did not show there was not genuine issue of material fact and/or

Plaintiffs’ factual affidavits proved genuine issues of material facts.


      The finding of the Court dismissing Dr. Brewer (CR 194 and 196) is not

controlling to the causes of action brought against SACMC. The causes of action

against SACMC cannot be controlled by the dismissal of Dr. Brewer without valid

Summary Judgment evidence, which there is none.




                                        Page 47
      The Defendant SACMC does not even attach a single factual affidavit or any

affidavit in support of their Summary Judgment (CR 208). The only thing relied

upon is the Court prior Order of Dismissal of Dr. Brewer’s claims.


      SACMC filed a Motion for Special Exceptions on August 14, 2015 (CR 17)

and the court granted the Special Exceptions on December 3, 2015 (CR 75). The

Plaintiffs Petition was amended to comply with the Court order. SACMC should

have filed a Motion to Dismiss when it filed the Special Exception. The Motion

for Summary Judgment is a untimely Motion to Dismiss that has no evidence or

proof attached (CR 208).


      The purpose of this lawsuit has nothing to do with the Defendants

Constitutional Rights to speak freely, associate freely and participate in

governmental as permitted by law. These are the requirements to meet in filing a

Motion under the Anti-Slapp Statute Tex.Civ.Prac. & Rem. Code §§27.001 et. seq.

and as set out in Paulsen v. Yarrell 455 SW3d 192 (Tex.-App.-Houston [1st Dist.]

2014, no pet.) (quoting In Re Estate of Check 438 SW3d at 836).

      The Texas Supreme Court agreed that clear and specific evidence under the

Texas Anti-Slapp Statute Chapter 27 includes relevant circumstantial evidence. (In

Re Lipsky). The evidence of the Plaintiff in the Petitions and in his response




                                      Page 48
affidavits of Dr. Montoya and Dr. Hunt meets the In Re Lipsky standard (see CR

300, 94, 177, 331and Supp. CR____ ).

      The Defendant SACMC did not even join in Dr. Brewer’s Motion to

Dismiss under 91(a) or his Anti-Slapp motion (CR 76 and 119). All the actions

SACMC were untimely.

Issue 3

1.    Pursuant to Tex.Civ.Proc.91(a)3(b) a Motion to Dismiss must be filed at

      least 21 days before the Motion is heard. The original Motion to Dismiss

      was filed on July 7, 2016 (CR 119). The hearing was set by the Court for

      January 12, 2016 (CR 91-93). An amended Notice of Hearing was set on

      January 29, 2016 (CR 183). The amended Notice of the Motion to Dismiss

      was sent on January 13, 2016 (CR 184). This notice was less than the 21

      days required by Tex.Civ.Proc.91(a)3(b). The amended Motion to Dismiss

      was filed on January 7, 2016 (CR 119).       Dr. Montoya objected to the

      Amended Motion of Dr. Brewer as not being allowed without restarting the

      period.   The Court erred in allowing the Motion to Dismiss under

      Tex.Civ.Proc.91(a) to be heard. Dr. Montoya objected to the hearing in his

      Supplemental Response to the Motion to Dismiss (CR 177). Tex.Civ.Proc.

      91(a)5(d) require the hearing to be reset Tex.Civ.Proc.91(a)6. By filing the

      Amended Motion Dr. Brewer waived the right to be heard.


                                     Page 49
2.    Pursuant to Tex.Civ.Prac. & Rem. Code §§27.001 et. seq. a Motion to

      Dismiss a legal action under this section must be filed not later than the 60 th

      day after the date of service of the legal action Tex.Civ.Prac.Remedies Code

      §27.003(b). Dr. Brewer was originally served on October 9, 2015 (Supp.

      CR_____). Dr. Brewer filed his Motion to Dismiss under Tex.Civ.Prac. &

      Rem. Code §§27.001 et. seq. on December 8, 2015 which was within the 60

      days after the date of service. Dr. Brewer then filed an Amended Motion to

      Dismiss on June 7, 2015 (CR 119) which is outside the sixty day

      requirement of Tex.Civ.Prac.Remedies Code §27.003(b).             Dr. Montoya

      objected to the untimely filed affidavits and Amended Motion (CR 177).

      The Court should strike the affidavits as untimely filed and thus the Motion

      should be denied as not meeting the first proving of In Re Lipsky.


                          CONCLUSION AND PRAYER


      The Appellants showed in their response to the Motion for Summary

Judgment and the factual affidavits in the response to Motion for Summary

Judgment that this Court should (1) reverse the granting of the Summary Judgment

and (2) remand the case to the trial court for trial. The Appellants showed valid

causes of actions and facts and the this court should reverse the Orders of

Dismissal for Dr. Brewer and remand the case to the trial court for trial.


                                       Page 50
                                           Respectfully Submitted,

                                           Paul Craig Laird II Law Firm, PLLC.

                                           /s/ Paul Craig Laird II
                                           By: Paul Craig Laird II
                                           SBOT #11795420
                                           800 West Airport Freeway
                                           Suite 800, LB 6015
                                           Irving, Texas 75062
                                           (972) 554-0929
                                           (214) 260-4935 fax
                                           pcl880@aim.com
                                           ATTORNEY FOR APPELLANTS
                      CERTIFICATE OF COMPLIANCE
      Based on a word count using Microsoft Word 2007, this Appellant’s Brief
contains 12,584 words excluding the portions of the brief excluded from the word
count under T.P.A.P.94(i)(l).
                                           /s/ Paul Craig Laird II
                                           Paul Craig Laird II
                         CERTIFICATE OF SERVICE
     I hereby certify that a true and correct copy of the above and foregoing
Appellant’s Brief was served on the following by email on the 21st day of
November, 2016.
                                          /s/ Paul Craig Laird II
                                          Paul Craig Laird II
         Appellee Kirk Brewer, M.D. counsel of record:
         Robert B. Wagstaff
         McMahon Surovik Suttle, P.C.
         400 Pine Street, Suite 800
         Abilene, Texas 79601
         Appellee San Angelo Community Medical Center counsel of record:
         James J. McGoldrick
         Jones Carr McGoldrick, LLP
         5910 N. Central Expressway, Suite 1700
         Dallas, Texas 75206

                                    Page 51
                                 APPENDIX

(1)   Dr. Montoya’s Fourth Amended Original Petition

(2)   Dr. Montoya’s Sixth Amended Original Petition

(3)   Defendant Kirk Brewer, M.D.’s Motion to Dismiss and for Recovery of
      Costs and Attorney’s Fees

(4)   Defendant Kirk Brewer, M.D.’s Amended Motion to Dismiss and for
      Recovery of Costs and Attorney’s Fees

(5)   Response to Motion to Dismiss

(6)   Supplemental Response to Motion to Dismiss

(7)   Order on Defendant Kirk Brewer, M.D.’s Motion to Dismiss per the Texas
      Citizens Participation Act

(8)   Order on Defendant Kirk Brewer, M.D.’s Motion to Dismiss per Rule 91(a)
      of the Texas Rules of Civil Procedure

(9)   Defendant San Angelo Community Medical Center’s Traditional Motion for
      Summary Judgment

(10) Plaintiffs Steve F. Montoya, Jr. M.D., West Texas Renal Care and West
     Texas Nephrology’s Response to Defendant San Angelo Community
     Medical Center’s Motion for Summary Judgment and Objection and Request
     for Continuance

(11) Order of Defendant San Angelo Community Medical Center’s Summary
     Judgment

(12) Response to Motion to Dismiss of San Angelo Community Medical Center

(13) Texas Rule of Civil Procedure 91(a)

(14) Texas Civil Practice & Remedies Coe §27.001 et.seq.

(15) In Re Memorial Hermann Hospital System, 464 S.W. 3d 686 (2015)
                                      Page 52
(16) In Re Lipsky, 460 SW3d 579 (Tex.2016)

(17) City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (2016)




                                    Page 53
TAB NO. 1
                                                                                      Filed for Record
                                                                                      1/11/2016 4:15:34 PM
                                                                                      Sheri Woodfin, District Clerk
                                                                                      Tom Green County, Texas



                                   CAUSE NO. B-15-0285-C

STEVE F. MONTOYA, JR., M.D.                  §      IN THE DISTRICT COURT OF
WEST TEXAS RENAL CARE                        §
WESTTEXASNEPHROLOGY                          §
                                             §
vs.                                          §       119th JUDICIAL DISTRICT
                                             §
SAN ANGELO COMMUNITY                         §
MEDICAL CENTER AND                           §
KIRK BREWER, M.D.                            §      TOM GREEN COUNTY, TEXAS

                PLAINTIFF'S FOURTH AMENDED ORIGINAL PETITION

       Plaintiff's STEVE F. MONTOYA, JR., M.D., West Texas Renal Care and West Texas
Nephrology file this Fourth Amended Original Petition and would show:

1.     This case should be conducted under Discovery Level Two until the Court enters a Level
       Three Scheduling Order.

2.     Plaintiff STEVE F. MONTOYA, JR., M.D. is an individual residing in Tom Green
       County, Texas. Plaintiff West Texas Renal Care is a Texas Corporation with its principal
       place of business in Tom Green County, Texas. Plaintiff West Texas Nephrology is a
       Texas-Professional Association with its principal place of business in Tom Green County,
       Texas.

3.     Defendant San Angelo Community Medical Center is a Delaware LLC that is registered
       to do business in the State of Texas and has its principal place of business in San Angelo,
       Tom Green· County, Texas. San Angelo Medical Center can be served by serving its
       registered agent Corporation Service Company d/b/a CSC-Lawyers Incorporating Service
       Company as its registered address, 211 E. 7ili Street, Suite 620, Austin, Texas 78701.

       Defendant Kirk Brewer, M.D. is an individual whose principal place of business and
       residence is in Tom Green County, Texas. Defendant Kirk Brewer, M.D. can be served
       at his office at- San Angelo Medical Center at 3501 Knickerbocker Rd., San Angelo,
       Texas 76904.

4. :   Venue and Jurisdiction


PLAINTIFF'S FOURTH AMENDED ORI0Ilf18(JETIT10N                                        Page 1 of 13
      Venue is proper in Tom Green County under Tex.Civ.Prac. & Remedies Code Section
      15.002(a) (1) as all or a substantial part of the events or omissions giving rise to this legal
      action occurred in Tom Green County, Texas.

5.    Dr. Montoya, West Texas Renal Care and West Texas Nephrology, PA have incurred and
      sues for damages in the maximum amount of $ 6,400,000.00 plus three times for
      exemplary damages plus attorneys and costs as allowed by law and jurisdiction is proper
      in this Court.

6.1   Dr. Steve F. Montoya has practiced as a nephrologist since 1979 in San Angelo, Texas.
      Dr. Montoya has practiced at San Angelo Community Hospital since 1981. Dr. Montoya
      in developing, building and keeping his practice has always taken patients as an on-call
      staff attending physician from the emergency room/department of San Angelo
      Community Medical Center.

6.2   In developing and building a practice Dr. Montoya as a nephrologist wanted long term
      kidney dialysis patients to treat in his practice.        Referral from hospitals and area
      physicians is extremely important to a nephrologist to building and keeping a practice.
      The ability to obtain referrals from a hospital and area physicians is a primary source of
      patients with kidney disease. This case is for the anticompetitive actions of the
      Defendants posing a danger of monopolization or attempted monopolization of patient
      choice and causing patients to pay more for medical care and injuring consumer patients.

6.3   Besides word of mouth and patient to patient referral Dr. Montoya built his patient base
      from referring physicians, from referrals of patients who came to the emergency
      room/department and hospital patients with kidney disease. A patient who lives in the
      service area/relevant market of San Angelo Community Medical Center and needs long
      term care which can include dialysis is one of the primary ways Dr. Montoya and his
      entities succeed. Dr. Montoya during his 36 year career in San Angelo built his practice
      including a dialysis unit that can serve 24 patients per shift.

6.4   The service area/relevant market for San Angelo Community Medical Center is Tom
      Green County and contiguous counties.



PLAINTIFF'S FOURTH AMENDED ORIGilf'SfETITION                                           Page2 of 13
6.5   Dr. Brewer is an employee of an entity owned and created by San Angelo Community
      Medical Center. Dr. Brewer is the chief of staff of the hospital and head of the hospitalist
      group that practices at San Angelo Community Medical Center. Dr. Montoya has been
      denied the referral of patients . that come into the emergency room with kidney
      problems/illness/disease. These patients are being referred to the hospital owned group.
      Even Dr. Montoya's current patients are being referred to hospitalist/hospital owned
      group. The group owned by the hospital is costing the patient money because the patients
      have to pay for a hospitalist and are then being referred to a different nephrologist whose
      group has a contract/agreement with the hospital and its owned entities. The patients are
      denied the opportunity to save money. The hospitalist group charges the patients at a
      higher comprehensive rate/code.

6.6   At all relevant times Dr. Kirk Brewer, as a principal officer of Community Medical
      Associates and Chief of Staff of San Angelo Community Medical Center (SACMC) and
      head of the hospitalist system at (SACMC) with agents/employees of (SACMC) working
      under his control, direction, or in furtherance of unlawful and improper actions was and is
      employed by and acting in furtherance of the business of (SACMC) and its owned
      medical practice(s). Dr. Brewer is individually liable for his own illegal, improper acts
      and omissions. Dr. Brewer at all times acted for (SACMC). Dr. Brewer is also liable for
      the improper acts and omissions as Chief of Staff of (SACMC). Dr. Brewer, as well as
      the other agents/employees of (SACMC) and/or its owned practices are liable under the
      doctrine of respondeat superior and vicarious liability.

6.7   The Defendants (SACMC) and Dr. Kirk Brewer, acting by and through its
      agents/employees/principals/officers acted together to carry out the improper and illegal
      actions and therefore are jointly and severally liable for civil conspiracy in carrying out
      their wrongful activities.

6.8   All conditions precedent to Plaintiffs recovery have been performed or have occurred.
      Dr. Montoya is a hard working member of the San Angelo Medical Community. Dr.
      Montoya came out of San Antonio, Texas and received a full scholarship for his
      undergraduate degree at Rice University. After graduating Rice University Dr. Montoya
      then went on to medical school at The University of Texas Southwestern Medical School


PLAINTIFF'S FOURTH AMENDED ORIODftr2ETITI0N                                         Page 3 of 13
       in Dallas, Texas. After Dr. Montoya finished his residency and training he went to in
       west Texas. Dr. Montoya built a stellar reputation for quality patient care, excellence in
       the practice of nephrology and dialysis care of the long term illness of kidney
       failure/disease.

6.9    Dr. Montoya is the only nephrologist in San Angelo that speaks Spanish. Dr. Montoya
       cares about his patients, his fellow medical professionals, and his community.             Dr.
       Montoya's practice has expanded over the years including with the referral from local
       physicians, the emergency room/department and hospital consultation because of his
       well-deserved reputation for quality patient care.

6.10   Dr. Montoya's skill as a nephrologist was until the hospital created its own medical
       practice, a marketing asset for SACMC. Dr. Montoya received his rotating share of
       referrals of patients with kidney disease/illness/failure until SACMC created its own
       practice groups.

6.11   The recommendation and referral through the emergency room/department directly
       affects the patient's choice of doctor. The doctor in turn decides the patient's course of
       treatment and what and how the patient is coded for billing on treatment.

6.12   The choice of doctor directly affects the patient's costs and expenses both in the short
       term and for long term care of kidney disease/illness/failure. Individuals with kidney
       disease can require care for the rest of their life which may include dialysis.

6.13   Improperly manipulating the doctor a patient receives care from creates a cost to the
       patient and improperly distorts free and informed patient choice and options for medical
       care.

6.14   The correct and appropriate way for any health care provider of emergency hospital
       services and nephrology service is to provide the highest quality of care to the patient.
       Patients deserve to have lower costs. The illegal and unjust way of treating patients is to
       manipulate their free choice in the market place. In this case it is to only refer a patient to
       a hospitalist, in a group owned by the hospital, and to them only refer a patient to a



PLAINTIFF'S FOURTH AMENDED OR1Gllf~3ETITI0N                                              Page4 of 13
       nephrologist in a hospital owned group and to malign and smear a highly qualified
       nephrologist in the practice at the same hospital.

6.15   The Defendants decided to then have a covert whisper campaign and not refer any
       patients to Dr. Montoya.

6.16   The Defendants illegal and anti-competitive acts unfairly and wrongfully have cast Dr.
       Montoya's stellar reputation under a dark cloud. Also the patients of Dr. Montoya have
       been refused the services of Dr. Montoya when the patient is in the hospital. The patients
       are suffering in paying higher costs and expenses for their care.

6.17   Dr. Montoya was brought up on charges of incompetent patient care for misspelled words
       on a chart. These actions were just taken to discredit Dr. Montoya and his ability to
       practice medicine in San Angelo and at San Angelo Community Medical Center. None
       of the actions of the hospital were based on patient care but for retaliation after Dr.
       Montoya complained about the Defendants anticompetitive actions. The actions also
       were to hurt the reputation of Dr. Montoya in advanced abilities in nephrology. Dr.
       Montoya corrected the "misspelled words" and harsh undeserved review of his charts
       continued. Despite the efforts of Defendants the railroading of Dr. Montoya was not
       successful.

6.18   The actions of the Defendants have a tendency to reduce or eliminate competition that is
       not offset by any countervailing procompetitive justification.

       Causes of Action

       The causes of action are only under the laws of the State of Texas.

7.     Tortious Interference with current and prospective business/patient relations

7.1    The actions of the Defendants are tortiously interfering with patient choice and care. The
       actions are being taken by the Defendants to keep the Plaintiff from having a successful
       nephrology practice. Defendant's actions are such that they know that their interference
       will cause the Plaintiff damage in excess of the minimum judicial limits of the Court.



PLAINTIFF'S FOURTH AMENDED ORIGilf'84ETITION                                           Page 5 of 13
      Defendants intentionally interfered with Dr. Montoya's longstanding and continuous
      relationships with patients and referring physicians from the emergency room/department
      in a concerted effort to restrain completion and monopolize the practice of nephrology
      and the treatment of long term kidney disease in the relevant market described in this
      petition.

7.2   Every contract, combination or competition of the relevant defendants in restraint of trade
      or commerce is unlawful and is just as it is unlawful for any person to monopolize,
      attempt to monopolize or conspire to monopolize any part of trade or commerce.

7.3   The Plaintiff pleads a reduction of competition in the relevant market in general to
      patients. A monopoly in this case is caused by the elimination of Dr. Montoya and is just
      as harmful as it would be if driving out competition in large groups. Removal of Dr.
      Montoya from the hospital and its relevant market will adversely affect and unreasonably
      affect overall competitive conditions and cost patients money. The Defendants through
      their actions are possessing or trying to possess monopoly power in the relevant market
      and the willful acquisition or maintenance of that power is distinguished from growth
      through business acumen.

7.4   The Defendants are engaging anticompetitive conduct with a specific intent to
      monopolize and a dangerous probability of achieving monopoly power and the
      defendants' ability to lessen or destroy completion in the relevant market and cost
      patients money.

7.5   Patients are damaged by the actions of the Defendants by higher cost of care.

      Patients have an absolute right under the patients Bill of Rights attached as Exhibit D to
      "Participate in decisions about your care, including developing your treatment plan,
      discharge planning and having your family and personal physician promptly notified of
      your admission. Select providers of goods and services to be received after discharge."
      The Plaintiffs did not follow the Bill of· Rights and violated the patient choice and
      damaged the Defendants in violating the Bill of Rights.

7.6   The actions of the Defendants are illegal and anticompetitive.



PLAINTIFF'S FOURTH AMENDED ORIGDf465ETITION                                           Page 6 of 13
7. 7   San Angelo Community Medical Center created its own group of doctors owned by the
       hospital in both hospitalist groups and in a group named Community Medical Associates.
       These groups came into existence on or about 2006. Until these groups Dr. Montoya
       received his share of new patients from the hospital and emergency room. After these
       groups were formed Dr. Montoya received only one referral since 2007.

       Facts for Cause of Action

7.8    Realleges all facts in paragraph 6 above.

7.9    Dr. Montoya was admitted to practice nephrology at San Angelo Community Medical
       Center in 1981. Dr. Montoya has full staff privileges for the practice of nephrology at
       San Angelo Community Medical Center. The facts of the case are that Kirk Brewer,
       M.D. was during his actions an officer and/or Chief of Staff of the medical staff of San
       Angelo Community Medical Center. Kirk Brewer, M.D. was hired by San Angelo
       Community Medical Center to run the hospitalist service. As an officer of the staff and
       Chief of Staff Kirk Brewer, M.D. owed Dr. Montoya as a member of the staff a fiduciary
       duty to not interfere by direct or indirect action with his practice of nephrology at San
       Angelo Community Medical Center.

7.10   Kirk Brewer, M.D. came to San Angelo Community Medical Center in 2007. Part of Dr.
       Montoya and obtaining patients is that the hospital emergency room uses a rotating
       system of specialists admitted in that practice to see patients in the hospital and
       emergency room.      When you are the named specialist you receive a call from the
       emergency room physician that a doctor with your specialty is needed for a patient. A
       big part of Dr. Montoya's practice was obtaining new patients and treating existing
       patients that came to the emergency room and needed a nephrologist. Since 1981 Dr.
       Montoya has obtained new patients from the emergency room.

7.11   Until 2007 Dr. Montoya would receive 10-20 calls from the emergency room, per month
       to treat either new or existing patients at the San Angelo Community Medical Center.
       Since 2008 Dr. Montoya has only received one call from the emergency room or a
       hospitalist for consultation as a nephrologist, except for one time for treatment of a new
       patient or existing patient that suffered with kidney problems.


PLAINTIFF'S FOURTH AMENDED ORIGDfflgETITION                                         Page 7 of 13
7.12   The one time for a new patient is described below. On January 24, 2014 Dr. Montoya
       was called by the San Angelo Community Medical Center emergency room physician on
       duty and the hospitalist Dr. Bartels. Dr. Bartels and the emergency room physician
       informed Dr. Montoya that a patient was diagnosed with acute renal failure.                 Dr.
       Montoya was informed his name was on the call board in the emergency room as
       nephrologist on call. Both of the above doctors asked Dr. Montoya to consult concerning
       treatment for that patient. Dr. Montoya gave an initial consult advice/orders of treatment
       to both doctors. This consultation call was to Dr. Montoya at 9:38 p.m. Dr. Montoya
       informed them he would come see the patient and then review the test results and
       determine any additional treatment for the patient. Attached as Exhibit A is a true and
       correct copy of the redacted hospital record showing the facts on January 24, 2014.


7.13   On January 25, 2014 at 8:10 a.m. Kirk Brewer, M.D. took over the hospitalists care of the
                                                                                               I
       patient as his rotation as the hospitalist started. Then without ever seeing the patieft or
       the chart Kirk Brewer, M.D. cancelled Dr. Montoya consult and treatment byl Dr.
                                                                                               I

       Montoya and consulted another nephrologist. Dr. Montoya went to the call board! and
       witnessed his name on call as the nephrologist on call on January 24 and 25, 2014. !The
       San Angelo Community Medical Center is required to have an official EMT!LA
       Medicare call list for on call physicians for the San Angelo Community Medical C nter
                                                                                               I
       to take Medicare patients. This is the list my name was on and was intentionally ign1red.
       This also violates a patient's right to choose their physician. This list was followed pntil
       Dr. Brewer caine to San Angelo Community Medical Center and took charg~ of
       hospitalists. The nephrologist he brought in for consult is one that is in a group that ~irk
                                                                                               I
                                                                                               I
       Brewer, M.D. has a contract for paid services. Dr. Brewer did not see the patient           hen
       he removed me as the treating nephrologist he issued the change via a telephone rder
       (see Exhibit B). Kirk Brewer, M.D. without seeing the patient, or chart change the
       patient's doctor. This change of nephrologist was for Kirk Brewer, M.D. 's econ· mic
       gain and caused Dr. Montoya economic loss. Attached as Exhibit Bis a true and cohect
                                                                                               I
       copy of the redacted hospital record showing the facts on January 25, 2014.             '




PLAINTIFF'S FOURTH AMENDED ORIGDf~7ETITION                                            Page 8   qf 13
7.14   Kirk Brewer, M.D. by his actions of removing Dr. Montoya as the nephrologist published
       a statement that Dr. Montoya was not a competent nephrologist to treat patients coming
       to the San Angelo Community Medical Center emergency room. Kirk Brewer, M.D. was
       aware that his actions would become known to the staff physicians of San Angelo
       Community Medical Center and that he was by conduct and a whisper campaign saying
       Dr. Montoya should not be allowed to treat patients at San Angelo Community Medical
       Center.

7.15   Attached to this petition as Exhibit C is the true and correct sworn statement that an
       existing patient of Dr. Montoya, Mrs. Welch tried to see Dr. Montoya in the emergency
       room of San Angelo Community Medical Center and that the emergency room would not
       call Dr. Montoya to treat his existing patient Mrs. Welch is over 90 years of age and Dr.
       Montoya has treated her for at least 20 years.

7.16   Another patient of mine, whose name is withheld per privacy rights, who is also over 90
       years of age and has been Dr. Montoya patient for at least 10 years requested me when
       she went to the emergency room and she also was refused to see Dr. Montoya.

7.17   A patient has the absolute right to be treated by their physician. Both of the above
       happened when Kirk Brewer, M.D. was President of the medical staff or an officer of the
       medical staff and when he was head of the hospitalist service when the above happened.

7.18   Again by the actions of the hospitalists and emergency room physicians who are
       controlled by their supervisors or lead physicians Kirk Brewer, M.D. through this actions
       defamed Dr. Montoya as a qualified physician or staff at San Angelo Community
       Medical Center.

7.19   Furthermore, Plaintiff is entitled to exemplary damages from the Defendant, because they
       acted with malice required to support an award of exemplary damages. Defendants have
       acted with a specific intent to cause injury to the Plaintiff.

7.20   Plaintiff sues under this causd of action for anticompetitive conduct and/or effect.

7.21   The Plaintiff sues for damages that are within the jurisdictional limits of this ourt.


PLAINTIFF'S FOURTH AMENDED ORIGilf£ffETITION                                           1   age 9 of 13
8.    Tortious Interference with current and prospective business relations - Exemplary
      Damage

      The Plaintiff will show that these actions, set forth above, of interference are done with
      malicious intent in interfering with the Plaintiffs right to peaceably conduct his business
      and are done out of spite and ill will towards Plaintiff. The Plaintiff is entitled to and
      sues for exemplary damages within the jurisdictional limits of this Court.

      Plaintiff sues under this cause of action for anticompetitive conduct and/or effect.

9.    Defamation Per Se

9.1   The statements of the Defendant constitute defamation per se in that they suggest that the
      Defendant is not a competent nephrologist and should not be referred patients.

9.2   The Defendant has published the above statements on numerous occasions through a
      whisper campaign and his conduct.

9.3   The defamatory statements are false. Defendant has and is publishing the remarks to
      individuals and entities to harm the Plaintiff and to remove all competition illegally in an
      anti-competitive action.

9.4   The statements and actions of Kirk Brewer, M.D. were published by his conduct. The
      actions were referring to Dr. Montoya as a non-competent nephrologist. The statement(s)
      were defamatory and caused Dr. Montoya economics loss.

9.5   The total loss is between $1,000,000.00 and $6,500,000.00 from not receiving any
      referrals from the emergency room or hospitalists.
9.6   The defamatory statements are untrue.        Dr. Montoya is a competent and qualified
      nephrologist to treat patients at San Angelo Community Medical Center.

9.7   The actions of Kirk Brewer, M.D. were intentional or done with negligence when Kirk
      Brewer, M.D. knew that the statement was false and his actions would lead a reasonable
      prudent physician or patient knowing/believing of its defamatory potential.




PLAINTIFF'S FOURTH AMENDED ORIGilffJ-gETITION                                       Page 10 of 13
9.8     As officer and as President of the medical staff Kirk Brewer, M.D. must follow the rules
        at San Angelo Community Medical Center and staff of San Angelo Community Medical
        Center and have a new patient in the emergency room or hospital that needs a specialist
        consultation assigned to the name off the rotating consultation list. By Kirk Brewer,
        M.D. not following this procedure Dr. Montoya did not receive any consultation requests
        from the emergency room or hospitalist at San Angelo Community Medical Center in
        2008-present and one in 2014.


10.     Malice

        By reference Plaintiff adopts and realleges Paragraphs 6-9 of the Original Petition as if
        they were set forth herein. For further cause of action, Defendant's conduct amounts to
        malice under the Texas Civil Practice and Remedies Code§ 41.007 and the common law
        of Texas because Defendant's actions have and are involving an extreme degree of risk
        considering the probability and magnitude of the potential harm to others. Plaintiff is
        entitled to exemplary damages and does hereby sue for them.

11.     Business Disparagement

        The Plaintiffs reallege the allegations and facts set forth above in paragraphs 6-9.

        The Defendants published disparaging comments and allegations about Dr. Montoya and
        his practice. Defendants took the action(s) to harm the Plaintiffs business interests.
        Defendants knew the disparagement was false and the actions were done with malice.

12,     Restraint of trade

12.1    The Plaintiffs reallege the allegations and facts set forth above in paragraphs 6-9.

12.2    Plaintiff makes claim under the Texas Business and Commerce Code Section 15.21
        known as the Texas Free Enterprise and Antitrust Act and it recognizes as illegal
        improper attempts to abuse the patient referral of the emergency room/department and
       · hospital patients, as well as conspiracies to limit patient choices by concerted illegal
        action as engaged by the Defendants. The Plaintiffs seek relief for this anticompetitive




PLAINTIFF'S FOURTH AMENDED ORIGilf1{JETITION                                          Page 11 of 13
       action(s) solely under the laws established by the State of Texas concerning
       anticompetitive misconduct affecting Texas citizens and patients.

12.3   In Tom Green County the Plaintiffs are in competition with the Defendants. Defendants
       have derlived or attempted to derive illegal benefit and patient choice and option for care
       was imp~operly
               !
                      limited in Tom Green and contiguous counties. The area of service the
       Defendants are trying to control is Tom Green and contiguous counties. The Defendants
       are trying to restrain competition in these counties
                 I
                 I

12.4   Defendaiits actions are in furtherance of the combination and conspiracy and with the
                 I


       purpose Eµtd intent of excluding the Plaintiffs from the patient care market in the relevant
       market drscribed above and destroying competition from Dr. Montoya and causing a
       resulting (loss and cost to patients. These acts were done with the specific intent to harm
                 I


       both Dr. jMontoya and patients in the relevant market.      These acts were done with the
       specific ~tent to weaken or eliminate completion from the Plaintiffs and injure patients
       and obtai~ market dominance in the relevant market. ·
                 I
12.5   The actitjns also hurt the patient population in the relevant market by removing or trying
                 I
       to removt completion in the practice of nephrology.
               l
12.6   The con4erted actions of the Defendants were flagrant and willful and done for the
                 l
       purpose tf harming Dr. Montoya the Plaintiffs and patients and illegally and improperly
       diverting!the patients to the hospital owned practice.
                !
12.7   The acts jof the Defendants constitute illegal monopolization, attempted monopolization
       and /or {onspiracy to monopolize under applicable Texas law. This case is for the
       anticompbtitive actions of the Defendants posing a danger of monopolization and injuring
                 I
       consumet patients. The Defendants are hurting patients in the overall competition in the
       relevant i;narket.
                 i


12.8   Plaintiff ~ues under this cause of action for anticompetitive conduct and/or effect.

13.    Damages~
                 l
       The PiaiJtiffs
               i
                      sue for actual damages including consequential damages, mental anguish,
       lost busi~ess reputation, attorney's fees as allowed by law and other actual damages in
                 t

                 I
PLAINTIFF'S ~OURTH AMENDED ORIGilf-,,fETITION                                        Page 12 of 13
     the maximum amount of$ 6,400,000.00 plus attorney's fees and costs as allowed by law.
     An amount is also sued for statutorial additional trebling for exemplary damages do to the
     malicious and egregious conduct of the Defendants.

                                       Prayer for Relief

     For these reasons Plaintiff requests that:

     1.     Plaintiff prays that citation and notice issue as required by law and that the Court
            grant the relief requested in this petition.

     2.     Plaintiff be awarded damages within the jurisdiction limits of this Court.

     3.     Plaintiff be award exemplary damages within the jurisdictional limits of the
            Court.

     4.     Reasonable attorney's fees.

     5.     Costs of Suit.

     6.     Such other and farther relief to which Plaintiff may be justly entitled including but
            not limited to damages within the jurisdictional limits of this Court, pre and post
            judgment interest as allowed by law.



                                                   Respectfully Submitted
                                                  Paul Craig Laird II Law Firm, PLLC
                                                  Isl Paul Craig Laird II
                                                  By: Paul Craig Laird II
                                                  800 W. Airport Freeway
                                                  Suite 880 LB 6015
                                                  Irving, TX 75062
                                                  972-554-0929
                                                  214-260-4935- fax
                                                  pcl880@aim.com
                                                  SBOT 11795420
                                                  Attorney for Plaintiff




PLAINTIFF'S FOURTH AMENDED ORIGilf~ZETITION                                       Page 13 of 13
         t-
                                                       n)

                                                                                                                                                  I
                                                                                                                             llll/11~/llll/lllllllf
                                                                                                                                    'IPO'

        ,\LLERG£ES & SENSITIVITrtS O No Known ,\ller~lrs                                     O lbO kg                        CJ lnO cm
        UrttJG                                          REACTION


        2.                                                                 5.
       3.                                                                  6.


                             ( J Anolher brand or drug ldenllcal in rorm and content may be dispensed unless checked

                                          MPLETE THIS SECTION FOR PATIENTS WHO WTLL DE SENT TO A PATTENT ROO:W!
       Oaru·     lime
                                                                                                        0 ICU    O OB/l.&D
                              0 Pi1co In Ou1pn<ic111 S1ntu$ • ·




                                                                                          -·----·



  Physician Slgnalure
Physician Admission Orders
NS-2701-IOHMS             J0/10 (Rev. 07112)

                -- ......., ..····-
               rc..,,.·
                 -·.; ,t i•\ ';'I I:~! 1· 1
                      ,
                              ,·. I!>,
                                     ·,
                                          ··:-11
                                                   .
                                                    t \
          r


                                                                                                                                                   l~l l ~lllllllllli/111
                                                                                                                                                             'IPO'
         ALLERCJES & SENSITIVITIES O No l(nown Allerglu                          WEIGHT:._ _ _ O lb o kg                   HEIGHT: _ _ _ D In O cm
         DRUG                                              RUCTION               DRUG                                             Jlt.lCTIOl'I
        /1.                                                                      /4.
                                                                                                                                          l~
                                                                                                                                          : •: ,.,,'.,.
                                                                                                                                             l{ •
                                                                                                                                                     "'1:,

                                 J Another brand ol drug ldenilcal In form and conlenl may be dispensed unless checked
                                      COMPLETE THIS SECTION FOR PATIENTS WHO WILL BE SENT TO A PATIENT ROOM!
        Olio                     D_ Adp_l1to,lapatienl Sl1tus              UNIT (check oM):
                                0 Place in Obsemtion Slatus                0 Mcd/Surg    O Med-Tclemclry               O ICU     O OB/L&D
                            . . . 0 .P.laee.in Outpatient Stotus           0 Orhcr

                            ' -~~:ft2-t-_ . ' -~          0 .      - ,s ---~.:. ~ ·:.-~- ? : . < t ~ ~-.- -
      ····-····,-·-·-· _
                       .. ·-.,_________ .,____ .. -- -----·-·~ - ~->ie.-r;;;_ ' ...
     l~'-'Y::.. -'~q:;:f!:: rfi <Jifo ~: ... -- _(2 _. - . . . ...
                    H.. . .•        ~~7/Jf,                                     ·---~··1--· .....
     ~- --··l .• "· ~ ·-· --             ~ ~~,-b,-r-xr-7V'Vff'· r 7 r r ~--- ..
     . . -1'-····../. ·- -··· Zi1t.l)ij[______ · ·-.~--·-· ..... -.ii7. -·..                                                   ·-·- .. ·_:_.. ... - --
      -- .-. -· .. ......·-·f:!~~~~v<:--~-1~ C2...xl /-/L~-
     . ~ ..·.-.)~ .: · ~ ·~_::.·_- - - ~
      · -· I- - · ·· · ----
                                       - ·-~ ~~ ~:--~~-~ -~:: ! -~
                                                           trP
                                                                 . /~
                                                                     d ~ //~ icr-~/-z.                                               :,M}-7;R'!Y-9
                                                                                                                                                  >
 . .::r:~~~~~~@=----.- : -=:· -~
              l

                                                                                                                    ~~~:-        · ._
 -· ·   -···,·-··- · .. ~                                            ---···- -····     ... .   - ·- ··-··- -- .... ·--- - ..
 .    . ....... - - ··- ...·..... -·· ...---·- --·------- ··-- .                               .... ·- .. - ··-

     ··-·- ~ - ... - ... --·---~-- ··- - -·-- -
 .. --l- -. .. - -... ·--·· ---- - - -··- ·..-
 ..... !-·--- ·-· · --· ·- --·· ·- - --- ------··· ...
::· F. :.. ~~~:=
               ·-~ -~-==·..
          i                     -




......--.L-.                -·--------·-·-------- ·
                                                                                                                       Date                Time
     P~ysfd~n Signature

Physician Adrciissym Ot_ders . ..
NS-2701-IOHMS                 J0/10    (ReV. o,J12r         Page l of I

                  7:,, t, _'.6·~< I-   ,t1
-------------·· .... ········-·-----------··-·---·--·-···--·--- · -    ····--·····-···········. ···-· .....   ·-···-·-----




                 12/16/2015 WBD 13123          FAX 3252244284 West Toxo, Nophrology ••• CRAIG LAIRD M'TORNBV                 llJ003/00 3




                          Aprll 17, 2014




                          I am Karan~ Tims~· the· daughter of Eunice Welch. I am writing to you on her behalf
                          concerning ·hetadrnlssfon to SACMC on 11/28/2011. When -asked by the ER admission
                          staff.: wctr.eplled that "Dr. Montoya" was her doctor. We were admitted to the
                          hcspltalfsta'· aervtce. We do not appreciate the fact that we did not have our physician
                          of ohbfce at1he hospital. Please correct this to help maintain quality patient care.


                         Sincerely,
                         Karen Tims      ?,
                         ?(.u.-11~
                         Stateof      ~fJ.J
                         County o f ~             ~              .
                         Su~bed and·swo~ to before me this           _.f1!t;;of,__.~"""-4~-
                                                                                        .... ----'-..:...~---..:..l_fl'--




                             ;·RoamiARY~,=.
                              My~':   .. .·
                     •          Auguat11. 20




                                                                           175
                                                                                                                    11111 !IIll11111~11111111
                                                                                                                           "2PBOR•


                                       Notlc~ of Patient Rights and Responslbllltles
    You have the right to:
    • Be treated In a dignified and respectful manner and lo         • Receive Information about lhe outcomes of your
      receive reasonable responses to reasonable requests              care, treatment and services, Including unanticipated
      for service.                                                     outcomes.
    • To erteotlve communication that provides fnformaUon In         • Give or withhold Informed consent when making
      a manner you undersland, In your preferred language
      with provisions of lnterpreUng or translallon services,          decisions about your care, treatment and services.
      at no cost and In a manner that meets your needs In
      the event of vision, speech hearing or cognitive               • Receive Information about benefits, risks, side
      Impairments. lnformaUon should be provided In easy to            effects to proposed care, treatment and services: the
      understand terms that wlll allow you to formulate                likelihood of achieving your goals and any potential
      Informed consent.                                                problems that might occur during recuperation from
                                                                       proposed care, treatment and service and any
   • Respect for your cultural and personal values, beliefs            reasonable alternatives to the care, treatment and
    . and. preferences. ---·· - -   -       .           .              services proposed,
  ~ •.f~rsQo~! imya,.w... pr~QY Qf. Y.9.Vr heol!h loforcnaUon        • Give or withhold fnformecf conseritto~recordlngs,              ...
     and to. receive a nollce of the faollfty'e prlVaoy
     pracUces.                                                         fllmlng or obtaining Images of you for any purpose
                                                                       other than your care.
   • Pain management.
                                                                     • Pardclpate In orrefuse to participate In research,
   • Accommodation for your rellglous and other spiritual              fnvestfgatJon or cllnlcal ~lals wltho~ Jeopardlzlng
     services. .  .               -                                    your access to care and services unrelated to the
   • ·Te aooess.rreque~t a.~endmen1. to and obtarn           ·         research.
     lnformaUon on dfscf9$urea of your health lnrormallon In
     accordance. with law and·regulallon within a .                 • Know the names of the praotJUoner who has primary
     reasonable time frame.                                           responsibility for your care, treatment or services and
                                                                      the names of other practitioners providing your care.
   • To have:a·tanttly:m~.rnber, friend or other support
     fndfvlduano:ba.:p~Q'ent Wlt'1 you during the CQurse of         • Formulate advance directives concerning care to be
     ~ur- stay, unless-tnat ·pereon'f.presence Infringes on           received at end•of•llfe and to have those advance
     others' rights, safety otls medfcally oontralndlcated.           directives h~nored to the extent of the facUlty's
  • eare·o, services provided withoufdlsorlmlnatlori based            abfflty to do so In accordance with law and regulation.
                                                                      You also have the right to review or revise any
    ·on ~ge, race, ethnlclty,.rellglon, culture, language,
     physToal or mental·dlsablllt~ socloeconomlo stalus,              advance directives.        ·
     sex, sexual·olfentatfon, anti gender Identity or
     expression.                                                    • Be free from neglec~ exploltatlon; and verbal, mental,
                                                                      physical and sexual abuse.
  , Partlclpate·Jn decisions abou~ your care, lnoludlng
     develdplng yo.ur. treatm•nt plan, discharge P.lannlng          • An environment-that Is safe, preserves dignity and· ·
  · ·and ·JiavlnU!QUJ- fainffy.encr. personal physician
     promptly noUffed of your admission.                              contributes to a positive self-Image.

  , SelecJ.r>19vlders of goods and services to be received          • Be free from any forms of restral nt or secluslon. used
    alterdlscharge.                                                   as a means of convenience, discipline, coercion or
                                                                      retallatlonj and to have the least restrictive method
  • Refuse care, treatment.or services In aooordance with             of restraint or secluslon used only when necessary to
    law and regulatlon and to leave the facility against              ensure patient safety.
    advice of tne physician.
  , Have a surrogate decision-maker parllolpate In oare,            , Access protective and advocacy services and to
    treatment and services deol~lons when you are unable              receive a list of such groups upon your request.
    to make your ow,, _decisions.   .
Patient BJgb·te ·and Responsibilities
ADM•l90l0f1MS,,tfX                          Page J of 2
                                                                J _ _ _ _ _ ___
04/11 (Rev. 08/12; 07/}_3, 03/14, 07/14)
                                                                J       PAT #1
                                                                        ADMIT DATB:
                                                                        SEX1    AGB1
                                                                                               CHART    #:
                                                                                                             DOB:
                                                                        ATT, OR, 1 .




                                                                      176
TABN0.2   _
                                                                                    Filed for Record
                                                                                    5/4/2016 6:35:37 PM
                                                                                    Sheri Woodfin, District Clerk
                                                                                    Tom Green County, Texas




                                  CAUSE NO. B-15-0285-C
STEVE F. MONTOYA, JR., M.D.                 §       IN THE DISTRICT COURT OF
WEST TEXAS RENAL CARE                       §
WESTTEXASNEPHROLOGY                         §
                                            §
VS.                                         §       119th JUDICIAL DISTRICT
                                            §
SAN ANGELO COMMUNITY                        §
MEDICAL CENTER AND                          §
KIRK BREWER, M.D.                           §      TOM GREEN COUNTY, TEXAS

                 PLAINTIFF'S SIXTH AMENDED ORIGINAL PETmON

       Plaintiff's STEVE F. MONTOYA, JR., M.D., West Texas Renal Care and West Texas
Nephrology file this Sixth Amended Original Petition and would show:

1.     This case should be conducted under Discovery Level Two until the Court enters a Level
       Three Scheduling Order.

2.     Plaintiff STEVE F. MONTOYA, JR., M.D. is an individual residing in Tom Green
       County, Texas. Plaintiff West Texas Renal Care is a Texas Corporation with its principal
       place of business in Tom Green County, Texas. Plaintiff West Texas Nephrology is a
       Texas Professional Association with its principal place of business in Tom Green County,
       Texas.

3.     Defendant San Angelo Community Medical Center (SACMC) is a Delaware LLC that is
       registered to do business in the State of Texas and has its principal place of business in
       San Angelo, Tom Green County, Texas. San Angelo Medical Center can be served by
       serving its registered agent Corporation Service Company d/b/a CSC-Lawyers
       Incorporating Service Company as its registered address, 211 E. 7th Street, Suite 620,
       Austin, Texas 78701.

       Defendant Kirk Brewer, M.D. is an individual whose principal place of business and
       residence is in Tom Green County, Texas. Defendant Kirk Brewer, M.D. can be served
       at his office at San Angelo Medical Center at 3501 Knickerbocker Rd., San Angelo,
       Texas 76904.



PLAINTIFF'S SIXTH AMENDED ORIGINAL PEmION                                           Page 1 of25

                                                JQQ
      Other participants in the anticompetitive conspiracy against Plaintiffs include Dr.
      Brewer's group of hospitalists (exact name unknown), West Texas Medical Associates
      ("WTMA") and groups affiliated with the hospital. These entities and individuals are not
      defendants at this time.

4.    Venue and Jurisdiction
      Venue is proper in Tom Green County under Tex.Civ.Prac. & Remedies Code Section
      15.002(a) (1) as all or a substantial part of the events or omissions giving rise to this legal
      action occurred in Tom Green County, Texas.

5.    Dr. Montoya, West Texas Renal Care and West Texas Nephrology, PA have incurred and
      sues for damages in the maximum amount of$ 6,400,000.00 plus three times exemplary
      damages plus attorneys' fees and costs as allowed by law. Until 2007 Dr. Montoya
      would receive 10-20 calls from the emergency room per month to treat either new or
      existing patients at the San Angelo Community Medical Center. Since 2008 Dr.
      Montoya has only received one call from the emergency room or a hospitalist for
      consultation as a nephrologist, except for one time for treatment of a new or existing
      patient that suffered with kidney disease/problems. The lack of referrals caused
      substantial injury to Dr. Montoya and damaged his ability to compete, because he
      depended on these referrals and consults to build his practice. A majority of patients who
      need kidney treatment/ suffer from kidney disease in a hospital later need continuing care
      for their kidneys or related problems; the most common of such continuing treatments is
      kidney dialysis. A typical kidney dialysis patient will need treatment for average of 6
      years, and each such patient would mean revenue to Dr. Montoya's practice of
      approximately $100,000 per year. Dr. Montoya estimates that he has lost at least 100
      long term kidney dialysis patients from 2007 to the present due to the Defendants'
      anticompetitive scheme to refuse to give him patient referrals or consults. He estimates
      that this lack of referrals has thus cost him $3,000,000 to $6,500,000 over that period of
      time.

6.1   Dr. Steve F. Montoya has practiced as a nephrologist since 1979 in San Angelo, Texas.
      Dr. Montoya has practiced at San Angelo Community Hospital since 1981. Dr. Montoya
      in developing, building and keeping bis practice, has always taken patients as an on-call

                                                                                        Page 2 of25
 PLAINTIFF'S SIXTH AMENDED ORIGI8~1PETITION
      staff attending physician from the emergency room/department of San Angelo
      Community Medical Center.

6.2   In developing and building a practice Dr. Montoya as a nephrologist wanted long tenn
      kidney dialysis patients to treat in his practice.     Referral from hospitals and area
      physicians is extremely important to a nephrologist to building and keeping a practice.
      The ability to obtain referrals from a hospital and area physicians is a primary source of
      patients with kidney disease. Defendants in this case conspired to deprive Plaintiffs of
      referrals needed for his nephrology practice. This case is for the anticompetitive actions
      of the Defendants posing a danger of monopoliz.ation or attempted monopoliz.ation of
      patient choice and causing patients to pay more for medical care and injuring consumer
      patients.

6.3   Besides word of mouth and patient to patient referral Dr. Montoya built his patient base
      from referring physicians, from referrals of patients who came to the emergency
      room/department and hospital patients with kidney disease. Dr. Montoya,s practice
      depends on finding a patient who lives in the service area/relevant market of San Angelo
      Community Medical Center and needs long tenn care which can include dialysis.
      Dialysis care is one of the primary ways Dr. Montoya and his entities succeed. Dr.
      Montoya during his 36 year career in San Angelo built his practice including a dialysis
      unit that can serve 24 patients per shift.

6.4   The service area/relevant market for San Angelo Community Medical Center is Tom
      Green County and contiguous counties. The service area/relevant geographic market, for
      the purposes of all of Plaintiff's claims for antitrust violations and other anticompetitive
      conduct, is Tom Green County and contiguous counties. Patients needing emergency
      care for kidney ailments are not likely to travel far from their homes for such treatment,
      so the relevant geographic market for hospital nephrology services and for nephrology
      consults and referrals is therefore Tom Green County and contiguous counties. Patients
      needing longer term nephrology services, such as kidney. dialysis, often need repeated
      and frequent care from a doctor or dialysis clinic near their home or residence. Such care
      is often required multiple times per week. Because patients are not likely to travel far for
      such repeated and frequent doctor and clinic visits, doctors and clinics located far from


PLAINTIFF'S SIXTH AMENDED ORIGIN3'cf2TITION                                          Page 3 of25
      Tom Green County are not a substitute for nephrology services in the Tom Green County
      area, and the relevant geographic market is therefore Tom Green County and contiguous
      counties. Patients needing emergency care for kidney ailments are also not likely to
      travel far from their homes for such treatment, so the relevant geographic market for
      hospital nephrology services and for nephrology consults and referrals is therefore Tom
      Green County and contiguous counties.
6.5   Dr. Brewer is thought be an employee and/or owner of a group of hospitalists affiliated
      with, and possibly created by, SACMC. Dr. Brewer is the chief of staff of the hospital
      and head of the hospitalist group that practices at San Angelo Community Medical
      Center.   Dr. Montoya has been denied the referral of patients that come into the
      emergency room with kidney problems/illness/disease. These patients are being referred
      to the hospital affiliated group. Even Dr. Montoya's current patients are being referred to
      the hospitalist/hospital affiliated group. The group affiliated with the hospital is costing
      the patient money because the patients have to pay for a hospitalist and are then being
      referred to a different nephrologist whose group has a contract/agreement with the
      hospital and its affiliated entities. The patients are denied the opportunity to save money.
      The hospitalist group charges the patients at a higher comprehensive rate/code.

6.6   At all relevant times Dr. Kirk Brewer, himself, as a principal officer of Community
      Medical Associates, San Angelo Community Medical Center and Chief of Staff of San
      Angelo Community Medical Center (SACMC) and head of the hospitalist system at
      (SACMC) with agents/employees of (SACMC) working under his control, direction, or
      in furtherance of unlawful and improper actions was and is employed by and acting in
      furtherance of the business of (SACMC) and its affiliated medical practice(s). Dr.
      Brewer is individually liable for his own illegal, improper acts and omissions. At various
      times Dr. Brewer acted for himself, (SACMC) and/or his group of hospitalists. Dr.
      Brewer is also liable for the improper acts and omissions as Chief of Staff of (SACMC).
      Dr. Brewer, as well as the other agents/employees of (SACMC) and/or its affiliated
      practices are liable under the doctrine ofrespondeat superior and vicarious liability.

6.7   The Defendants (SACMC) and Dr. Kirk Brewer, along with WTMA and Dr. Brewers
      group of hospitalists acting by and through its agents/employees/principals/officers acted



PLAINTIFF'S SIXTH AMENDED ORIGIN~jTITION                                             Page4 of25
       together to carry out the improper and illegal actions and therefore are jointly and
       severally liable for civil conspiracy in carrying out their wrongful activities.

6.8    All conditions precedent to Plaintiffs recovery have been performed or have occurred.
       Dr. Montoya is a hard working member of the San Angelo Medical Community. Dr.
       Montoya came out of San Antonio, Texas and received a full scholarship for his
       undergraduate degree at Rice University. After graduating Rice University Dr. Montoya
       then went on to medical school at The University of Texas Southwestern Medical School
       in Dallas, Texas. After Dr. Montoya finished his residency and training he went to in
       west Texas. Dr. Montoya built a stellar reputation for quality patient care, excellence in
       the practice of nephrology and dialysis care of the long term illness of kidney
       failure/disease. Dr. Montoya's reputation in the medical community in the San Angelo
       areaffom Green County allowed him to regularly obtain referrals for nephrology work
       from the emergency room at SACMC, as well as consults for nephrology work from
       other doctors at SACMC. These referrals and consults were and are necessary for Dr.
       Montoya's continued presence as a competitor in the market for nephrology services in
       the San Angelo/fom Green County area. Dr. Montoya relied on these consults and
       referrals to build his nephrology practice, for once he had consulted on a patient, that
       patient was likely to remain a patient of Dr. Montoya's if that patient needed continuing
       kidney care such as dialysis.

6.9    Dr. Montoya is the only nephrologist in San Angelo that speaks Spanish. Dr. Montoya
       cares about his patients, his fellow medical professionals, and his community.             Dr.
       Montoya's practice has expanded over the years including with the referral from local
       physicians, the emergency room/department and hospital consultation because of his
       well-deserved reputation for quality patient care. These referrals are necessary for Dr.
       Brewer to compete.

6.10   Dr. Montoya's skill as a nephrologist was, until the hospital created its affiliated medical
       practice or entered into an exclusive contract with the group of hospitalists affiliated
       and/or managed by Dr. Brewer, a marketing asset for SACMC. Dr. Montoya received his
       rotating share of referrals of patients with kidney disease/illness/failure until SACMC



PLAINTIFF'S SIXTH AMENDED ORIGIN~4TITION                                                  Page S of25
       created its affiliated practice groups and/or entered into an exclusive contract with the
       group ofhospitalists affiliated and/or managed by Dr. Brewer.

6.11   The recommendation and referral through the emergency room/department directly
       affects the patient's choice of doctor. The doctor in turn decides the patient's course of
       treatment and what and how the patient is coded for billing on treatment.

6.12   The choice of doctor directly affects the patient's costs and expenses both in the short
       term and for long term care of kidney disease/illness/failure. Individuals with kidney
       disease can require care for the rest of their life which may include dialysis.

6.13   Improperly manipulating the doctor a patient receives care from creates a cost to the
       patient and improperly distorts free and informed patient choice and options for medical
       care.

6.14   The correct and appropriate way for any health care provider of emergency hospital
       services and nephrology service is to provide the highest quality of care to the patient.
       Patients deserve to have lower costs. The illegal and unjust way of treating patients is to
       manipulate their free choice in the market place. In this case the Defendants only
       referred a patient to a hospitalist; in a group affiliated with the hospital, then only refer a
       patient to a nephrologist in a hospital affiliated group. Defendants also maligned and
       then smeared a highly qualified nephrologist in practice at the same hospital.

6.15   Starting in 2008 Defendants decided to then have a covert whisper campaign and not
       refer any patients to Dr. Montoya.

6.16   The Defendants illegal and anti-competitive acts unfairly and wrongfully have cast Dr.
       Montoya's stellar reputation under a dark cloud. Also the patients of Dr. Montoya have
       been refused the services of Dr. Montoya when the patient is in the hospital. The patients
       are suffering in paying higher costs and expenses for their care.

6.17   Dr. Montoya was brought up on charges of incompetent patient care for misspelled words
       on a chart. These actions were just taken to discredit Dr. Montoya and his ability to
       practice medicine in San Angelo and at San Angelo Community Medical Center. None


PLAINTIFF'S SIXTH AMENDED ORIGIN~STITION                                                 Page 6 of25
         of the actions of the hospital were based on patient care but for retaliation after Dr.
         Montoya complained about the Defendants anticompetitive actions. The actions also
         were done to hurt the reputation of Dr. Montoya in advanced abilities in nephrology. Dr.
         Montoya corrected the "misspelled words" and harsh undeserved review of his charts
         continued. Despite the efforts of Defendants the railroading of Dr. Montoya was not
         successful.

6.18     The actions of the Defendants have a tendency to reduce or eliminate competition that is
         not offset by any countervailing procompetitive justification.


6.19     Dr. Montoya was admitted to practice nephrology at San Angelo Community Medical
         Center in 1981. Dr. Montoya has full staff privileges for the practice of nephrology at
         San Angelo Community Medical Center. The facts of the case are that Kirk Brewer,
         M.D. was during his actions an officer and/or Chief of Staff of the medical staff of San
         Angelo Community Medical Center. Kirk Brewer, M.D. was hired by San Angelo
         Community Medical Center to run the hospitalist service. As an officer of the staff and
         Chief of Staff Kirk Brewer, M.D. owed Dr. Montoya as a member of the staff a fiduciary
         duty to not interfere by direct or indirect action with his practice of nephrology at San
         Angelo Community Medical Center.
6.20     Kirk Brewer, M.D. came to San Angelo Community Medical Center in 2007. Dr.
         Montoya has long relied on obtaining patients is the fact hospital emergency room uses a
         rotating system of specialists admitted in that practice to see patients in the hospital and
         emergency room.      When you are the named specialist you receive a call from the
         emergency room physician that a doctor with your specialty is needed for a patient. A
         big part of Dr. Montoya's practice was obtaining new patients and treating existing
         patients that came to the emergency room and needed a nephrologist. Since 1981 Dr.
         Montoya has obtained new patients from the emergency room.


6.21     The one timeDr.Montoya received a consult for a new patient is described below. On
       January 24, 2014 Dr. Montoya was called by the San Angelo Community Medical Center
       emergency room physician on duty and the hospitalist Dr. Bartels. Dr. Bartels and the
       emergency room physician informed Dr. Montoya that a patient was diagnosed with acute


PLAINTIFF'S SIXTH AMENDED ORIGINWSTITION                                                Page 7 of25
   renal failure. Dr. Montoya was informed his name was on the call board in the emergency
   room as nephrologist on call. Both of the above doctors asked Dr. Montoya to consult
   concerning treatment for that patient Dr. Montoya gave initial consult advice/orders of
   treatment to both doctors. This consultation call was to Dr. Montoya at 9:38 p.m. Dr.
   Montoya informed them he would come see the patient and then review the test results and
   determine any additional treatment for the patient. Attached as Exhibit A is a true and
   correct copy of the redacted hospital record showing the facts on January 24, 2014.
   Until 2007 Dr. Montoya would receive 10-20 calls from the emergency room, per month to
   treat either new or existing patients at the San Angelo Community Medical Center. Since
   2008 Dr. Montoya has only received one call from the emergency room or a hospitalist for
   consultation as a nephrologist, except for one time for treatment of a new patient or existing
   patient that suffered with kidney problems. The lack of referrals caused substantial injury to
   Dr. Montoya and damaged his ability to compete, because he depended on these referrals
   and consults to build his business. Many patients who need kidney treatment in a hospital
   later need continuing care for their kidneys or related problems; the most common of such
   continuing treatments is kidney dialysis. A typical kidney dialysis patient will need
   treatment for four to eight years, and each such patient would mean revenue to Dr.
   Montoya's practice of approximately $100,000 per year. Dr. Montoya estimates that he has
   lost 10-12 long term kidney dialysis patients.per year from 2008 to the present due to the
   Defendants' anticompetitive scheme to refuse to give him patient referrals or consults. He
   estimates that this lack of referrals has thus cost him $3,000,000 to $6,500,000 over that
   period of time. All referrals now go to the nephrologist at an affiliated group of the hospital.
   This damage estimate is specifically incorporated by reference into all of Plaintiffs causes
   of action set forth infra.


6.22     On January 25, 2014 at 8: 10 a.m. Kirk Brewer, M.D. took over the hospitalists care of the
   patient as his rotation as the hospitalist started. Then without ever seeing the patient or the
   chart Kirk Brewer, M.D. cancelled Dr. Montoya's consult and treatment by Dr. Montoya
   and consulted another nephrologist. Dr. Montoya went to the call board and witnessed his
       name on call as the nephrologist on call on January 24 and 25, 2014. The San Angelo
   Community Medical Center is required to have an official EMTALA Medicare call list for
   on call physicians for the San Angelo Community Medical Center to take Medicare patients.

PLAINTIFF'S SIXTH AMENDED ORIGINWtTITION                                               Page 8 of25
   This is the list my name was on and was intentionally ignored. This also violates a patient's
   right to choose their physician. This list was followed until Dr. Brewer came to San Angelo
   Community Medical Center and took charge of hospitalists. The nephrologist he brough~ in
   for consult is one that is in a group that Kirk Brewer, M.D. has a contract for paid services.
   Dr. Brewer did not see the patient when he removed me as the treating nephrologist he
   issued the change via a telephone order (see Exhibit B). Kirk Brewer, M.D. without seeing
   the patient, or chart changed the patient's doctor. This change ofnephrologist was for Kirk
   Brewer, M.D.'s economic gain and caused Dr. Montoya economic loss. Attached as Exhibit
   Bis a true and correct copy of the redacted hospital record showing the facts on January 25,
   2014.
   Kirk Brewer, M.D. by his actions of removing Dr. Montoya as the nephrologist published a
   statement that Dr. Montoya was not a competent nephrologist to treat patients coming to the
   San Angelo Community Medical Center emergency room. Kirk Brewer, M.D. was aware
   that his actions would become known to the staff physicians of San Angelo Community
   Medical Center and that he was by conduct and a whisper campaign saying Dr. Montoya
       should not be allowed to treat patients at San Angelo Community Medical Center. These
       remarks caused hospitalists and other doctors at SACMC, as well as doctors and nurses in
       the SACMC emergency department, to cease and refuse to (a) admit patients to the care of
       Dr. Montoya, and (b) refer patients to Dr. Montoya for nephrology consults.


6.23      Attached to this petition as Exhibit C is the true and correct sworn statement that an
       existing patient of Dr. Montoya, Mrs. Welch tried to see Dr. Montoya in the emergency
       room of San Angelo Community Medical Center and that the emergency room would not
       call Dr. Montoya to treat his existing patient Mrs. Welch is over 90 years of age and Dr.
       Montoya has treated her for at least 20 years.
6.24      Another patient of Dr. Montoya, whose name is withheld per privacy rights, who is also
       over 90 years of age and has been a Dr. Montoya patient for at least 10 years requested Dr.
       Montoya when she went to the emergency room and she also was refused to see Dr.
       Montoya.




PLAINTIFF'S SIXTH AMENDED ORIGIN~~TITION                                                  Page 9 of25
6.25      A patient has the absolute right to be treated by their physician. Both of the above
       happened when Kirk Brewer, M.D. was President of the medical staff or an officer of the
       medical staff and when he was head of the hospitalist service when the above happened.

6.26      Again by the actions of the hospitalists and emergency room physicians who are
       controlled by their supervisors or lead physicians Kirk Brewer, M.D. through this actions
       defamed Dr. Montoya as a qualified physician or staff at San Angelo Community Medical
       Center.

6.27      Furthermore, Plaintiff is entitled to exemplary damages from the Defendant, because they
       acted with malice required to support an award of exemplary damages. Defendants have
       acted with a specific intent to cause injury to the Plaintiff.

6.28      Plaintiff sues under this cause of action for anticompetitive conduct and/or effect. The
       Plaintiff sues for damages that are within the jurisdictional limits of this Court.
          Causes of Action

          The causes of action are only under the laws of the State of Texas.

7.        Tortious Interference with current and prospective business/patient relations

7.1       The actions of the Defendants are tortiously interfering with patient choice and care. The
          actions are being taken by the Defendants to keep the Plaintiff from having a successful
          nephrology practice. Defendant's actions are such that they know that their interference
          will cause the Plaintiff damage in excess of the minimum judicial limits of the Court.

          Defendants intentionally interfered with Dr. Montoya's longstanding and continuous
          relationships with patients and referring physicians from the emergency room/department
          in a concerted effort to restrain completion and monopolize the practice of nephrology
          and the treatment of long term kidney disease in the relevant market described in this
          petition.

7.2       Every contract, combination or competition of the relevant defendants in restraint of trade
          or commerce is unlawful and is just as it is unlawful for any person to monopolize,
          attempt to monopolize or conspire to monopolize any part of trade or commerce.

PLAINTIFF'S SIXTH AMENDED ORIGIN~~TITION                                                     Page 10 of25
7.3   The Plaintiff pleads a reduction of competition in the relevant market in general to
      patients. A monopoly in this case is caused by the elimination of Dr. Montoya and is just
      as harmful as it would be if driving out competition in large groups. Removal of Dr.
      Montoya from the hospital and its relevant market will adversely affect and unreasonably
      affect overall competitive conditions and cost patients money. The Defendants through
      their actions are possessing or trying to possess monopoly power in the relevant market
      and the willful acquisition or maintenance of that power is distinguished from growth
      through business acumen.

7.4   The Defendants are engaging in anticompetitive conduct with a specific intent to
      monopolize and a dangerous probability of achieving monopoly power and the
      defendants' ability to lessen or destroy completion in the relevant market and cost
      patients money.

7.5   Patients are damaged by the actions of the Defendants by higher costs of care.

      Patients have an absolute right under the patients Bill of Rights attached as Exhibit D to
      "Participate in decisions about your care, including developing your treatment plan,
      discharge planning and having your family and personal physician promptly notified of
      your admission. Select providers of goods and services to be received after discharge."
      The Plaintiffs did not follow the Bill of Rights and violated the patient choice and
      damaged the Defendants in violating the Bill of Rights.

7.6   The actions of the Defendants are illegal and anticompetitive.

7.7   San Angelo Community Medical Center created its affiliated group of doctors affiliated
      with the hospital in both hospitalist groups and in a group named Community Medical
      Associates. These groups came into existence on or about 2006. Before these groups
      existed Dr. Montoya received his share of new patients from the hospital and emergency
      room. After these groups were formed Dr. Montoya received only one referral since
      2007.


8.    Tortious Interference with current and prospective business relations - Exemplary
      Damage


PLAINTIFF'S SIXTH AMENDED ORIGIN~Pc,TITION                                        Page 11 of25
      The Plaintiff will show that these actions, set forth above, of interference are done with
      malicious intent in interfering with the Plaintiff's right to peaceably conduct his business
      and are done out of spite and ill will towards Plaintiff. The Plaintiff is entitled to and
      sues for exemplary damages within the jurisdictional limits of this Court.

      Plaintiff sues under this cause of action for anticompetitive conduct and/or effect.

9.    Defamation Per Se

9.1   The statements of the Defendants constitute defamation per se in that they suggest that
      the Plaintiff is not a competent nephrologist and should not be referred patients.

9.2   The Defendants have published the above statements on numerous occasions through a
      whisper campaign and their conduct.

9.3   The defamatory statements are false. Defendants have and are publishing the remarks to
      individuals and entities to harm the Plaintiff and to remove all competition illegally in an
      anti-competitive action.

9.4   The statements and actions of the Defendants were published by their conduct. The
      actions were referring to Dr. Montoya as a non-competent nephrologist.                  The
      statement(s)/ actions were defamatory and caused Dr. Montoya economics loss.

9.5   The total loss is between $3,000,000.00 and $6,500,000.00 from not receiving any
      referrals from the emergency room or hospitalists. Until 2007 Dr. Montoya would receive
      10-20 calls from the emergency room per month to treat either new or existing patients at
      the San Angelo Community Medical Center. Since 2008 Dr. Montoya has only received
      one call from the emergency room or a hospitalist for consultation as a nephrologist,
      except for one time for treatment of a new or existing patient that suffered with kidney
      disease/problems. The lack of referrals caused substantial injury to Dr. Montoya and
      damaged his ability to compete, because he depended on these referrals and consults to
      build his practice. A majority of patients who need kidney treatment/ suffer from kidney
      disease in a hospital later need continuing care for their kidneys or related problems; the
      most common of such continuing treatments is kidney dialysis. A typical kidney dialysis
      patient will need treatment for at least ten years, and each such patient would mean

PLAINTIFF'S SIXTH AMENDED ORIGIN~PfTITION                                            Page 12 of25
      revenue to Dr. Montoya's practice of approximately $100,000 per year. Dr. Montoya
      estimates that he has lost at least 100 long term kidney dialysis patients from 2007 to the
      present due to the Defendants' anticompetitive scheme to refuse to give him patient
      referrals or consults. He estimates that this lack of referrals has thus cost him $3,000,000
      to $6,500,000 over that period of time.


9.6   The defamatory statements are untrue.        Dr. Montoya is a competent and qualified
      nephrologist to treat patients at San Angelo Community Medical Center.

9.7   The actions of the Defendants were intentional or done with negligence when the
      Defendants knew that the statement was false and his actions would lead a reasonable
      prudent physician or patient knowing/believing of its defamatory potential.

9.8   All officers and President of the medical staff and the medical staff must follow the rules
      at San Angelo Community Medical Center and staff of San Angelo Community Medical
      Center and have a new patient in the emergency room or hospital that needs a specialist
      consultation assigned to the name off the rotating consultation list. By the Defendants.
      not following this procedure Dr. Montoya did not receive any consultation requests from
      the emergency room or hospitalist at San Angelo Community Medical Center in 2008-
      present and one in 2014.


10.   Malice

      By reference Plaintiff adopts and realleges the acts stated above as if they were set forth
      herein. For further cause of action, Defendant's conduct amounts to malice under the
      Texas Civil Practice and Remedies Code § 41.007 and the common law of Texas because
      Defendant's actions have and are involving an extreme degree of risk considering the
      probability and magnitude of the potential harm to others.           Plaintiff is entitled to
      exemplary damages and does hereby sue for them.

11.   Business Disparagement

      The Plaintiffs reallege the allegations and facts set forth above.



PLAINTIFF'S SIXTH AMENDED ORIGIN~P2TITI0N                                            Page 13 of25
       The Defendants published disparaging comments and allegations about Dr. Montoya and
       his practice. Defendants took the action(s) to harm the Plaintiff's business interests.
       Defendants knew the disparagement was false and the actions were done with malice.

12.    Restraint of trade      (Monopolization/Attempted Monopolization/ Conspiracy to
       Monopolize)

12.1   The Plaintiffs reallege and incorporate by reference the allegations and facts set forth
       above.

12.2   Plaintiff makes claim under the Texas Business and Commerce Code Sections 15.0S(b)
       and 15.21 known as the Texas Free Enterprise and Antitrust Act as it recognizes as illegal
       improper attempts to abuse the patient referral of the emergency room/department and
       hospital patients, as well as conspiracies to limit patient choices by concerted illegal
       action as engaged by the Defendants. The Plaintiffs seek relief for this anticompetitive
       action(s) solely under the laws established by the State of Texas concerning
       anticompetitive misconduct affecting Texas citizens and patients. The Defendants (along
       with WTMA and Dr. Brewer's group ofhospitalists) have monopolized and/or attempted
       to monopolize the relevant markets of nephrology services and/or referrals and consults
       for nephrology services by conspiring to deprive Plaintiffs of consults and referrals for
       nephrology services. By conspiring against Dr. Montoya, the Defendants and unindicted
       co-conspirators are attempting to remove him as a competitor to monopolize the markets
       for themselves.

12.3   In Tom Green County the Plaintiffs are in competition with the Defendants. Defendants
       have derived or attempted to derive illegal benefit and patient choice and option for care
       was improperly limited in Tom Green and contiguous counties. The area of service the
       Defendants are trying to control is Tom Green and contiguous counties. The Defendants
       are trying to restrain competition in these counties

12.4   Defendants actions are in furtherance of the combination and conspiracy and with the
       purpose and intent of excluding the Plaintiffs from the patient care market in the relevant
       market described above and destroying competition from Dr. Montoya and causing a
       resulting loss and cost to patients. These acts were done with the specific intent to harm


PLAINTIFF'S SIXTH AMENDED ORIGIN~~TITION                                            Page 14 of25
       both Dr. Montoya and patients in the relevant market.      These acts were done with the
       specific intent to weaken or eliminate competition from the Plaintiffs and injure patients
       and obtain market dominance in the relevant market.

12.5   The actions also hurt the patient population in the relevant market by removing or trying
       to remove completion in the practice of nephrology.

12.6   The concerted actions of the Defendants were flagrant and willful and done for the
       purpose of harming Dr. Montoya, the Plaintiffs and patients. Defendants illegally and
       improperly diverted the patients to the hospital affiliated practice. Each Defendant in this
       case (i.e., SACMC and Dr. Brewer), and WTMA and Dr. Brewer's group of hospitalists
       (eventual defendants) are being sued for their individual roles and conduct in the
       monopolization, attempted monopolization, conspiracy to monopolize, and group
       boycott/concerted refusal to deal. While each of these entities may have engaged in the
       illegal conduct through their agents or representatives, they are being sued for their
       individual roles and conduct and not simply under a respondeat superior theory of
       liability due to actions of Dr. Brewer.

12.7   The acts of the Defendants constitute illegal monopolization, attempted monopolization
       and /or conspiracy to monopolize under applicable Texas law. The Defendants have
       monopolized or have a dangerous chance of monopolizing the relevant product markets
       of nephrology services and referrals and consults for nephrology services. This case is
       for the anticompetitive actions of the Defendants posing a danger of monopolization and
       injuring consumer patients.        By restricting competition the Defendants are hurting
       patients in the relevant market.

12.8   Plaintiff sues under this cause of action for anticompetitive conduct and/or effect. While
       the Defendants' monopolization and attempted monopolization has harmed Dr. Montoya
       and his professional practice, it has also harmed consumers and others who pay for
       nephrology services in the relevant market by increasing the costs of those services. This
       is demonstrated by the chart attached hereto as Exhibit B. Before Dr. Brewer's group
       of hospitalists became the attending physicians for all nephrology patients at SACMC,
       nephrology patients would be referred to Dr. Montoya who would serve as the attending
       physician for the patient. This arrangement avoided the "middle man" which now exists,


PLAINTIFF'S SIXTH AMENDED ORIGIN~P4TITION                                            Page 15 of25
       as the hospitalists now usually serve as an additional charging entity between the patient
       and the nephrology specialist. Even if the hospitalists could do the same work as Dr.
       Montoya or his partner used to provide, the patient still faces increased cost for the same
       nephrology work, as the hospitalists charge more for physician services than Dr.
       Montoya charges. The SACMC hospitalists charge at the "Comprehensive" Medicare
       allowable rate, which adds up to average charges of$506.85 per day. See Exhibit. E. Dr.
       Mont~ya, however, charges at the "Moderate,, Medicare allowable rate, which adds up to
       an average cost of $346.13 per day. The difference between these charges is $160.72 per
       nephrology patient per average hospital stay.            Over the course of a year,
       consumers/payors for nephrology services have thus paid thousands more for the
       hospitalists' physician and nephrology services than they would have paid for care from
       Dr. Montoya who is a physician specialist in nephrology. This is a classic example of an
       antitrust injury, i.e. an injury to competition which the antitrust laws were made to
       prevent. This antitrust injury arises from the Defendants monopolization and attempted
       monopolization of the relevant markets for (a) nephrology services in the San
       Angelo/Tom Green County area, and {b) the market for referrals and consults for
       nephrology services in the San Angelo/Tom Green County area.

13.    Group Boycott and Conspiracy in Restraint of trade

13.1   SACMC, Dr. Kirk Brewer, Dr. Brewer's group ofhospitalists, and West Texas Medical
Associates ("WTMA") entered into a contract, combination or conspiracy in restraint of trade in
violation of Section 15.0S(a) of the Texas Antitrust Act. See Tex.Bus. & Com. Code Ann.§
15.0S(a). In furtherance of this conspiracy, the conspirators entered into an agreement by which
all new nephrology patients entering the SACMC emergency room would be admitted to a
hospitalist working in Dr. Brewer,s group ofhospitalists. The patients were admitted to these
hospitalists even when they were already a patient of Dr. Montoya, and even if they specifically
requested Dr. Montoya to be their attending physician. The hospitals would then refer the
patients to groups affiliated with the hospital. This combination deprived Dr. Montoya of patient
referrals he should have received for (a) new patients entering the hospital through the
emergency room, and (b) nephrology consults for patients already in the hospital. By favoring
hospitalists over Dr. Montoya, Dr. Brewer increased financial remuneration for himself because
these patients were being treated by hospitalists in his own group. Dr. Brewer and his group also


PLAINTIFF'S SIXTH AMENDED ORIGIN~~TITION                                             Page 16 of25
benefited by referring the patients groups affiliated with the hospital for nephrology services,
because Dr. Brewer and his hospitalist group receive payments from WTMA for providing
"coverage" at the SACMC emergency room for nephrology patients. In return for these
payments, Dr. Brewer and his hospitalists insure that all referrals and consults at SACMC for
nephrology services are made to groups affiliated with the hospital such as WTMA.



13.2   The combination between SACMC, Dr. Kirk Brewer, Dr. Brewer's group ofhospitalists,
and WTMA constitutes a concerted refusal to deal with Dr. Montoya which is a per se violation
of the Section 15.0S(a) of the Texas Antitrust Act. See Tex.Bus. & Com. Code Ann.§ 15.0S(a).
It would also violate the "rule of reason" as it unreasonably restrained trade and commerce in the
relevant market of nephrology services in the San Angelo area, as well as in the markets for
referrals and consults for nephrology services in the San Angelo area. This anticompetitive
conspiracy decreased patient choice and raised the price of care for those needing nephrology
services. Each Defendant in this case (i.e., SACMC and Dr. Brewer), and WTMA and Dr.
Brewer's group of hospitalists (eventual defendants) are being sued for their individual roles and
conduct in the monopolization, attempted monopolization, conspiracy to monopolize, and group
boycott/concerted refusal to deal. While each of these entities may have engaged in the illegal
conduct through their agents or representatives, they are being sued for their individual roles and
conduct and not simply under a respondeat superior theory of liability.



13.3   The conspiracy is a horizontal agreement in restraint of trade, as it involves a direct
competitor of Dr. Montoya (WTMA, a group affiliated with SACMC) that employs a
nephrologist for the provision of nephrology services in the San Angelo geographic market.
SACMC (along with Dr. Brewer and his group of hospitalists) has a dominant position and
market power in the market for nephrology services in the San Angelo area, and in the market for
referrals and consults for nephrology services in the San Angelo area. SACMC, Dr. Brewer and
Dr. Brewer's group ofhospitalists hold a dominant position in the relevant market, in that these
entities control the referral of all nephrology patients from within the SACMC hospital and
emergen~y room to specialists such as Dr. Montoya; these entities thus control access to an
element necessary to enable Dr. Montoya to compete. There are no pro-competitive effects from


PLAINTIFF'S SIXTH AMENDED ORIGIN3½P6TITION                                            Page 17 of25
this arrangement. The hospitalists and emergency room doctors at SACMC have agreed with
SACMC, Dr. Brewer, and Dr. Brewer's group ofhospitalists to only refer patients to, and ask for
consults from, nephrology doctors in groups affiliated with the hospital who are "approved" by
Dr. Brewer because they make payments to Dr. Brewer and his group of hospitalists. This
course of dealing increases the profits of Dr. Brewer, groups affiliated with the hospital and Dr.
Brewer's group ofhospitalists at the expense of competitors such as Dr. Montoya and is not
intended to enhance overall efficiency or to make markets more competitive. These allegations
are sufficient to raise a per se violation claim.

13.4   Each Defendant in this case (i.e., SACMC and Dr. Brewer), and WTMA and Dr.
Brewer's group of hospitalists (eventual defendants) are being sued for their individual roles and
conduct in the monopolization, attempted monopolization, conspiracy to monopolize, and group
boycott/concerted refusal to deal. While each of these entities may have engaged in the illegal
conduct through their agents or representatives, they are being sued for their individual roles and
conduct and not simply under a respondeat superior theory of liability.



13.5    While the conspirators' concerted refusal to deal has harmed Dr. Montoya and his
professional practice, it has also banned consumers and others who pay for nephrology services
in the relevant market by increasing the costs of those services. This is demonstrated by the
chart attached hereto as Exhibit E. Before Dr. Brewer's group ofhospitalists became the
attending physicians for all nephrology patients at SACMC, nephrology patients would be
referred to Dr. Montoya who would serve as the attending physician for the patient. This
arrangement avoided the "middle man" which now exists, as the hospitalists now usually serve
as an additional charging entity between the patient and the nephrology specialist. Even if the
hospitalists could do the same work as Dr. Montoya or his partner used to provide, the patient
(and/or insurance and taxpayer-funded Medicare/Medicaid) still faces increased cost for the
same nephrology work, as the hospitalists charge more for physician services than Dr. Montoya
charges. The SACMC hospitalists charge at the "Comprehensive" Medicare allowable rate,
which adds up to average charges of $506.85 per day. See Exhibit E. Dr. Montoya, however,
charges at the "Moderate" Medicare allowable rate, which adds up to an average cost of $346.13
per day. The difference between these charges is $ 160.72 per nephrology patient per average


PLAINTIFF'S SIXTH AMENDED ORIGIN~PfTITION                                             Page 18 of25
hospital stay. Over the course of a year, consumers/payors for nephrology services have thus
paid thousands more for the hospitalists' physician and nephrology services than they would
have paid for care from Dr. Montoya who is a physician specialist in nephrology. This is a
classic example of an antitrust injury, i.e. an injury to competition which the antitrust laws were
made to prevent. This antitrust injury arises from the conspirators' group boycott/concerted
refusal to deal with Dr. Montoya, as well as with the Defendants' monopolization and attempted
monopolization of the relevant market.

14.    Restraint of Trade/ Tortious Interference by Violating EMTALA-

14.1   The Emergency Medical Treatment and Active Labor Act (hereinafter EMTALA) is
Section 1867(a) of the Social Security Act, and is codified within the section of the U.S. Code
which governs the Medicare program. (42 USC 1395cc)                    The Healthcare Financing
Administration (hereinafter HCFA) is the federal agency that governs Medicare payments and
has the statutory authority to issue regulations concerning the implementation of EMTALA.
(HCFA Interpretive Guidelines V-15)


14.2   EMTALA is a statute which governs when and how a patient must be (1) examined and
offered treatment or (2) transferred from one hospital to another when he is in an unstable
medical condition (3} the list of doctors on staff that are on call and the fair assignment of
patients to doctors.     42 USC JJ95cc(a){l)(I)(iii), HCFA Interpretive Guidelines V-15 ,
Emergency Dept. Compliance and Reimbursement Insider, May 2000,1-5.                  The statute is
sometimes referred to as the anti-patient dumping act.


But in this case it does not involve patient dumping but the refusal to follow the mandatory call
list of EMTALA to fairly distribute the paying nephrology patients under Medicare or private
insurance.


14.3    San Angelo Community Medical Center is Required to Maintain the Call List


Medicare -participating hospitals must maintain a list of physicians who are on call to provide
emergency care to individuals presenting to the emergency room. (42 USC 1395cc(a)(J)(I)(iii))



PLAINTIFF'S SIXTH AMENDED ORIGIN~P~TITION                                              Page 19 of25
Under EMTALA the hospital and its officers are responsible for maintaining an on-call roster for
the emergency department. (42 USC J395cc(a)(l)(/)(iii))


San Angelo Community Medical Center is a Medicare -participating hospital.


The governing board and staff of the hospital must set standards for on-call services and a call
list and require that medical staff bylaws appropriately address the issue of call rotation, the call
list, and ensure the staff is properly accountable for the enforcement and compliance with the
requirements ofEMTALA. 42 USC 1395cc(a)(l)(l)(iii) ,42 CFR 482.11 and 42 CFR 482.22.


14.4   All nephrology patients that go on to dialysis are covered under Medicare- thus are
paying patients for the doctor and hospital


Physicians on staff are required to take all the referrals in their specialty. (HCFA Interpretive
Guidelines V-15)


A patient presenting for nephrology care is automatically placed under Medicare after their
initial diagnosis and Medicare pays the nephrology care even if the patient is under 65 and would
ordinarily be Medicare eligible. While in a hospital, inpatient hemodialysis is available, which would
be covered by Medicare Part A. This coverage by Medicare Part A is temporary and when the patient
leaves the hospital the patient is covered by Medicare Part B for hemodialysis in dialysis facilities
(Medicare      Coverage        of     Kidney       Dialysis      and      Transplant       Services".·
www.medicare.gov/Publications/Pubs/pdf/10128.pdj)
Thus all nephrology care is paid for either by private insurance or Medicare and is a financial
benefit to the hospital and on call physician.


14.5 EMTALA apply in this case


EMTALA applies to "participating hospitalstt under Medicare -          i.e., to hospitals which have
entered into "provider agreementstt under which they will accept payment from the Department
of Health and Human Services, Centers for Medicare and Medicaid Services (CMS) under the
Medicare program for services provided to beneficiaries of that program. In practical terms, this


PLAINTIFF'S SIXTH AMENDED ORIGIN~,TIT!ON                                                Page20 of25
means that it applies to virtually all hospitals in the U.S., with the exception of the Shriners'
Hospital for Crippled Children and many military hospitals. Its provisions apply to all patients,
and not just to Medicare patients. Thus the requirements apply to San Angelo Community
Medical      Center      hospital      as     a     participating       hospital   under     Medicare.


The avowed purpose of the statute is to prevent hospitals from rejecting patients, refusing to treat
them, or transferring them to "charity hospitals" or "county hospitals" because they are unable to
pay or are covered under the Medicare or Medicaid programs and to fairly distribute patients
coming to the emergency room between physicians so the physician receives paying and non-
paying patients. (42 USC 1395cc (a)(l)(l)(iii)), HCFA Interpretive Guidelines V-15.


14.6 Does EMTALA apply only to people without insurance?
No. The statute expressly provides that the Act's provisions apply to all patients "whether or not
eligible for Medicare benefits". 42 USC 1395dd(a). Thus the facts of this case are subject to the
fair distribution of patients to all nephrologists that are on staff.


Despite the fact that the purpose of the statute is to prevent ''patient dumping", there is no
requirement that the patient in fact be unable to pay his bills or that there be an economic
motivation behind the decision to transfer the patient. Cooper v. Gulf Breeze Hospital, 839 F.
Supp. 1538 (1993). This is a key in this case, the patients coming to the emergency room for
nephrology care are guaranteed to pay the doctor for services through Medicare.


14.7    San Angelo Community Medical Center wants the paying patients to go to the other
neghrologist in the hospital owned or affiliated group and to not have Dr. Montoya receive his
fair share ofpatients.


14.8    The pumose of the call list is to allow all physicians to egually receive call and paying
and non-paying patients.

In this case the kidney disease patients are all paying patients under the government Medicare
program.

14.9 Fair Use of the Call List by the Hospital and Staff


PLAINTIFF'S SIXTH AMENDED ORIGIN~tf!TION                                                   Page 21 of25
The HCFA (Health Care Financing Administration) is concerned that the call list fairly rotate
between the specialty physicians that practice in the hospital. (HCFA interpretive guidelines V-
15).

Accepting privileges at a Medicare participating hospital, subjects a physician to the mandates
and penalties of EMTALA and thus all members of the medical staff become liable under
EMTALA. Inspector General v St. Anthony, DAB docket No C-98-460/Decision No. CR620
(Dept. of HHS Appeals Board, Civil Remedies Division, October J999) DAB docket No A-2000-
12/Decision No DAB1728, June 5, 2000. Physicians are required to follow EMTALA that have
staff privileges in a hospital that is covered by EMTALA 42 CFR 1003. J02 (C) The demands
of a hospital and the staff under EMTALA is to require the distribution of paying and non-
insured/paying patients equally. 42 USC 1395dd(I) and 42 USC 1370a-7a.

In this case the call list was not followed and the requirements of EMTALA were violated
individually and as chief of staff by Dr. Brewer and the hospital. Dr. Brewer and the hospital
violated EMTALA and interfered with Dr. Montoya receiving patients through the call list as
required by EMTALA.

All the actions of both Dr. Brewer and the hospital were for monetary gain to have the hospital
affiliated groups prosper and squeeze out the physician Dr. Montoya who is not part of the
hospital affiliated group.

14.9 Additional regulatory provisions - the "snitch rule"
The regulations do include a provision which imposes a very significant obligation on receiving
hospitals. The regulation, at 42 CFR 489.20(m), obligates a participating hospital "to report to
[CMS] or the State survey agency any time it has reason to believe it may have received an
individual who has been transferred in an unstable emergency medical condition from another
hospital in violation of the requirements of Section 489.24(d)." This regulation became effective
on September 29, 1995. Note that it requires reporting only when a patient has been improperly
transferred; it does not require reporting other known or suspected violations.
San Angelo Community Medical Center has violated this provision.

14.10 Summary of violations of EMTALA-




PLAINTIFF'S SIXTH AMENDED ORIGIN~fTITION                                             Page22 of25
San Angelo Community Medical Center has violated EMTALA to the economic harm of the
Plaintiff Dr. Montoya.

I .EMTALA requires a fair and rotating call list for all specialists at the hospital.

2. San Angelo Community Medical Center is a Medicare -participating hospital.
3. San Angelo Community Medical Center is wider the EMTALA rules and mandates.

4. Dr. Brewer individually and as chief of staff is under the EMTALA rules and mandates.

5. Nephrolog_y patients receive Medicare and thus         the hospital and treating physician are
guaranteed pument for services thus the call list generates guaranteed fees for the medical
services.

6. In this case the call list was not followed and the requirements of EMTALA were violated by
San Angelo Community Medical Center. San Angelo Community Medical Center violated
EMTALA and kept with Dr. Montoya from receiving patients through the call list as required by
EMTALA.

7. In this case the actions of the Defendants in not following the requirements of EMTALA
violated the restraint of trade and tortious interfered with existing and potential patient
relationships to the detriment of the Plaintiffs causing the Plaintiffs damage.

14.10 Each Defendant in this case (i.e., SACMC and Dr. Brewer), and WTMA and Dr. Brewer's
group of hospitalists (eventual defendants) are being sued for their individual roles and conduct
in the monopolization, attempted monopolization, conspiracy to monopolize, and group
boycott/concerted refusal to deal. While each of these entities may have engaged in the illegal
conduct through their agents or representatives, they are being sued for their individual roles and
conduct and not simply under a respondeat superior theory of liability.

15.     Damages-

        The Plaintiffs sue for actual damages including consequential damages, mental anguish,
        lost business reputation, attorney's fees as allowed by law and other actual damages in
        the maximum amount of$ 6,400,000.00 plus attorney's fees and costs as allowed by law.




PLAINTIFF'S SIXTH AMENDED ORIGIN~TITION                                                 Page23 of25
    An amount is also sued for statutorial additional trebling for exemplary damages do to the
    malicious and egregious conduct of the Defendants.

    Until 2007 Dr. Montoya would receive 10-20 calls from the emergency room per month
    to treat either new or existing patients      at   the San Angelo Community Medical
    Center. Since 2008 Dr. Montoya has only received one call from the emergency room or
    a hospitalist for consultation as a nephrologist, except for one time for treatment of a new
    or existing patient that suffered with kidney disease/problems. The lack of referrals
    caused substantial injury to Dr. Montoya and damaged his ability to compete, because he
    depended on these referrals and consults to build his practice. A majority of patients
    who need kidney treatment/ suffer from kidney disease in a hospital later need continuing
    care for their kidneys or related problems; the most common of such continuing
    treatments is kidney dialysis. A typical kidney dialysis patient will need treatment for at
    least six years, and each such patient would mean revenue to Dr. Montoya's practice of
    approximately $100,000 per year. Dr. Montoya estimates that he has lost at least 100
    long tenn kidney dialysis patients from 2007 to the present due to the Defendants'
    anticompetitive scheme to refuse to give him patient referrals or consults. He estimates
    that this lack of referrals has thus cost him $1,000,000 to $6,500,000 over that period of
    time.

                                      Prayer for Relief


    For these reasons Plaintiff requests that:
    1.      Plaintiff prays that citation and notice issue as required by law and that the Court
            grant the relief requested in this petition.

    2.      Plaintiff be awarded damages within the jurisdiction limits of this Court.

    3.      Plaintiff be award exemplary damages within the jurisdictional limits of the
            Court.

    4.      Reasonable attorney's fees.

    5.      Costs of Suit




PLAINTIFF'S SIXTH AMENDED ORIGIN~TITION                                           Page 24 of25
    6.   Such other and farther relief to which Plaintiff may be justly entitled including but
         not limited to damages within the jurisdictional limits of this Court, pre and post
         judgment interest as allowed by law.



                                               Respectfully Submitted
                                               Paul Craig Laird II Law Firm, PLLC
                                               Isl Paul Craig Laird II
                                               By: Paul Craig Laird II
                                               800 W. Airport Freeway
                                               Suite 880 LB 6015
                                               Irving, TX 75062
                                               972-554-0929
                                               214-260-4935-fax
                                               pcl880@aim.com
                                               SBOT 11795420
                                               Attorney for Plaintiff




PLAINTIFF'S SIXTH AMENDED ORIGIN~~,TITION                                        Page25 of25
                                                          n)                                 n)
          t-


                                                                                                                                     lll/1/lll//llllllllllll
                                                                                                                                            'IPO'

          ,\LLERG!ES & SENSITl\'!T!ES O No l(uown ,\ller~les                                     0 lbQ kg      HEIGH                 CJ In IJ cm
          urwo                          n&Acrro11

         2.
         3,


                               ( J Anolher brand of drug ldenllcal In /orm and contenl may be dispensed unless checked

                                            MPLETE TffiS SECTION FOR PATIENTS WF!O WfLL DE SENT TO A PATTENT ROO}f!
        001.:·     li111c              Adn1il lo f~p~lienl Storus
                                  0 l3ce in Ob1crvnti0n S1orus                                              0 ICU       O 0 8/L& D
                                  0 Pbcc in Oulpoticnl S1o1u1  ·




                                                                                           ---      -·


  Phy~/cltsn Slo,:iaruri,
Physician Admission Orders                                               ]                   .
                                                                                                    ...             .
                                                                         j
NS-2701 - IOHMS             10/10 (Rev. 07112)             Pn~o I u( I
                                      1r     1· 1"':-"\                                    ...
                 r- ',.".1 i•,I, ';'I
                  ·~,,':.:,\ ..·.·~..... ~!,      } ,.

                                                                             325
. .. --··   ~




                                                                (\
                          r


                                                                                                                                                                lllll/llll//~~1,1111
                                                                                                                                                                      '11'0'
                         ALLERCll!S & SENSTTCV('ITES O No TCnown Allcr~(cs                             WEIGHT:_ _ _ Q lb O kg                HEIGHT:_ _ _ 0 In O cm
                         DRUG                                              ntACT/0/'I                  onuc                                        IIUCTIOrl


                        ,1.                                                                            It
                                             J Anolhor brand o( drug (denilcol in form a.nd conlenl may be dispensed unless checked
                                I
                                iI              COMPLETE TBIS SECTION FOR PATIENTS WHO WILL BE SENT TO A PATIENT ROOM!
                        Dalo    / Ti1nc     . 0 Adi?.'! lo _lapatic.tll Sl11u1                UNIT (d,rck one):
                                             0 Place in Obscn'IUon Slll\u                     0 Mcd1Surg     O Mcd-Tclcmclry          O ICU        O OM.AD
                . ... . I                  . O. l?lace.fn Oulpaticnt Slorus                   0 Ocher

                               .'3~.. . . L,.O.,.e;.,..o~      . .   "i   .::i   ....,_,) - · -   SC : .').   ' 2 - 1 / ~ ~ .·
                     .... ····(·-··· ..... ··--------- · --·- .. . - -·--·---~d~-;,:;;~½ . .,
                      -~-- -~ ···:·~r-~-f=-rfi~/ifo2:d;_ _·-· ···- ··· -~.c. ... ..... - · · · ., ..

                     W;fi. . : _ _ ~!li/Jt:;:fiiii. --·.·. .
                  ---1-~i. -::.~-~ ~ -· F -2½- --~- ·
                  :·-::(~_>:~~:: - ~
                                   1
                                        ~~:~ =~;#/> / .
                     . - · /· .. - . - ···-~ t r f /                                 8 ~ ··/lr?5'f-1:7.U,,ul-?f-r_f!6Y/1}72/r¥-?
                     ... 1----.. -- .                                     ·----····- ·· · ... -····· .. ...... ·- ·-·-·                                 ..
                 -- -··1··--c ·~
                 ~--·   ·:·~.:~ ~-: -~--
                                        ·--~ ---··--
                                          .. -· -·
                                                   ·· .
                                                      . .-·-· -· ·
                                                                 --· · · ---
                                                     .. - - - ------- ··-- .
                                                                             -.
                                                                              .                         . ··-- ·· ·- ·· · ·-···
                                                                                                              ..... ··- ··-


                          1
                  ...... ,_ ... - ·- ..... -·- ----···-··-·-·- -
                      . - - · ..
                                                                             -
                                             ... ·- ·--·· ... -- - - - -··-·· · - . . .... ····--                        . ...   -·- · --· - ...


                :::;fl_~ : .:._ . ~~~~=~=~=-:~
                ..   . .. ... . . .... ·-- --·---·- .. --...·-- -··· ..
                                                                                                  ..
                ·····-···L-.         - · -- -- ·- - -·-·-- ··-·

                                                                                                                                      Dote                nme
                  Jl!iyslclan Signature
            Physician Adniissl,on O[ders . .,
            NS-2701-IOHMS                 10/lO (ncv. 07712)"               Page I o( I


                              r., t..: /;.,Cf        g
                                                                                                  326
12/16/2015 lfBD 13a2J   PAX )252244284 Weit Toxo, Nophrolo,v ••• CRAIG LAIRD ATTORNIY            i003/00l




       April 17. 2014




      I am Kanm, Tf~a~; -thti' diaghter of Eunice Welch. I am writing to you on her behalf
      concatnlng:her·admlsslon to SACMC on 11/28/2011. When asked by the ER admission
      staff,-we.tepllad that •or. Montoyaa was her doctor. We were admitted to the
      hoapftalfata•· service. We do not appreciate the fact that we dfd not have our physfcfan
      of choice at1ha hospftal. Please correct this to help maintain quality patient care.


      Sincerely.
      Karen 11ma        ?,
      7(.t.u-17~
     Stafeof       r:J,4t: •.J
     County of   dr, J,u,J
     Subso~ed snd·swo~ to before me t h i s $of_~~-
                                                 ........· _,._;J-11
                                                                 __1..,,.fe_·


                                 ·~~
                                 { Notary Public




                                                   327
                                        Notice of Patient Rights and Responslbflltles
    You have the right toi
    • Be treated In a c&.lnffied and respectful manner and to                 • Receive !nformaUon about lhe outcomes of your
      receive reasonabfe rasponses to reasonabfe requesls                       care, lrestmenl and services, fncJudlng unanUclpated
      for service.                                                              outcomes.
   • To eftectfve communfcallon that proVldes lnformauon rn
     a mamer you understand, In your preferred language                       • Give or wflhhold fnformed consent when making
     wilh provl&lons of fnlerpreUng or lransfaUon services.                     declsfons about your care, treatment and servfces.
     at no ccat and In a maMer lhat mBBts your needs In
     the event of vlsfon, sP9ech hearing or oognlllve                         • Receive Information about benefits, risks, sfde
     lmP.afrmenls, lnformaUon should ba provklad fn easy to                     effects to proposed care. treatment and services: lhe
     uncferstand terms that wur allow you to formulate                          flkeHhood of achieving your goals and any potenUal
     Informed consent.         . .       .                                      problems that mfght occur during recuperation from
                                                                               proposed care, treatment and service and any
   • Respect for ycur cultural and personal values, beliefs                    reasonable alternatives to the care, treatment and
     and praferencesi ... .         .                                          services proposed.                             ·
  .e ..&n
       rtd"R.~'1 P.,11,J~ P,llYILQYrof. Y.f.Ujl~~al1~
           ·cu rece,vv a nOl.i08 0 'U,e ICWI
                                                      !';l'Qrtnallon
                                              1,, 8 pr,vacy            . . • Give or withhold lnformecl' conserif torecorofngs,
     pracUcea.                                                               filming or oblafnln9 Images of you for any purpose
                                                                             other than your care,
   • ~arn management.
                                                                             • Partlcfpate rn or.refuse to partfcfpate rn researdl,
   • Accommodation ror·your reDglous and other aplrltual                       fnvestfgaUon or cUnfoal b1afs wttho~ Jeopatdlzfng
     BBM088. ·          ·                      ·
                                                                               your access 10 can, and services unrelated to the
  , lb aocess,·requ!'Jt ~endment to and obtain                         ·       research.
    lnformaUon on dlsclawrua of your health rnrormatron fn
    acoordanoe with law ind·regulallon wflhfn a                              • Know U1e names of the praatltfoner who has primary
    reasonable ·tfme frame.                                                    responsfb!llly for your care, treatment or aervfoes and
                                                                               tha names of olher practrtloners provfdlng your care.
  , lb hava a faJJtllY. member, friend or other support
    lndMduaJ to ba present With ycu durlng the course of                     • Formulate advance dlreotlves concemrng oare to be
    ~ur a~ unJess,lfiafP.9taorte .presence 1nrr1ngea on                        recelved at end-of.llfe and to have those advance
     other&' rfghts~ safety ~i la inedloiUy oon~lnd!cated.                     dlrectlves hQnored to the extent of the factUty's
  • 0are·orservfoaa provlded without dlsorlmlnatlori based                     abHlty lo do so In aaoordance with raw and regulaUon.
    '0~ age,_race, ethnfolJ».reffgJon, culture, raa,;uage,                     You also have the rfght to review or revrse any
     pnysJC81 or mental-cfiiblU~ accloaconomro status,                         advance directives.
     e~ sexuaJ-orfantaffon, an! gender Identity or
    expression.                                                             • Be free ftom neg!ec~ expfoltatfon: and verbal, mental,
                                                                              physfcal and sexual abuse.
  • PartrolP.18 In declsfons about your care, fndudlng
     deve~g your treatmQnt pf~tl; dlsoh1µge P.lannlng                       • An envlronmant,U1at ls safe, preserves dfgnlty and·
  · ·and·Havlng Y.our famtfy.and r>,rsonal physfclan
     p,ompUy notified of your 1dmlsslon.                                      contributes to a posruve self.fmage.
  • Select plOVfdera of goods and services to be received                   • Be frse from any forms of restraint or secruslon used
    after dlsoharga.                                    ·                     aa a means of convenience, dlsclpllne. coercion or
                                                                              retaffatfonj and to have the least restrfctlve method
  • Refuse care, treatment.or aervfoes fn accordance with                     of restraint or seclusfcn used only when neceaary to
    raw and regulaUon and ro leave lhe raclllly agafnal                       ensure patient safety.
    advice al ffia physfofan.
 • Have a surrogate deofsfon-maker partfo!para In care,                     • Access protective and advocacy sarvlces and to
   treatment and aervloes declsfona when you are unable                       receive a Bst of such groups upon your request.
   to make your O\l!J1.daoJalons. .
Patieni Rights and ResponslblUdes
ADM•l90l0JIMS.."J"Jt
04/11 (Rn081J2,07/~3. 03/14.07/14) ,
                                                   Pago I or2          ~·-------,
                                                                       .j       PAT 11                 CKAR.'1' #1
                                                                       d:       ADMI'l' OATB:                        DOB:
                                                                                SBXt    AOK1
                                                                                Aff, DR, I .




                                                                              328
                                        DR MONTOYA'S CHARGES MODERATE
                                                                                                            MEDICARE
DESCRIPTION                                   REQUIREMENTS                                    CPT           ALLOWABLE RATE
                                              1. A comprehensive history 2. A
                                              comprehensive exam 3. Medtcal Decislon
INPATIENT ADMISSION MODERATE                  making of moderate complexity                         99222 $            134.03
                                              1. An expanded problem focused lntetval
                                              history 2. An expanded problem focused
                                              examination 3. Medical decision making of
INPATIENT FOLLOW UP MODERATE                  moderate complexity                                   99232   s            70.76
                                              1. An expanded problem focused interval
                                              history 2. An expanded problem focused
                                              examination 3. Medical decision making of
INh"', IENT FOLLOW UP MODERATE                moderate complexity                                   99232 $              70.76
                                              1. Final Exam 2. Discussion of hospital stay
                                              3. Instructions for continuing care to all
                                              relevant caregivers 4. preparation of
                                              discharge records 5. Presciptlons and
INPATIENT DISCHARGE less than 30 min          Referral forms                                        99238   $·          7058
                                                                                                            $          346.13
                                        HOSPITALIST CHARGES COMPREHENSIVE
                                                                                                            MEDICARE
DESCRIPTION                                                                                   CPT           ALLOWABLE RATE
                                               1. A comprehensive history 2. A
                                               comprehensive exam 3. Medical Decision
INPATIENT ADMISSION COMPREHENSIVE              making of high complexity                            99223 $            198.47
                                               1. A detailed interval history 2. A detailed
                                               examination 3. Medica! decision making of
 INPATIENT FOLLOW UP COMPREHENSIVE             high complexity                                      99233   s          101.94
                                               1. A detailed Interval history 2. Adetailed
                                               examination 3. Medical decision making of
 INPATIENT FOLLOW UP COMPREHENSIVE             high complexity                                      99233 $            101.94
                                               1. Final Exam 2. Discussion of hospital stay
                                               3. Instructions for continuing care to all
                                               relevant caregivers 4. preparation of
                                               discharge records 5. Presciptlons and
 INPATIENT DISCHARGE more than 30 min          Referral forms                                       99239 $            104.50
                                                                                                            $          506.85
                                                                 -   -   -
                                               TOTAL D1FFERE8tL ~                                           $          (160.72)
Difference between Dr. Montoya, Independent physician billing and hospital stav         $      100      .I
for average of 4 days for an In-patient at SACMC with Dr. Montoya, bllllng
medicine at the moderate level compared to Dr. Brewer and the Hospitalist billing
comprehensive.
Multiply average admissions per day-4                                                   $      400
Multiply for one year                                                                   $   146,000
Multiply for total number of Independent physicians affected by Hospitalists'           $ 1,460,000
pattern of restraint -10% (10)                                                      I
Multiply by number of years - 8 for one hospital                                    ; $ 11,680,000
Multiply by 200 Hospitals                                                               $ 235,600,000
    TABN0.3




/
                                                                                     Filed for Record
                                                                                     12/8/2015 3:47:43 PM
                                                                                     Sheri Woodfin, District Clerk
                                                                                     Tom Green County, Texas



                                     CAUSE NO. B-150,285-C

STEVE F. MONTOYA, M.D.,                            §   IN THE 119TH DISTRICT COURT
WEST TEXAS RENAL CARE, and                         §
WEST TEXAS NEPHROLOGY,                             §
                                                   §
         Plaintiffs,                               §
                                                   §
vs.                                                §   OF
                                                   §
SAN ANGELO COMMUNITY MEDICAL                       §
CENTER and KIRK BREWER, M.D.                       §
                                                   §
         Defendants.                               §   TOM GREEN COUNTY, TEXAS


                DEFENDANT KIRK BREWER, M.D.'S MOTION TO DISMISS
                AND FOR RECOVERY OF COSTS AND ATTORNEY'S FEES

TO THE HONORABLE COURT:

                 COMES NOW Defendant, Kirk Brewer, M.D., (hereinafter "Brewer") and

respectfully moves the Court to dismiss the following causes of action asserted against Brewer

pursuant to Tex. Civ. Prac. & Rem. Code§§ 27.001 et. seq. on the grounds that Plaintiffs causes

of action violate the Texas Citizens Participation Act, and pursuant to Rule 91 a, Tex. R. Civ.

Proc. on the grounds that Plaintiffs causes of action have no basis in law or fact as demonstrated

below.

                                      I. Motion Timely Filed

         Section 27.003, Tex. Civ. Prac. & Rem. Code and Rule 9la.3, Tex. R. Civ. P. requires

this motion to be filed within 60 days after the first pleading containing the challenged cause of

action is served on the movant. The petition in this case was served upon Defendant Brewer on

October 9, 2015. Accordingly, this motion is timely filed.




DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS AND                                      Page 1 of IS
FOR RECOVERY OF COSTS AND ATTORNEY'S FEES


                                                 76
                          II. Causes of Action Asserted Against Brewer

       The causes of action alleged in the Plaintiffs' Petition are:

       (1)     Tortious Interference with Current and Prospective Business/Patient
Relations (pp. 5-6);
       (2)     Tortious Interference with Current and Prospective Business/Patient
Relations- Exemplary Damages (p. 7);
       (3)     Defamation Per Se (p. 7);
       (4)     Malice (p. 7);
       (5)     Business Disparagement (pp. 7-8)
       (6)     Restraint of Trade (Texas Free Enterprise and Antitrust Act) (p. 8-9).

       As demonstrated below, none of the causes of action pleaded have any basis in law or in

fact against Brewer.

                                   III. No Legal Basis for Claims

A.     The Court should dismiss Plaintifr s claim pursuant to the Texas Citizens
       Participation Act.

       This Court should dismiss Plaintiffs claims pursuant to the Texas Citizens Participation

Act ("TCPA") because his claims are based on, relate to, or are in response to Defendant's

exercise of his right to free speech. See Tex. Civ. Prac. & Rem. Code Ann. § 27.00S(b) ("[A]

court shall dismiss a legal action against the moving party if the moving party shows by a

preponderance of the evidence that the legal action is based on, relates to, or is in response to the

party's exercise of: (1) the right of free speech ...."). To avoid dismissal, a plaintiff must

establish "by clear and specific evidence a prima facie case for each essential element of [its

claims]." Id. at § 27.00S(c). If a plaintiff fails to meet this burden, the court must dismiss the

action and award attorneys' fees to the moving party. Id. at § 27.009. Plaintiff cannot meet this

demanding burden; dismissal of his claims is therefore warranted.




DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS AND                                        Page 2 of IS
FOR RECOVERY OF COSTS AND ATTORNEY'S FEES


                                                  77
       1. Plaintiffs' Claims Arise Out ofDefendant's Exercise of His Right to Free Speech

       Plaintiffs claims are premised on Defendant's communications regarding a matter of

public concern. Such statements are squarely within the TCP A. Plaintiffs claims should

therefore be dismissed with prejudice. The TCPA defines "[e]xercise of the right of free speech

[as] communication made in connection with a matter of public concern." Tex. Civ. Prac. &

Rem. Code Ann. at§ 27.001(3). A '"matter of public concern' includes an issue related to: (A)

health or safety; [or] (B) environmental, economic, or community well-being." Id. at §

27.0001(7).

       Specifically, Plaintiff alleges that Defendant: 1) engaged in a covert whisper campaign

and decided not to refer any patients to Plaintiff and 2) brought charges against Plaintiff relating

to incompetent patient care. Importantly, Plaintiff does not identify any actual statements in

which Defendant ever disparaged Plaintiff, or suggested that any entity should refrain from doing

business with Plaintiff. In fact, the only specific action alleged to have harmed Plaintiff - the

charges brought against Plaintiff relating to incompetent patient care - is statutorily protected

conduct pursuant to the medical committee privileges and immunities provided by the Texas

Occupations Code, §§160.001 et seq., 160.010 (and especially subsection (c) of that section), and

161.001 et seq., the Texas Health & Safety Code, §161.001 et seq. and 161.033, and the Federal

Health Care Quality Improvement Act, 42 U.SC., § 1110 I et seq.

       Furthermore, these charges relating to Plaintifrs patient care constitute free speech under

the TCPA because it fits within TCPA's definition of "communication[s] made in connection

with a matter of public concern," including: "health or safety" (Plaintiff is a:physician);

"community well-being" (Plaintiff practices medicine in the community in which Defendants

work and live); or "service in the marketplace" (Plaintiff provides medical services to the


DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS AND                                       Page 3 of IS
FOR RECOVERY OF COSTS AND ATTORNEY'S FEES


                                                  78
community in which Defendant works and lives). See Tex. Civ. Prac. & Rem. Code Ann. at§

27.001(7); Lippincott v. Whisenhunt, 462 S.W.3d 507, 509-10 (Tex. 2015) (holding that e-mails

sent by administrators at medical facility containing disparaging comments about certified

registered nurse anesthetist were communications made in connection with a matter of public

concern and were protected by the Texas Citizens Participation Act (TCPA); e-mails related to

whether nurse anesthetist properly provided medical services to patients, and included

allegations that nurse anesthetist failed to provide adequate coverage for pediatric cases,

administered a different narcotic than was ordered, falsified records, and violated facility's sterile

protocol policy); see also Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416

S.W.3d 71, 81 (Tex. App.--Houston [1st Dist.] 2013, no. pet. h.) (holding that articles relating to

the plaintiffs obligation to meet the licensing requirements and standards for operating an

assisted living facility were made in connection with a matter of public concern and related to the

exercise of free speech).

       Additionally, Plaintiffs pleadings fail to present a prima facie case on each of Plaintiffs

causes of action, because Plaintiffs pleadings are not clear and specific. "Pleadings that might

suffice in a case that does not implicate the TCPA may not be sufficient to satisfy the TCPA's

'clear and specific evidence' requirement." In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015) "[A]

plaintiff must provide enough detail to show the factual basis for its claim," including how the

"defendants damaged the plaintiff." Id. at 591. "[G]eneral allegations that merely recite the

elements of a cause of action ... will not suffice." Id. at 590. Additionally, "[b]are, baseless

opinions do not create fact questions, and neither are they a sufficient substitute for the clear and

specific evidence required to establish a prima facie case under the TCPA." Id. at 592. Without

more, allegations stating that a plaintiff suffered "direct economic losses and 'lost profits,"' are


DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS AND                                         Page 4 of IS
FOR RECOVERY OF COSTS AND ATTORNEY'S FEES


                                                  79
only conclusory and do not constitute evidence. Id.; see Coastal Transp. Co. v. Crown Cent.

Petroleum, 136 S.W.3d 227, 232 (Tex. 2004); Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122

(Tex. 1996) (per curiam); Wholesale TV & Radio Adver., LLC v. Better Bus. Bureau of Metro.

Dallas, Inc., No. 05-11-01337-CV, 2013 WL 3024692, at *4 (Tex. App.-Dallas Jun. 14, 2013,

no pet.) (mem.op.) (finding conclusory statements insufficient evidence of essential element in

TCPA case); Zanfardino v. Jeffus, 117 S.W.3d 495, 497-98 (Tex. App.-Texarkana 2003, no

pet.).

         Plaintiffs entire petition is based on, relates to, or is in response to Defendant's exercise

of his right to speak freely on issues relating to public health and safety. Therefore, Plaintiffs

causes of action should be dismissed pursuant to the TCPA.

B.       Plaintiff's Claims Have No Basis in Law

         Rule 91 a, Tex. R. Civ. Proc., provides:

                        "(A) party may move to dismiss a cause of action on the
                grounds that it has no basis in law or in fact. A cause of action
                has no basis in law if the allegations, taken as true, together
                with the inferences reasonably drawn from them, do not entitle
                the claimant to the relief sought."


1. Tortious Interference with Existing and Prospective Patients and Exemplary Damages

         The elements of tortious interference with an existing business relationship "are (I) the

existence of a contract subject to interference, (2) the act of interference was willful and

intentional, (3) such intentional act was a proximate cause of plaintiffs damages, and (4) actual

damage or loss occurred." Victoria Bank & Trust Co. v. Brady, 811 S. W.2d 931, 939 (Tex.199 I);

see Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925,926 (Tex.1993).

         "To establish ... tortious interference with prospective business relationships, a plaintiff

must show that ( 1) there was a reasonable probability that the parties would have entered into a

DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS AND                                         Page 5 of 15
FOR RECOVERY OF COSTS AND ATTORNEY'S FEES


                                                    80
business relationship; (2) the defendant committed an independently tortious or unlawful act that

prevented the relationship from occurring; (3) the defendant either acted with a conscious desire

to prevent the relationship from occurring or knew the interference was certain or substantially

certain to occur as a result of the conduct; and (4) the plaintiff suffered actual harm or damages

as a result of the defendant's interference." Plotkin v. Joekel, 304 S. W.3d 455, 487 (Tex. App.-

Houston [1st Dist.] 2009, pet. denied) (quoting Richardson-Eagle, Inc. v. William M Mercer,

Inc., 213 S.W.3d 469, 475 (Tex. App.-Houston [1st Dist.] 2006, pet. denied)); see Wal-Mart

Stores, Inc. v. Sturges, 52 S.W.3d 711, 713 (Tex. 2001). Independently tortious means "conduct

that would violate some other recognized tort duty." Sturges, 52 S.W.3d at 713. A plaintiff can

recover exemplary damages if he can show the interference was malicious. Seelbach v. Clubb, 7

S.W.3d 749, 757 (Tex. App.-Texarkana 1999, pet. denied).

       All of Plaintiffs allegations regarding his claim for tortious interference with existing

business and prospective patients, if taken as true, do not entitle Plaintiff to the relief he seeks

because as to Brewer, Plaintiff fails to allege, and there are no facts which support: I) the

existence of a contract which is subject to interference; 2) that there was a reasonable probability

that the Plaintiff and these prospective patients would have entered into a doctor-patient

relationship; or 3) that Brewer committed an independently tortious or unlawful act that

prevented the doctor-patient relationship from occurring. Plaintiff alleges generally that

Defendants interfered with Plaintiffs relationships with patients and referring physicians;

however, Plaintiff alleges no specific tortious or unlawful conduct against Brewer which, if true,

constitutes tortious interference with Plaintiffs ability to enter into a relationship with patients

and referring physicians, nor does Plaintiff allege that he is under a current contract with any

patients or physicians with which Brewer could interfere, nor has Plaintiff alleged any facts


DEFENDANT KIRK BREWER. M.D. 'S MOTION TO DISMISS AND                                       Page 6ofl5
FOR RECOVERY OF COSTS AND ATIORNEY'S FEES


                                                  81
which support a finding that there was a reasonable probability that Plaintiff would have entered

into said relationships, but for Brewer's conduct. Because Plaintiff cannot establish elements

essential to his claim for tortious interference with existing and prospective patient relations,

Plaintiffs claims for the same should be dismissed; further, without proof oftortious interference,

Plaintiffs claim for exemplary damages must be denied as well.

       Alternatively, Plaintifrs claim should be dismissed because a hospital, through its agents,

has a duty to engage in peer review of its physicians._Patel v. Midland Mem'l Hosp. & Med. Ctr.,

298 F.3d 333, 347 (5th Cir. 2002). Thus, any contractual interference caused by Brewer/s

exercise of this right with respect to Plaintiff was justified. See Friendswood Dev. Co. v.

McDade & Co., 926 S. W.2d 280, 282 (Tex.1996) ("A party is justified in interfering with

another's contract if it exercises (1) its own legal rights or (2) a good faith claim to a colorable

legal right, even though that claim ultimately proves to be mistaken."); Patel v. Midland Mem'l

Hosp. & Med. Ctr., 298 F.3d 333,347 (5th Cir. 2002).

2. Defamation Per Se

       Defamation is a false statement about a plaintiff published to a third person without legal

excuse which damages the plaintiffs reputation. Doe v. Mobile Video Tapes, Inc., 43 S.W.3d 40,

48 (Tex. App.-Corpus Christi 2001, no pet.); Moore v. Waldrop, 166 S.W.3d 380, 384 (Tex.

App.-Waco 2005, no pet.) To be considered defamation per se, the statement must (1) impute

the commission of a crime; (2) impute contraction of a loathsome disease; (3) cause injury to a

person's office, business, profession, or calling; or (4) impute sexual misconduct. Goodman, 50

S.W.3d at 140. Whether words are capable of the defamatory meaning the plaintiff attributes to

them is a question of law for the court. Musser v. Smith Protective Serv., Inc., 123 S.W.2d 653,

654-55 (Tex.1987); Moore v. Waldrop, 166 S.W.3d 380,384 (Tex. App.-Waco 2005, no pet.).


DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS AND                                       Page7 of15
FOR RECOVERY OF COSTS AND ATTORNEY'S FEES


                                                 82
If particular language alleged to be defamatory may, or may not, be so, according to other

facts or circumstances, then an innuendo is required in order to tender as an issue the fact

that the words conveyed to hearers the defamatory meaning. Montgomery Ward & Co. v.

Peaster, 178 S.W.2d 302, 305 (Tex. Civ. App.-Eastland 1944, no writ). Consequently,

innuendo should never be considered when interpreting defamation per se. The very

definition of "per se," "in and of itself," precludes the use of innuendo. Moore v.

Waldrop, 166 S.W.3d 380, 386 (Tex. App.-Waco 2005, no pet.) If the statement, taken

by itself and as a whole, is defamatory, it will require no extrinsic evidence to clarify its

meaning; it will stand alone. Burnaman v. J.C. Penney Co., 181 F.Supp. 633, 636-37

(S.D.Tex.1960); Moore v. Waldrop, 166 S.W.3d 380, 386 (Tex. App.-Waco 2005, no

pet.).

         Plaintifr s Original Petition fails to allege what, if any, defamatory statement

Brewer made against Plaintiff, and in what context, and to whom those statements were

made. Without establishing what the defamatory statement was that allegedly defamed

Plaintiff, innuendo is required to determine whether it is in fact defamatory, preventing

Plaintiff from prevailing on his claim for defamation per se. Plaintifrs defamation per se

claim should be dismissed accordingly.

3. Malice

         Plaintiff claims that he is entitled to exemplary damages for his claims for tortious

interference and defamation per se under Tex. Civ. Prac. & Rem. Code § 41.007 because

Brewer's conduct involved an "extreme degree of risk considering the probability and magnitude

of the potential harm to others." Pl. Pet. p. 7. Tex. Civ. Prac. & Rem. Code §41.007 does not

entitle Plaintiff to exemplary damages, as § 41.007 only provides that "[p]rejudgment interest


DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS AND                                        Page 8 of 15
FOR RECOVERY OF COSTS AND ATIORNEY'S FEES


                                                 83
may not be assessed or recovered on an award of exemplary damages." Therefore, taking all

Plaintiffs allegations as true, Plaintiff is not entitled to exemplary damages under § 41.007, Tex.

Civ. Prac. & Rem. Code.

       Moreover, even if the Court allows Plaintiff to correct, what may be a typographical error

in the statute cited, Plaintiffs claim for exemplary damages for Malice fails because Plaintiff

does not allege that Brewer acted with malice, which means "a specific intent by the defendant to

cause substantial injury or harm to the claimant;" rather, Plaintiff alleges that Brewer acted with

an extreme degree of risk, considering the probability and magnitude of the potential harm to

others, which is an element of gross negligence. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917,

921 (Tex. 1998) ("Gross negligence includes ... viewed objectively from the actor's standpoint,

the act or omission must involve an extreme degree of risk, considering the probability and

magnitude of the potential harm to others.") However, Plaintiff does not allege that Brewer was

grossly negligent, and cannot establish that he is entitled to exemplary damages for malice based

on the allegations contained in Plaintiffs Original Petition. Accordingly, Plaintiffs claim for

exemplary damages should be dismissed.

4. Business Disparagement

       To prevail on a business disparagement claim, a plaintiff must establish that (1) the

defendant published false and disparaging information about it, (2) with malice, (3) without

privilege, (4) that resulted in special damages to the plaintiff. Hurlbut v. Gulf At/. Life Ins. Co.,

749 S.W.2d 762, 766 (Tex.1987); Forbes Inc. v. Granada Biosciences, Inc:., 124 S.W.3d 167,

170 (Tex. 2003). Actual malice is not ill will; it is the making of a statement with knowledge that

it is false, or with reckless disregard of whether it is true. Gertz v. Robert Welch, Inc., 418 U.S.

323, 328 (1974). "Reckless disregard" is defined as a high degree of awareness of probable


DEFENDANT KIRK BREWER, M.D. •s MOTION TO DISMISS AND                                        Page 9 of 15
FOR RECOVERY OF COSTS AND ATTORNEY·s FEES


                                                  84
falsity, for proof of which the plaintiff must present "sufficient evidence to permit the conclusion

that the defendant in fact entertained serious doubts as to the truth of his publication." St. Amant

v. Thompson, 390 U.S. 727, 731, (1968). An error in judgment is not enough. See Time, Inc. v.

Pape, 401 U.S. 279, 290, (1971); Carr v. Brasher, 776 S.W.2d 567, 571 (Tex. 1989).

Furthermore, a plaintiff cannot rely on a statement of opinion to support its business

disparagement claim because such statements are constitutionally protected. Carr v. Brasher,

776 S.W.2d 567, 570 (Tex. 1989).

       Plaintiffs pleadings, even if taken as true, do not entitle Plaintiff to the relief sought for

business disparagement. As addressed above, Plaintiff makes no specific allegations that Brewer

published any false, defamatory statement regarding Plaintiffs business. Plaintiffs allegations

that Brewer brought him up on charges of incompetent patient care, and started a whisper

campaign to not refer business to Plaintiff does not support a claim for business disparagement.

A whisper campaign not to refer patients to Plaintiff, taken as true, does not imply that false

statements were made about Plaintiff in the alleged "whisper campaign," and any charges

Brewer brought against Plaintiff were brought as part of a medical peer review process which is

protected under the TCPA, and the privileges and immunities as set forth in the Texas

Occupations Code, §§160.001 et seq., 160.0IO(and especially subsection (c) of that section), and

161.001 et seq., the Texas Health & Safety Code, §161.001 et seq., and 161.033, and the Federal

Health Care Quality Improvement Act, 42 U .S.C., §1110 I et seq. Furthermore, Plaintiff fails to

allege or establish that Brewer's statements caused Plaintiff special damages. Proof of special

damages is an essential part of the plaintiffs' cause of action for business disparagement. Hurlbut

v. Gulf At/. Life Ins. Co., 749 S.W.2d 762, 767 (Tex. 1987). The requirement goes to the cause

of action itself and requires that plaintiff "establish pecuniary loss that has been realized or


DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS AND                                       Page 10 of 15
FOR RECOVERY OF COSTS AND ATTORNEY'S FEES


                                                 85
liquidated as in the case of specific lost sales." W. Keeton, Prosser and Keeton on the Law of

Torts,§ 128 at 971 (5th Ed.1984); Hurlbut v. GulfAtl. Life Ins. Co., 749 S.W.2d 762, 767 (Tex.

1987). Plaintiff generally alleges that Defendants took the action(s) to harm Plaintiff's business

interests; this is insufficient to establish special damages under a claim for business

disparagement. Accordingly, Plaintifrs claim for business disparagement should be dismissed.

       Additionally, Plaintifr s claim for business dispargement must be dismissed because the

Texas Medical Practice Act ("TMPA") affords immunity from civil liability to peer-review

participants when they act "without malice and in the reasonable belief that the action or

recommendation is warranted by the facts known to that person." Tex. 0cc. Code §

160.010(a)(2). Plaintifrs allegations against Brewer concern his actions as a peer-review

participant, and peer-review participants are always presumed to have acted without malice.

Benson v. St. Joseph Reg'l Health Ctr., 575 F.3d 542, 545 (5th Cir. 2009). To overcome the

presumption, a plaintiff bears the burden of proving the contrary by clear and convincing

evidence. Benson v. St. Joseph Reg'l Health Ctr., 575 F.3d 542, 545 (5th Cir. 2009). Plaintiff's

conclusory allegation that Defendants acted with malice falls far short of the clear and

convicning evidence standard required to establish this element and no facts alleged support his

allegation of malice. Accordingly, Brewer should be found immune from Plaintifr s business

disparagement claim, and it should be dismissed.

5. Restraint of Trade

       Initially, Brewer would re-assert its argument that Plaintifr s claims must be dismissed

because the Texas Medical Practice Act ("TMPA") affords immunity from civil liability to peer-

review participants when they act "without malice and in the reasonable belief that the action or

recommendation is warranted by the facts known to that person." Tex. 0cc. Code §


DEFENDANT KIRK BREWER. M.D. 'S MOTION TO DISMISS AND                                     Page 11 of 15
FOR RECOVERY OF COSTS AND ATIORNEY'S FEES


                                                 86
160.0IO(a)(2). Plaintiffs allegations against Brewer concern his actions as a peer-review

participant, and peer-review participants are always presumed to have acted without malice.

Benson v. St. Joseph Reg'/ Health Ctr., 575 F.3d 542, 545 (5th Cir. 2009). To overcome the

presumption, a plaintiff bears the burden of proving the contrary by clear and convincing

evidence. Benson v. St. Joseph Reg'/ Health Ctr., 575 F.3d 542, 545 (5th Cir. 2009). As

discussed above, Plaintiff's Petition fails to allege facts sufficient to entitle him to a finding of

malice against Brewer. Accordingly, Brewer is immune from Plaintiffs Restraint of Trade

claim, and it should be dismissed.

       Alternatively, Plaintiffs bald allegations that Defendants referred patients to a hospital-

owned practice to obtain market dominance in the nephrology practice in Tom Green and

contiguous counties, coupled with Plaintiffs failure to allege that he suffered an antitrust injury

do no entitle Plaintiff to relief under a Texas Antitrust Act.

       The Texas Antitrust Act provides, in relevant part, that "[e]very contract, combination, or

conspiracy in restraint of trade or commerce is unlawful," and that "[i]t is unlawful for any

person to monopolize, attempt to monopolize, or conspire to monopolize any part of trade or

commerce." Tex. Bus. & Com.Code Ann. § 15.0S(a), (b) (Vernon 2002). To establish that a

defendant contracted, combined, or conspired in restraint of trade in violation of the Texas

Antitrust Act, a plaintiff must show that the alleged contract, combination, or conspiracy is

unreasonable and has an adverse effect on competition in the relevant market. See Winston v.

Am. Med. Int'/, 930 S.W.2d 945, 951-52 (Tex.App.-Houston [1st Dist.] 1996, writ denied). The

Texas Antitrust Act does not prohibit all restraints of trade; instead, it prohibits only those that

restrain trade unreasonably. See DeSantis v. Wackenhut Corp., 793 S. W.2d 670, 687 (Tex.1990).




DEFENDANT KIRK BREWER, M.D.'S MOTION TO DISMISS AND                                        Page 12 of 15
FOR RECOVERY OF COSTS AND ATTORNEY'S FEES


                                                 87
       Courts have generally been reluctant to hold that a group of physicians who decide that .

they do not want to refer patients to a particular physician, because they doubt his qualifications,

have committed a per se violation of the Sherman Act. Because actions on the part of hospitals

and physicians, which might resemble group boycotts, may well be mandated by an ethically

grounded concern for patients' well-being ... such behavior, in the medical service industry,

should be analyzed in terms of the rule of reason. Marlin v. Robertson, 307 S.W.3d 418, 428-29

{Tex. App.-San Antonio 2009, no pet.) Pontius v. Children's Hosp., 552 F.Supp. 1352, 1370

(W.D.Pa.1982); see also Jackson v. Radcliffe, 795 F.Supp. 197, 205 (S.D.Tex.1992) (applying

rule of reason to physician's contention that termination of his contract with hospital was illegal

restraint of trade); Oksanen v. Page Memorial Hospital, 945 F.2d 696, 708-09 (4th Cir.1991)

(analyzing denial or revocation of medical staff privileges under rule of reason); Marin v.

Citizens Mem'l Hosp., 700 F.Supp. 354, 360 (S.D.Tex.1988) (applying rule of reason to

physician's claim that hospital for which he worked and its medical staff formed group boycott to

reduce or eliminate his competitive potential).

       Furthermore, a plaintiff cannot demonstrate the unreasonableness of a restraint merely by

showing that it caused him an economic injury. Oksanen, 945 F.2d at 708. For example, the fact

that a hospital's decision caused a disappointed physician to practice medicine elsewhere does

not of itself constitute an antitrust injury. Id. "If the law were otherwise, many a physician's

workplace grievance with a hospital would be elevated to the status of an antitrust action." Id.

"To keep the antitrust laws from becoming so trivialized, the reasonableness of a restraint is

evaluated based on its impact on competition as a whole within the relevant market." Id. The fact

that a competitor's income may have been reduced by someone's conduct, does not mean that

competition was impermissibly restrained in the relevant market. Rea v. Hosp. Corp. ofAm., 892


DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS AND                                      Page 13 of 15
FOR RECOVERY OF COSTS AND ATIORNEY'S FEES


                                                  88
F. Supp. 821, 834 (N.D. Tex. 1993) aff'd in part, rev'd in part sub nom. Johnson v. Hosp. Corp.

of Am., 95 F.3d 383 (5th Cir. 1996). To meet its burden, a plaintiff must prove what market it

contends was restrained and that the defendants played a significant role in the relevant market.

Id. at 709. Absent this market power, any restraint on trade created by the defendants' actions is

unlikely to implicate Texas Antitrust Act section 15.0S(a). See_Marlin v. Robertson, 307 S.W.3d

418, 429 (Tex. App.-San Antonio 2009, no pet.) "There must be evidence of 'demonstrable

economic effect' not just an inference of possible effect." Coca-Cola Co. v. Harmar Bottling

Co., 218 S.W.3d 671,689 {Tex.2006).

       Plaintiffs allegations, even if taken as true, do not entitle him to a relief under the Texas

Antitrust Act, as his allegations do not demonstrate that Brewer' s actions play a significant role

in the nephrology market in Tom Green and contiguous counties or that Plaintiff suffered an

antitrust injury from Brewer's actions. In fact, Plaintiffs allegations demonstrate that Plaintiff

maintains his own medical practice with a dialysis unit capable of serving 24 patients per shift.

(Pl. Pet. p. 2). Any patient who wishes to use Plaintiff is still able to seek out his services. See

Nafrawi v. Hendrick Med. Ctr., 676 F. Supp. 770, 774-75 (N.D. Tex. 1987) (holding that there

was no antitrust violation by a hospital that denied a doctor staff privileges when the doctor

maintained full privileges at a comparable facility, any patient who wishes to use his services

could still seek out his services, and even if he no longer practiced medicine at all, patients in the

relevant market could still obtain services identical to those he provided.) Therefore, Plaintiffs

claim for restraint of trade should be dismissed.

                               IV. Conclusion and Prayer for Relief

       WHEREFORE, premises considered, there being no legal and no factual bases for the

causes of action pleaded against Brewer, this Defendant respectfully prays that its motion be


DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS AND                                        Page 14 of 15
FOR RECOVERY OF COSTS AND ATTORNEY'S FEES


                                                 89
granted, that the causes of action asserted against Brewer be dismissed and for costs and

reasonable and necessary attorney's fees, all as provided under Rule 91a, Tex. R. Civ. Proc. and

Tex. Civ. Prac. & Rem. Code §§ 27.001, et. seq.

       Further, Brewer respectfully prays that (1) this motion be set for hearing not less than 21

days after the date of filing, and (2) that the motion be granted within 45 days after the date of its

filing, all as required by Rule 9la.3, Tex. R. Civ. Proc.



                                               Respectfully submitted,

                                               MCMAHON SUROVIK SUTTLE, P.C.
                                               400 Pine Street, Suite 800
                                               Abilene, Texas 79601-5140
                                               (325) 676-9183 (Phone)
                                               (325) 676-8836 (Fax)


                                               By: Isl Robert B. Wagstaff
                                                      Robert B. Wagstaff
                                                       State Bar No. 20665000
                                                       rwagstatff@mcmahonlawtx.com

                                               ATTORNEYS FOR DEFENDANT
                                               KIRK BREWER, M.D.


                                 CERTIFICATE OF SERVICE

       This hereby certifies that a true and correct copy of the foregoing instrument was
forwarded, via e-service and e-mail, to all counsel of record on the 8th day of December, 2015.



                                                Isl Robert B. Wagstaff
                                               ROBERTB. WAGSTAFF




DEFENDANT KIRK BREWER, M.D.'S MOTION TO DISMISS AND                                         Page 15 of 15
FOR RECOVERY OF COSTS AND ATTORNEY'S FEES


                                                 90
TABN0.4
                                                                                     Flied for Record
                                                                                     1R/i816 -i:44:99 PM
                                                                                     Sheri Woodfin. District Clerk
                                                                                     Tom Green County, Texas



                                    CAUSE NO. B-150,285-C

STEYE F MONTOYA, MD,                             §   IN THE 119TH DISTRICT COURT
WEST TEXAS RENAL CARE, and                       §
WEST TEXAS NEPHROLOGY,                           §
                                                 §
         Plaintiffs,                             §


                                                 §
SAN ANGELO COMMUNITY MEDICAL                     §
CENTER arid KIRK BREWER, M.D.                    §
                                                 §
         Defendants.                             §    TOM GREEN COUNTY, I EXAS


             DEFENDANT KIRK BREWER, M.D.'S AMENDED MOTION TO
          DISMISS AND FOR RECOVERY OF COSTS AND ATTORNEY'S FEES

TO TIIE IIONORABLE COURT:

                  COMES NOW Defendant, Kirk Brewer, M.D., (hereinafter "Brewer") and

respectfully moves the Court to dismiss the following causes of action asserted against Brewer

pursuant to Tex. Civ. Prac. & Rem. Code§§ 27.00I et. seq. on the grounds that Plaintiff's causes

of action violate the Texas Citizens Participation Act, and pursuant to Rule 91 a, Tex. R. Civ.

Proc on tbe grounds that Plaintiff's causes of action have no basis in law or fact as demonstrated

below.
                                 I. Amended Motion Timely Filed

          Seetion 27.663, 'fex. Civ. P,ac. & Rem. Cede and Rule 9Ia.3, TeK. R. Civ. P. r-equii:es a

motion to dismiss be filed within 60 days after the first pleading containing the challenged cause

of action is served on the movant. The first pleading in this case was served upon Defendant

Brewer on October 9, 2015, a first amended pleading was filed November 12, 2015, and

Defendant Brewer originally filed his motion to dismiss on December 8, 201 S, and set it for

 hearing on January 12, 2016. On January 4, 2016, the Plaintiffs filed a Second Amended

 DEFENDANT KJRK BREWER, M.D.'S AMENDED MOTION to DISMISS                                     Pagel of 19
 AND FOR RJ:::COVERY OF COSTS AND ATIORNEY'S FEES


                                             119
Original Petition, with additional ailegations, but no additional claims. Further, Plaintiffs tiled a

cespaose ta the motion ta dismiss on January 4, 2016, as well. Pursuant to TRCP 91a.5, this

amended motion responsive to the latest pleading is timely filed. ·

       Further, in support of this motion, attached hereto as Exhibit "I" is the affidavit of

Defendant Kirk Brewer, M.D. Attached hereto as Exl.ibit ''2" is the affidai·it efRebert 't'lagstaff

in support of attorneys' fees.

                         II. Causes of Action Asserted Against Brewer

       The causes of action alleged in each of the Plaintiffs' Petitions, including the Second

Amended Original Petition are:

        (1)    Tertieus lnterfei=ee~e with Current and Prospective Business/Patient
               Relatiens (pp. 5 ());
        (2)    Tortious Interference with Current and Prospective Business/Patient
               Relations- Exemplary Damages (p. 7);
        (3)    Defamation Per Se (p. 7-10);
        (4)    Malice (p. 10);
        (5)    Business Disparagement (pp. 11);
        (6)    Restramt of Trade ( lexas Free Enterprise and Anutrust Act) (p. t 1-12),
        (7)    Cause of action thrown in with the factual dissertation - civil conspiracy
               and joint and several liability (p.3).

        Despite Plaintiffs attempts to somehow plead around the Defendant's motion to dismiss,

as demonstrated below, none of the causes of action pied have sufficient basis in law or in fact

against Brewer.

                                  m. No Legal Basis fer Claims
A.      The Court should dismiss Plaintifrs claim pursuant to the Texas Citizens
        Participation Act.

        This Court should dismiss Plaintiff's claims pursuant to the Texas Citizens Participation

 Act (''TCPN') because his claims are based on, relate to, or are m response to Defendant's

 exercise of his right to free speech. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b) ("[A]


 DEFENDANT KIRK BREWER, M.0.'S AMENOED MOIION 10 DISMISS                                     Pagel ufl~
 ANO FOR RECOVERY OF COSTS AND ATIORNEY'S FEES


                                              120
court shall dismiss a legal action against the moving party if the moving party shows by a

prepaoderance nftbe evidence that the legal action is based on, relates to. or is in response to the

party's exercise of: (1) the right of free speech ...."). To avoid dismissal, a plaintiff must

establish "by clear and specific evidence a prima facie case for each essential element of [its

claims)." id. at § 27.00S(c). If a plaintiff fails to meet this burden, the court must dismiss the

action and award attorneys' fees to the moving party. Id. at§ 27.009. Plaintiff cannot meet this

demanding burden and dismissal of his claims is therefore warranted.

Plaintiffs' Claims Arise Out ofDefendant's Exercise of His Right to Free Speech

        Plaintiffs claims are premised on Defendant's communications regarding a matter of

pablie eeAeem. PlaiRtiff aetes in his latest pleading on page 3 that "Dr Brewer at all times acted

for (SACMC)." Further, in Defendant Brewer's attached affidavit, he states that "[F]urther, any

discussions I have had concerning Dr. Montoya, regardless of the context, have been within the

hospital, and either directly concemmg patient care andtor associated with the pee1 1eview

process." As such, any claimed statements are squarely within the TCPA. Plaintiffs claims

should therefore be dismissed with prejudice. The TCPA defines "[e]xercise of the right of free

speech [as] communication made io connection with a matter of public concern." Tex. Civ. Prac.

& Rem. Code Ann. at§ 27.001(3). A "'matter of public concern' includes an issue related to: (A)

health or safety; [or] (B) environmental, economic, or community well-being." Id at §

27.0061(1}.

         Specifically, Plaintiff alleges that Defendant: l) engaged in a covert whisper campaign

 and decided not to refer any patients to Plaintiff and 2) brought charges against Plaintiff relating

 to incompetent patient care. Importantly, Plaintiff does not 1dent1fy any actual statements m

 which Defendant ever disparaged Plaintiff, or suggested that any entity should refrain from doing


 Dt:F.ENDANT KIRK BREWER. M.D. 1S AMENDED MO I ION IO DISMISS                               Pagc3 of19
 AND FOR RECOVERY OF COSTS AND ATTORNEY"S FEES


                                                  121
business with Plaintiff. In fact, one action alleged to have hanned Plaintiff - the charges brought

against Plaintiff relating to incompetent patient care is statutorily protected conduct pursuant to

the medical committee privileges and immunities provided by the Texas Occupations Code,

§§160.001 et seq., 160.010 (and especially subsection (c) of that section), and 161.001 et seq.,

the Texas Health & Safety Code, §161.881 et seq. and 161.033, and the Federal Heeltk Care

Quality Improvement Act. 42 U.SC., §11101 et seq. The other harm is centered on the

defamation per se claim which is discussed in more detail below.

       Furthermore, these charges relating to Plaintiffs patient care constitute free speech under

the TCPA because it fits within TCPA's definition of "communication[s] made in connection

with a matter ef public cgacefR," including· "health or safety" (Plaintiff is a physician);

"community well-being'' (Plaintiff practices medicine in the community in which Defendants

work and live); or "service in the marketplace" (Plaintiff provides medical services to the

community m which Defendant works and hves). See Tex. Civ. Prac. & Rem. Code Ann. at §

27.001(7); Lippincott v. Whisenhunt, 462 S.W.3d 507, 509-10 (Tex.. 2015) (holding that e-mails

sent by administrators at medical facility containing disparaging comments about certified

registered nurse anesthetist were caromuoications made in connection with a matter of public

concern and were protected by the Texas Citizens Participation Act (TCPA); e-mails related to

whether nurse anesthetist properly provided medical services to patients, and included

allegations that nurse anesthetist failed to provide adeqt1ate ee"1erage fer pediatrie Gases,

 administered a different narcotic than was ordered, falsified records, and violated facility's sterile

 protocol policy); see also Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd, 416

 S.W.3d 71, 81 (Tex. App.--Houston [1st Dist.] 2013, no. pet. h.) (holding that arucies relating to

 the plaintiff's obligation to meet the licensing requirements and standards for operating an


 DEFENDANT KIRK BREWER. M.D.'S AMENDED MUI ION lO DISMISS                                     Page4 of 19
 AND FOR RECOVERY OF COSTS AND ATIORNEY'S Ff.ES


                                              122
assisted living facility were made in connection with a matter of public concern and related to the

exercise of free speech}

       Additionally, Plaintiff's pleadings fail to present a prima facie case on each of Plaintiff's

causes of action, because Plaintiff's pleadings are not clear and specific. "Pleadings that might

suffice in a case that does not implicate the TCPA n1a, not be suffieient te satisfy the TCPA's

'clear and specific evidence' requirement." In re Lipsky, 460 S.W.3d 579,590 (Tex. 2015) "[A]

plaintiff must provide enough detail to show the factual basis for its claim," including how the

"defendants damaged the plaintiff." Id. at 591. ''[G]eneral allegations that merely recite the

elements of a cause of action ... wiIJ not suffice." Id. at 590. Additionally, "[b]are, baseless

opiflions ao not GFeate faGt questicms, and neither are they a sufficient substih1te for the clear and

specific evidence required to establish a prima facie case under the TCPA." Id. at 592. Without

more, allegations stating that a plaintiff suffered ''direct economic losses and 'lost profits,"' are

only conclusory and do not constitute evidence.       Ia.; see Coastal Transp.   Co. v. Crown Cent.

Petroleum, 136 S.W.3d 227, 232 (Tex. 2004); Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122

(Tex. 1996) (per curiam); Wholesale TV & Radio Adver., LLC v. Better Bus. Bureau of Metro.

Dallas, bzc, 1'10 OS 1J-01332-CY, 2013 WL 3024692. at *4 (Tex. App. Dallas Jun. 14, 2013,

no pet.) (mem. op.) (finding conclusory statements insufficient evidence of essential element in

TCPA case); Zanfardino v. Jeffus, 117 S.W.3d 495, 497-98 (Tex. App.-Texarkana 2003, no



        In truth, Plaintiff's entire petition is based on, relates to, or is in response to Defendant's

 exercise of his right to speak freely on issues relating to public health and safety. Therefore,

 Plaintiff's causes of action should be dismissed pursuant to the 'l'CPA.




 DEFENDANT kJRK BREWER; M.0. 'S AMBNDED MO IION IO DISMl&i                                    PugeS of19
 AND FOR RECOVERY OF cos·rs AND ATIORNEV'S FEES


                                               123
B.     Plaintiff's Claims Have No Basis in Law and the Factual pleadings are Conclusory
       in Nature
       Rule 91a, Tex. R. Civ. Proc., provides:

                       "(A) party may move to dismiss a cause of action on the
               grounds that it has no basis in law or in fact. A cause of action
               has no basis in law if the allegations, taken as true, tegether
               with the inferences reasu11ably d1·awn f1 om them, do not entitle
               the claimant to the relief sought."


1. Tortious Interference with Existing and Prospective Patients and Exemplary Damages

       The elements of tortious interference with an existing business relationship "are (1) the

existence of a contract subject to interference, (2) the act of interference was willful and

ifttefltienal, (3) slieh intentional att was a proximate cause of plaintitFs damages, and (4) actual

damage or loss occurred." Victoria Bank & Trust Co. v. Brady, 811 S. W.2d 931, 939 (Tex.1991 );

see Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 926 (Tex.1993).

        "To estabhsh ... tort1ous interference wnh prospective business relationships, a plaintiff

must show that (l) there was a reasonable probability that the parties would have entered into a

business relationship; (2) the defendant committed an independently tortious or unlawful act that

pnweRted the ~elationship ft:om occurring; (3) the defendant either acted with a conscious desire

to prevent the relationship from occurring or knew the interference was certain or substantially

certain to occur as a result of the conduct; and (4) the plaintiff suffered actual harm or damages

as a result of the defendant's interference." Plotk~n v. Joekel, 304 S.W.3d 455, 487 (fex. A.pp.

Houston [1st Dist.] 2009, pet. denied) (quoting Richardson-Eagle, Inc. v. William M. Mercer,

Inc., 213 S.W.3d 469, 475 (Tex. App.-Houston [1st Dist.] 2006, pet. denied)); see Wal-Mart

Stores, Inc. v. Sturges, 52 S.W.3d 711, 713 (Tex. 2001). Independently tort1ous means "conduct

 that would violate some other recognized tort duty." Sturges, 52 S.W.3d at 713.


 DEFENDANT KIRK BREWER, M.D. ·s AMENDED MOTION TO bISMlsS                                   Page6oft,
 AND FOR RECOVERY OF COSTS AND ATTORNEY'S FEES


                                              124
       All of Plaintiff's allegations regarding his claim for tortious interference with existing

business and prospective patients, if taken as true, do not entitle Plaintiff to the relief he seeks

because as to Brewer, Plaintiff fails to allege, and there are no facts which support: 1) the

existence of a contract which is subject to interference; 2) that there was a reasonable probability

tliat tlie Plamuff and these prospective patients would have entet ed into a doctor-patient

relationship; or 3) that Brewer committed an independently tortious or unlawful act that

prevented the doctor-patient relationship from occurring. Plaintiff alleges generally that

Defendants interfered with Plaintiff's relationships with patients and referring physicians;

however, Plaintiff alleges no specific tortious or unlawful conduct against Brewer which, if true,

eonstittttes tertiat1s interfereflee with Plaintiff's ability to enter into a relationship with patients

and referring physicians, nor does Plaintiff allege that he is under a current contract with any

patients or physicians with which Brewer could interfere, nor has Plaintiff alleged any facts

which support a finding that there was a reasonable probabll1ty tliat Plamuff WoUld have entered

into said relationships, but for Brewer's conduct. Because Plaintiff cannot establish elements

essential to his claim for tortious interference with existing and prospective patient relations,

Plaintiffs Glaims fQr the same should be dismissed; 6•ctber, without proof oftortious interference,

Plaintifrs claim for exemplary damages must be denied as well.

        Alternatively, Plaintiff's claim should be dismissed because a hospital, through its agents,

 has a duty to engage in peer review of its physicians._Puie/ v. Midla1td1'Jem'l Twsp. & Med. Ctr.,

 298 F.3d 333, 347 (5th Cir. 2002). Thus, any contractual interference caused by Brewer/s

 exercise of this right with respect to Plaintiff was justified. See Friendswood Dev. Co. v.

 McDade & Co., 926 S.W.2d 280, 282 (Tex.1996) ("A party is justified in interfermg with

 another's contract if it exercises {I) its own legal rights or (2) a good faith claim to a colorable


 D~ENDANT KIRK BREWBR. M.D. •s AMENDBD MOTION TO DISMISS                                        rage, ot 19
 AND FOR RECOVERY OF COSTS AND ATTORNEY'S FEES


                                               125
legal right, even though that claim ultimately proves to be mistaken."); Patel v. Midland Mem'l

Hosp & Med Ctr. 298 F,3d 333, 347 (5th Cir. 2002).

2. Defamation Per Se

       Defamation is a false statement about a plaintiff published to a third person without legal

excuse which damages the plaintiffs 1cputation. Doe"· Mobile Video Tapes, 1-nc., 43 S.W.3d 48,

48 (Tex. App.-Corpus Christi 2001, no pet.); Moore v. Waldrop, 166 S.W.3d 380, 384 (Tex.

App.-Waco 2005, no pet.) To be considered defamation per se, the statement must (1) impute

the commission of a crime; (2) impute contraction of a loathsome disease; (3) cause injury to a

person's office, business, profession, or calling; or (4) impute sexual misconduct. Goodman, 50

S,WJd at 140, 'Whether woJ:ds are capable of tbe defurnatocy meaning the plaintiff attributes to

them is a question of law for the court. Musser v. Smith Protective Serv., Inc., 723 S.W.2d 653,

654-55 (Tex.1987); Moore v. Waldrop, 166 S.W.3d 380,384 (Tex. App.-Waco 2005, no pet.).

       If parhcular language alleged to be defamatory may, or may not, be so, according to otbe1

facts or circumstances, then an innuendo is required in order to tender as an issue the fact that the

words conveyed to hearers the defamatory meaning. Montgomery Ward & Co. v. Peaster, 178

S w 2d 3Q2 1 305 (Tex Civ App            Eastland 1944, no writ). Consequently. innuendo should

never be considered when interpreting defamation per se. The very definition of "per se," "in

and of itself," precludes the use of innuendo. Moore v. Waldrop, 166 S.W.3d 380, 386 (Tex.

App. Waco 2.66S, no pet.) If the statement; taken b)' it5elf and as a whale, is defamatory, it will

require no extrinsic evidence to clarify its meaning; it will stand alone. Burnaman v. J.C. Penney

Co., 181 F.Supp. 633, 636-37 (S.D.Tex.1960); Moore v. Waldrop, 166 S.W.3d 380, 386 (Tex.

App.-Waco 2005, no pet.).




DEFENDANT KIRK BREWER, M.D. 'S AMENDED MO I ION IO DISMISS                                  .Page8ofl!I
AND FOR RECOVERY OF COSTS ANO A1TORNEY'S FEES


                                               126
       Plaintiffs Second Amended Original Petition now alleges that the so-called defamatory

statement Brewer made against Plaintiff was actually not a statement at all concerning Plaintiff,

but innuendo, an order calling for a change in attending physician to Defendant Brewer followed

by the words "Consult Dr. Stevenson,,, Allegedly, by publishing this is one patient's medical

record, this was tantamount to a defarnato1y pet se statement against the Plaintiff. Clearl), this is

nothing but innuendo and is certainly not a particular statement against the Plaintiff. Again,

when innuendo is required to determine whether a particular statement is in fact defamatory, then

the Plaintiff is prevented from prevailing on his claim for defamation per se.             Plaintiff's

defamation per se claim should be dismissed accordingly.

3. Maliee

        Plaintiff claims that he is entitled to exemplary damages for his claims for tortious

interference and defamation per se under Tex. Civ. Prac. & Rem. Code § 41.007 because

Brewer's conduct mvolved an "extreme degree of risk cons1dermg the probabtltty and magnitude

of the potential harm to others." Pl. Pet. p. 7. Tex. Civ. Prac. & Rem. Code §41.007 does not

entitle Plaintiff to exemplary damages, as § 41.007 only provides that "(p ]rejudgment interest

may not be assessed or recovered oo ao award of exemplary damages," Therefore, taking all

Plaintiffs allegations as true, Plaintiff is not entitled to exemplary damages under§ 41.007, Tex.

 Civ. Prac. & Rem. Code.

        Moreover, even if the Court allows Plaintiff to correct, what may be a typograf)hieal error

 in the statute cited, Plaintifrs claim for exemplary damages for Malice fails because Plaintiff

 does not allege that Brewer acted with malice, which means "a specific intent by the defendant to

 cause substantial injury or harm to the claimant;" rather, Plaintiff alleges that Brewer acted with

 an extreme degree of risk, considering the probability and magnitude of the potential harm to


 DEFENDANT KIRK BREWER, M.D. ·s AMENDED MOTION to DISMISS                                    Page9ot 19
 AND FOR RECOVERY OF COSTS AND AITORNEY'S FEES


                                              127
others, which is an element of gross negligence. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917,

921 (Tex 1998) (''Gross negligence includes ... viewed objectively from the actor's standpoint,

the act or omission must involve an extreme degree of risk, considering the probability and

magnitude of the potential harm to others.'') However, Plaintiff does not allege that Brewer was

grossly negligent; and cmmot establish that lie is entitled to exemplary damages for malice based

on the allegations contained in Plaintiff's Original Petition. Accordingly, Plaintiffs claim for

exemplary damages should be dismissed.

4. Business Disparagement

       To prevail on a business disparagement claim, a plaintiff must establish that (1) the

defendant published false and disparaging infum:aation about it, (2) with malice, (3) wjthnut

privilege, (4) that resulted in special damages to the plaintiff. Hurlbut v. Gulf Atl. Life Ins. Co .•

749 S.W.2d 762, 766 (Tex.1987); Forbes Inc. v. Granada Biosciences. Inc'"' 124 S.W.3d 167,

170 ( I ex. 2003). Actual mahce 1s not ul will; tt 1s the making of a        statement with specific
intent/knowledge that it is false, or with reckless disregard of whether it is true. Gertz v. Robert

Welch, Inc., 418 U.S. 323, 328 (1974). "Reckless disregard" is defined as a high degree of

awar:eness of pi:obable falsicy, for proof of wbicb the plaintiff must present "sufficient evidence

to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his

publication." SI. Amant v. Thompson, 390 U.S. 727, 731, (1968). An error in judgment is not

enough. See   Time, inc. v. Pape,   461 U.S. 219, 2~6, (1971), Can v. B1ashe,, 776 S.W.2d 567,

571 (Tex. 1989). Furthermore, a plaintiff cannot rely on a statement of opinion to support its

business disparagement claim because such statements are constitutionally protected. Carr v.

Brasher, 116 S.W.2d 567,570 (Tex. 1989).




 DEFENDANT KIRK BREWER, M.D. 'S AMENDED MOTION TO DISMISS                                    Page IUot 19
 AND }.OR RECOVERY OF COSTS AND ATTORNEY'S FEES


                                               128
       Plaintiff's pleadings, even if taken as true, do not entitle Plaintiff to the relief sought for

business disparagement As addressed above, Plaintiff makes no specific allegations that Brewer

published any false, defamatory statement regarding Plaintifrs business. Plaintiff's conclusory

allegations that Brewer made charges of incompetent patient care, evidently by innuendo, and

started a whisper campaign without any supprn ting facts to not 1efe1 business to Plaintiff does

not support a claim for business disparagement. A whisper campaign not to refer patients to

Plaintiff, taken as true, does not imply that false statements were made about Plaintiff in the

alleged "whisper campaign," and to the extent any charges were brought by Brewer against

Plaintiff were brought as part of a medical peer review process which is protected under the

TCPA, and the privileges and immunities as set furth in the Texas Occupations Code, §§160 001

et seq., 160.0lO(and especially subsection (c) of that section), and 161.001 et seq., the Texas

Health & Safety Code, §161.001 el seq., and 161.033, and the Federal Health Care Quality

Improvement Act, 42 0 .S.C., §1110 l et seq. Furthermore, Plamtlff tails to allege or establish

that Brewer's statements caused Plaintiff special damages. Proof of special damages is an

essential part of the plaintiffs' cause of action for business disparagement. Hurlbut v. Gulf At/.

Life !'118. Co., 149 S.W.2d 762, 767 (Tex 1987) The cequicement goes to the cause of action

itself and requires that plaintiff "establish pecuniary loss that has been realized or liquidated as in

the case of specific lost sales." W. Keeton, Prosser and Keeton on the Law of Torts,§ 128 at 971

(Stli Ed.1984); lturtbut v. GutfAII. Life ins. Co., 14~ 8.W.2d '7'62, 161 (Tex. 1987). While

Plaintiff generally alleges that Defendants took the action(s) to harm Plaintiff's business interests

and the alleged Defamation per se caused between $1,000,000.00 and $6,500,000.00 in damages;

this is insufficient to establish special damages under a claim for business disparagement as such

a claim is still wholly conclusory, not supported by any facts as to the number of patients,


 DEFENDANT KIRK BREWER, M.D. 'S AMENDED MOTION TO DISMISS                                    Page II of (9
 AND FOR RECOVERY OF COSTS AND ATIORNEY'S FEES


                                               129
estimated or otherwise, and the amount lost per patient. Plaintiff claims this goes back to 2007

or 2003, which would mean, even iftme, most oftbese claim wnnld be barred by limjta,tinns and

improper anyway. Regardless, Plaintiff's claim for business disparagement should be dismissed.

       Additionally, Plaintiff's claim for business disparagement must be dismissed because the

Texas Medical Practice Act ("TMPA") affords immunity from civil liability to peer-review

participants when they act "without malice and in the reasonable belief that the action or

recommendation is warranted by the facts known to that person." Tex. 0cc. Code §

160.010(a)(2). PlaintiWs allegations against Brewer concern his actions as a peer-review

participant, and peer-review participants are always presumed to have acted without malice.

Benson P. St. .laseph Reg'/ Healll1 Cir., S7S F.3d 542, 545 (5th Cir. 2009). Te ev@Kome the

presumption, a plaintiff bears the burden of proving the contrary by clear and convincing

evidence. Benson v. St. Joseph Reg'/ Health Ctr., 515 F.3d 542, 545 (5th Cir. 2009). Plaintiffs

conclusory allegation that Defendants acted with mahce falls far short of the clear and

convincing evidence standard required to establish this element and no facts alleged support his

allegation of malice. Accordingly, Brewer should be found immune from Plaintiff's business

disparagement elaim, and it should be dismissed.

5. Restraint of Trade

        Initially, Brewer would re-assert its argument that Plaintiff's claims must be dismissed

 because the I exas Medical Practice Act ("TMPA") affords tmmunlty from civil liability to peer-

 review participants when they act "without malice and in the reasonable belief that the action or

 recommendation is warranted by the facts known to that person." Tex. 0cc. Code §

 l60.010(a)(2). Plaintiffs allegations against Brewer concern his actions as a peer-review

 participant, and peer-review participants are always presumed to have acted without malice.


 DEPENDANT KIRK BREWER. M.O.'S AMENDED MOTION TO DISMISS                                 Page 12 of 19
 AND FOR RECOVERY OF COSTS AND A1TORNEY'S FEES


                                              130
Benson v. St. Joseph Reg'/ Health Ctr., 515 F.3d 542, 545 (5th Cir. 2009). To overcome the

presumption, a plaintiff hears the burden of proving the contrar_y by clear and convincing
evidence. Benson v. St. Joseph Reg'/ Health Ctr., 515 F.3d 542, 545 (5th Cir. 2009). As

discussed above, Plaintiff's Petition fails to allege facts sufficient to entitle him to a fmding of

malice against B1twe1, much less evidence of the elem and convincing btuden. The Plaintiff has

attached his own affidavit in response to the Defendant's Motion to Dismiss. As is noted below,

the affidavit is conclusory in nature and legally insufficient to defeat this motion. Accordingly,

Brewer is immune from Plaintifrs Restraint of Trade claim, and it should be dismissed.

       Further, Plaintifrs conclusory allegations that Defendants referred patients to a hospital-

0v.<n0d practiGe   t8   ebtaiA market ,fominance ia the aephrology practice in Tam Green and

contiguous counties, coupled with Plaintifrs failure to allege that he suffered an antitrust injury

do not entitle Plaintiff to relief under a Texas Antitrust Act.

       The 'I exas Antitrust Act provides, m relevant part, that "[e]very contract, combmauon, or

conspiracy in restraint of trade or commerce is unlawful,'' and that "[i]t is unlawful for any

person to monopolize, attempt to monopolize, or conspire to monopolize any part of trade or

commerce" Tex Bus & Com Code Aoo § J5 QS(a), (b) (Yemao 2002) Tn establish that a

defendant contracted, combined, or conspired in restraint of trade in violation of the Texas

Antitrust Act, a plaintiff must show that the alleged contract, combination, or conspiracy is

unreasonable and has an adverse effect on competition in the 1elevant maikct. See Whi;sto,, v.

Am. Med. Int'/, 930 S.W.2d 94S, 951-52 (Tex. App.-Houston [1st Dist.] 1996, writ denied). The

Texas Antitrust Act does not prohibit all restraints of trade; instead, it prohibits only those that

restrain trade unreasonably. See DeSantis v. Wackenhut Corp., 793 S.W.2d 670,687 (Tex.1990).




DEFENDANT KJRK BR£WER, M.D. 'S AMENDED MOTION TO DISMISS                                   Page 13 of 19
AND FOR RP.COVERY OF COSTS AND ATTORNEY'S FEES


                                               131
       Courts have generally been reluctant to hold that a group of physicians who decide that

they do not want to refer patients to a particular physician, because they doubt his qualifications,

have committed a violation of the Shennan Act (the Federal equivalent of the Texas Act).

Because actions on the part of hospitals and physicians, which might resemble group boycotts,

may well be mandated by an ethically grot2nded eoneem for patients' well being ... stteh

behavior, in the medical service industry, should be analyzed in terms of the rule of reason.

Marlin v. Robertson, 307 S.W.3d 418, 428-29 (Tex. App.-San Antonio 2009, no pet.) Pontius

v. Children'.'l Hosp., 552 F.Supp. 1352, 1370 (W.D.Pa.1982); see also Jackson v. Radcliffe, 795

F.Supp. 197, 205 (S.D.Tex.1992) (applying rule of reason to physician's contention that

te~mination gf his contract with hospital was iUegal restraint of trade); Qlrsanen v Page

Memorial Hospital, 945 F.2d 696, 708-09 (4th Cir.1991) (analyzing denial or revocation of

medical staff privileges under rule of reason); Marin v. Citizens Mem'I Hosp., 700 F.Supp. 354,

360 (S.D. I ex.1988) (applymg rule of reason to physician's claim that hospital fo1 which he

worked and its medical staff formed group boycott to reduce or eliminate his competitive

potential).

        Eurtbecmare, a plaintiff cannot demonstrate the unreasonableness of a restraint merely by

showing that it caused him an economic injury. Oksanen, 945 F.2d at 708. For example, the fact

that a hospital's decision caused a disappointed physician to practice medicine elsewhere does

not of itself constitute an antitrust injttry. ld. "If the law '.-Vere otherwise, many a physieian's

workplace grievance with a hospital would be elevated to the status of an antitrust action." Id

"To keep the antitrust laws from becoming so trivialized, the reasonableness of a restraint is

evaluated based on its impact on competition as a whole within the relevant market." Jct. I he fact

that a competitor's income may have been reduced by someone's conduct, does not mean that


DF.FENDANT KIRK .BkEwER, M.D. S AMF.NDED MUIIUN IO DISMISS                                 Page 14uf1'
AND FOR RECOVERY OF COSTS AND ATTORNEY'S Fl:ES


                                                 132
competition was impermissibly restrained in the relevant market. Rea v. Hosp. Corp. ofAm., 892

E Supp 821, 834 (N,D. Tex, 1993) qff'd inparl. rev'd in part sub nom. Johnson v. Hosp. Corp.

of Am., 95 F.3d 383 (5th Cir. 1996). To meet its burden, a plaintiff must prove what market it

contends was restrained and how the defendants played a significant role in the relevant market.

ld. at 169. Absent this ma,ket powe1, any restraint on trade ereatetl by the defeec:iaAts' aGtions is

unlikely to implicate Texas Antitrust Act section 15.0S(a). See_Marlin v. Robertson, 301 S.W.3d

418, 429 (Tex. App.-San Antonio 2009, no pet.) "There must be evidence of 'demonstrable

economic effect' not just an inference of possible effect." Coca-Cola Co. v. Harmar Bott/mg

Co. 218 S.W.3d 671,689 (fex.2006).
   1




        :Plaintitrs allegatioos, even if taken as true, do oot entitle him to a relief under the Texas

Antitrust Act, as his conclusory allegations without factual support do not demonstrate that

Brewer' s actions played a significant role in the affectation of the nephrology market in Tom

Green and contiguous counties or that Plaintiff' suffered an antitrust injmy from Bi ewe, 's

actions. In fact, Plaintiff's allegations demonstrate that Plaintiff maintains his own medical

practice with a dialysis unit capable of serving 24 patients per shift. (Pl. Sec. Amd. Orig. Pet. p.

2) Any patient wbo wishes to use Plaintiff is still able to seek out his services. See Nafrawi v.

Hendrick Med Ctr., 676 F. Supp. 770, 774-75 (N.D. Tex. 1987) (holding that there was no

antitrust violation by a hospital that denied a doctor staff privileges when the doctor maintained

 full privileges at a compa1able facility, an, patiet1t v1he wishes te use his ser'lisos Gould still seek

 out his services, and even if he no longer practiced medicine at all, patients in the relevant

 market could still obtain services identical to those he provided.) Therefore, Plaintiff's claim for

 restraint of trade should be dismissed.




 DEFENDANT KIRK BREWER, M.0. 1$ AMF.NDED MO IION 10 DISMISS                                    Page l5of19
 AND FOR RECOVERY OF COSTS AND ATIORNEY'S FEES


                                                133
6. Civil Conspiracy

       Toe Plaintiff has alleged, again only with conclusory statements. that the Defendants are

jointly and severally liable for the Plaintiff's damages as their actions were a civil conspiracy.

Again, these claims are without legal or factual basis. Legally, an entity cannot conspire with

itself. Fojtik v Fitsl Na, 'I Bunk uf BeeviUe, 152 S. W.2d 669 (Tex. App. - Corpus Christi 1988,

writ denied) and Heafner & Assoc. v. Koecher, No. 01-91-01075-CV, 1994 WL 389030, (Tex.

App. - Houston[l st] July 28, 1994, writ denied) (unpublished). In Fojtik, the court held that "a

corporation cannot conspire with itself, no matter how many of its agents may participate in the

corporate action." Id. at 673. The Koecher court, citing Fojtik, supra, stated that ~'[W]here all

the peeple in1-·olvcd in an alleged conspiracy w:e employees of the corporation aod acti og in tbat

capacity and within the scope of their authority, as a matter of law, there is no conspiracy,

because a corporation cannot conspire with itself." Id. at *6. See also Tex-Ohio Gas, Inc. v.

Mecom, 28 S.W.3d 129, 138 (lex. App.- Iexarkana 2000, no pet.) (An entity cannot conspire

with itself).

        Here, the only allegation is that the entity Defendant, San Angelo Community Medical

Center=, ~gnspii:ed with its Chief of Sta~ Defendant Brewer, to carry out improper and illegal

acts. They do not allege that Defendant Brewer was acting in any other capacity and even if not

Chief-of Staff, he was still a staff physician at all times relevant to the Plaintiff's claims.

Notwlthstanding the wholly conclusory allegations devoid of factual basis, as a matter ef law

there can be no conspiracy. Such claims should be in all things dismissed.

                         IV. Objections to Affidavit of Plaintiff Montoya

        Attached to the Plaintiff's response to the motion to dismiss is the Plaintitrs atlldav1t.

 The Defendant objects to the affidavit both generally and specifically.


 DEFENDANT KIRK BREWER, M.0.'S AMENDED MOTION to DISMISS                                  Page 16 0119
 AND FOR RECOVERY OF COSTS AND A'ITORNEY'S FEES


                                              134
General Objection - The Defendant generally objects to the affidavit of Dr. Montoya as it is

wbolJy concJusary botb legally and factually, clearly not based on personal knowledge in a

number of instances, assumes a number of facts beyond his personal knowledge and is simply a

sworn repetition of the allegations in the pleadings. See Brookshire Ka'/y Drainage Dist. v. Lily

Gardent, LLC, 333 S.W.3d 361, 368 (Tex. App. Houston [1st Dist.] 2018, pet. denied), {An

affidavit that is nothing more than a sworn repetition of the allegations in the pleadings is

conclusory and has no probative force).           HAffidavits consisting only of conclusions are

insufficient to raise an issue of fact." Brownlee v. Brownlee, 665 S.W.2d 11 l, 112 (Tex. 1984).

To avoid being conclusory, statements need factual specificity such as time, place, and the exact

aatuFe efthe alleg0d faGts. Id-.

Specific Objections - The Defendant specifically objects as follows:

        Paragraph No. I - The Defendant objects as it improperly sets out conclusory legal

opm1ons concemmg what the case 1s not about and about fiduciary duties owed.

        Paragraph No. 3 - The Defendant objects to Paragraph 3 in its entirety as Dr. Montoya

signed the affidavit on January 4, 2016, yet sent a letter on December 10, 2015, to Defendant

Brewea:, which is attached beceta as Exhibit "A" tn the Brewer affidavit which controverts this

paragraph and is therefore, unreliable.
        Paragraph No. 5 -The Defendant objects as it includes conclusory statements as to what

Defendant Brewer did or did not do and contains further concll1sor~ statements.

        Paragraph No. 6 - The Defendant objects as wholly conclusory, both factually and as to

the legal effect of the supposed change of consult. The Plaintiff's claims as to what Defendant

 Brewer was aware of or knew, is speculative and conclusory and self-serving. The claim of a




 DEFENDANT KIRK BREWER, M.D. 'S AMENDED M0110N l O DISMISS                               Page 11 Oi19
 AND FOR RECOVERY OF COSTS AND AITORNEY'S FEES


                                                135
whisper campaign is vague and indefinite and unclear ofjust what is meant, besides being devoid

of:fuct and simply caoch,socy

        Paragraph No. 8 - Defendant objects as this is conclusory without any factual basis.

        Paragraph No. 9 - Defendant objects as this is conclusory and self-serving.

        Paragraph No. 10 - The Defendant objects as wholly concluso1y, both factually and as to

the legal effect of the supposed change of consult. The Plaintiff's claims as to what Defendant

Brewer was aware of or knew, is speculative and conclusory and self-serving.

        Paragraph No. 11 -The Defendant objects as wholly conclusory, both factually and as to

the legal effect of what Defendant Brewer must or must not do and that somehow it was Dr.

Brewer ·Nile . . .,as legally responsiale fur aay loss of patieRt i=eterral.

        Paragraph No. 12-The Defendant objects as hearsay without exception under TRE 803.

Simply because it is in a vague affidavit fonn does not excuse it from hearsay.

        Paragraph No. 13 - The Defendant obJects as hearsay without exception.

        Paragraph No. 14 - The Defendant objects as wholly conclusory, both factually and as to

the legal rights of a patient.

        Paragraph last,   RQ   number The Defendant objects as wholly coocJusary, both factually

and as to the legal effect of alleged supervision and control of Dr. Brewer and the defamatory

legal effect of their alleged actions.

                                  V. Concluston and Prayer for Relief

        WHEREFORE, premises considered, there being no legal and no factual bases for the

causes of action pleaded against Brewer, this Defendant respectfully prays that his amended

motion be granted, that all the causes of action asserted against Brewer be dismissed and for

costs and reasonable and necessary attorney's fees, all as provided under Rule 91a, Tex. R. Civ.


DEFENDANT KIRK. BREWER, M.D. 'S AMENDED MOTION TO DISMISS                                 rage 18 of 19
AND FOR RECOVERY OF COSTS AND AITORNBY'S FEES


                                                  136
Proc. and Tex. Civ. Prac. & Rem. Code§§ 27.001, et. seq. Alternatively, Defendant requests that

the court dismiss such causes of action that the court 6ods proper and award such fees aod casts

as appropriate for each cause of action dismissed. Attached hereto as Exhibit "2" is the affidavit

ofRobert Wagstaff on the attorneys' fees issue.

       Further, Brewer respectftllly prays that the motion be granted within 4j days after the

date ofthe filing of his original motion to dismiss, as required by Rule 91a.3, Tex. R. Civ. Proc.



                                                   Respectfully submitted,

                                                   MCMAHON SUROVIK SUTILE, P.C.
                                                   400 Pine Street, Suite 800
                                                   Aeilene, Texas 7960 I 514 0
                                                   (325) 676 9183 (Phooe)
                                                   {325) 676-8836 (Fax)


                                                   By: /s/ Robert B. Wagstaff
                                                          Robert B. Wagstaff
                                                          State Bar No. 20665000
                                                          rwagstatff@mcmahonlawtx.com

                                                   AITORNEYS FOR DEFENDANT
                                                   KIRK BREWER, MD


                                  CERTIFICATE OF SERVICE

       This hereby certifies that a true and correct copy of the foregoing instrument was
forwarded, via e-servlce and e-mail, to all counsel of 1eco1d on the '7th day offam1acy, 2816.



                                                    /s/ Robert B. Wagstaff
                                                   ROBERTB. WAGSTAFF




DEFENDANT KIRK DREWER, M.0. 'S AMENDED MOTION TO DISMISS                                   Page 1hf19
AND FOR RECOVERY OP COSTS AND ATTORNP.v·s FE.I!S


                                                   137
                                  CAUSE NO. B-150,285-C

STEVE E MONTOYA, M D,                       §       IN THE 119TH DISTRICT COURT
WEST TEXAS RENAL CARE, and                  §
WEST TEXAS NEPHROLOGY,                      §
                                            §
       Plaintiffs.                          §


                                            §
SAN ANGELO COMMUNITY MEDICAL §
CENTER and KIRK BREWERJI M.D. §
                                             §
       Defendants.                           §      TOM GREEN COUNTY, TEXAS


                          AFFIDAVIT OF KIRK BREWER, M.D.


STATE OF TEXAS                       §

COUNTY OF TOM GREEN                  §

        BEFORE ME, the undersigned authority, personally appeared Kirk Brewer, M.D., who,
after being duly sworn upon bls oath stated as follows:

       "My name is Kirk Brewer, M.D. I am over the age of eighteen (18) years, have never
been convicted of a crime, and I am otherwise qualified to make this affidavit. I am a Defendant
ii:a the above-styled cause and as such, I bave personal knowledge of the following and it is true
and correct.
       Since 2004, I have been on staff as a physician with San Angelo Community Medical
Center. I have served as Chief of Staff from January of 2013 to December of 2014. I am
employed by Community Medical Associates aud have been since 2804. I h~e re\liewed
PJaintiffs' Second Amended Original Petition and the Plaintifrs Response to the Motion to
Dismiss, along with the attached Affidavit of Dr. Montoya.
       While it is unclear what is meant by a so-called "whisper campaign," such claims are
simply false. Further. any discussions I have had concerning Dr. Montoya, regardless of the
context, have been within the hospital, and either directly concerning patient care and/or
associated with the peer review process. While I was Chief of Staff, generally Dr. Hardwicke
would have been the doctor overseeing direct peer review issues, if any, of Dr. Montoya.



                                         E)ql$fjlT 1
Dr. Brewer Afndavlt- Page 2 - January 7, 2016


        Under the hospital by-laws, an emergency room physician is not required to call the on-
call physician, nor ~s there a rotating share of referrals as claimed by Dr, Montoya. There is
     . .~ _1 otati~tg ..list of doctors who are required to be available for eme1 geney consult. There
sin~ply        ~




has· certainly been no cov~rt or overt attempt to reduce or even eliminate referrals to Dr.
Montoya.
        Fin·any, attached hereto as Exhibit ''N, to my affidavit, is a true and correct copy of a
letter I received fi:om Dr Montoya dated December 10, 201 S, concerning recent i:eferrals of
patients to him.n
        Further Affiant Saith Not,
                                              :ZLU-
                                               Kirk B1ewe1> M.D.


                                                      ___ day of January,
        SWORN TO AND SUBSCRIBED TO BEFORE me on this _:]
2016.



                                                      Notu~~Ttate
                                                      ~~·o£B=               ofTexas




                                                139
                       '•\'EST TEXAS NEPHROLOGY ASSOCIATES
                                         STEVEF. MONTOVA,JR., M.D.

,ae East conc·,o                                                             3501 Execu1tva onve
San Angelo, T11118S 7G903.S94T
                                                                             San Angelo. TexaB 75904-8813



December 1         o. 2015
Coar Dr Kirk Bcewec
      As a staff physician at SACMC, I have noticed that my referral of patients from
the ER and consults from the hospitalist service has Jncreesed. I therefore would like to
address the following questions to the MEC:
    1. Hae thaFe .beeA a change ll'l the admJssJon poficles lo the ER
    2 Has there been a change ln the referral patters of the hospttalist.
    3. Is the hospital going to adopt the same policy ae the CMA ollnlc of "not tolerating
         anti-competitive behavior".


                                                      Respectfully,




                          P   C32S> 653.6773   F(325) 653-3B49   e aml2000@vdtdgney ooJ




                                                                                                            d9~:eo 9~ 90   uer




                                               EXflltfr A
                                     CAUSE MO . .8-1 S0,285-C

STEVE F. MONTOYA, M.D.,                         §       IN THE 119THDISTRICTCOURT
WEST TEXAS RENAL CARE, and                      §
WEST TRXAS NEPHROLOGY,                          §

       P{aintiffi,           §
                             §
vs.                          §                          OF
                             §
SAN ANGELO COMMUNITY MEDICAL §
CBNTBR end KIRK BRBWBR, M.D. §

       Defendants.                              §       TOM GREEN COUNTY, TEXAS


                           AFFIDAVIT OF ROBERT B. WAGSTAFF


STATE OF TEXAS                  §

COUNTY OF TAYLOR                §

        BEFORE ME. the undersigned authority, personally appeared Robert B. Wagstaff, who,
after being duly sworn upon his oath stated as follows:

       "My name is Robert B. Wagstaff. I am over the age of eighteen (18) years, have never
been convicted of a crime, and I am otherwise qualified to make this affidavit. I am the attomey
of record for Defendant Kirk Brewer, M.D. in the above-styled cause and as such, I have
pe1 sonal know ledge of the fuJlawing arttl it is true and eerreet.
        lam a 1989 graduate of Texas Tech School of Law and have been licensed to pl'actice in
Texas since November of 1989. I am also licensed to practice 1n all four U.S. District Courts in
Texas and before the Fifth Circuit Court of AppeaJs. I have handled civil litigation cases in Tom
Green County since J 996 I am board <'terti:6ed in Persona] lnjucy Trial l aw by the Texas Board
of Legal Specialization (since 1995) and as a Civil Trial Advocate by the National Board of Trial
Advocacy (since 2001). As such, I am familiar with the prosecution and defense of cases such as
this and what is reasonable and necessary for attorneys' fees and expenses. Further, I am
familiar witJ1 the case law and Texas Disciplioary Rules of Professional Conduct concerning
reasonable and necessary attorneys' fees and expenses. In reaching my opinions, l considered
the various rectors as required in making my determination, including the complexity of the




                                          E~IT2
mattert the amount of damages claimed, all lawyers involved on all sides, the time and skill
required. my ability and reputation, a11d also the experience of my partner, Jessica Hat le~ who has
assisted in the case. I believe that a reasonable and necessary hourly rate for this type of work in
a civil defamation/business interruption case in Tom Green County is no less than $250. 00 per
hour. We have ex.pended a total of 26.8 hours in this case through the filing of the amended
motio1t to dismiss. It is antieipated the.t an additional l heYrs will bu spetit traveling to and fi:om
San Angelo and arguing the motion to dismiss, plus reasonable and necessary expenses.
Accordingly, it is my opinion that the reasonable and nec.essary attorneys~ fees and expenses for
Defeadaat Boower tlu:ough January 1, 20J6, are $67QQ oo and likely an additional $1250,00
through the hearing plus $89.64 in expenses.
       Finally, the work on each cause of action bas been so intertwined as to be difficult to
separate one cause from the other. As such, it is my opinion that the entu:e fees should be
awarded ti one or more causes of action ore d1smissed.1'
        Further Affiant Saith Not.


                                                       ~/4,(~"~ ··---
                                               ltobetF~ Wagstaff


        SWORN TO AND SUBSCRIBED TO BEFORE me on this ih day of January, 2016.




                                             142
TABN0.5
                                                                                   Filed for Record
                                                                                   1/4/2016 3:52:21 PM
                                                                                   Sheri Woodfin, District Clerk
                                                                                   Tom Green County, Texas



                                  CAUSE NO. B-15-0285-C


STEVE F. MONTOYA, JR., M.D.                §         IN THE DISTRICT COURT OF
WESTTEXASRENALCARE                         §
WESTTEXASNEPHROLOGY                        §
                                           §
vs.                                        §         119111 JUDICIAL DISTRICT
                                           §
SAN ANGELO COMMUNITY                       §
MEDICAL CENTER AND                         §
KIRK BREWER, M.D.                          §         TOM GREEN COUNTY, TEXAS

                          RESPONSE TO MOTION TO DISMISS

      COMES NOW, Dr. Montoya, Plaintiff and responds to the Motion to Dismiss by
Defendant Kirk Brewer, M.D.

      1. The Motion to Dismiss is based upon Texas Anti-Slapp Statute, Chapter 27 Actions
         invoking the exercise of certain Constitutional Rights.

      2. No affidavits are attached to the Motion.

      3. Attached hereto is the affidavit of Dr. Montoya as evidence in support of his
         response.

      4. The purpose of this lawsuit has nothing to do with the Defendants Constitutional
         Rights to speak freely, associate freely and participate in governmental as permitted
         by law. These are the requirements to meet in filing a Motion under the Anti-Slapp
         Statute Tex.C.P.R.C.§27.005(b) and as set out in Paulsen v. Yarrell 455 SW3d 192
         (Tex.-App.-Houston {r' Dist.] 2014, no pet.) (quoting In Re Estate of Check 438
         SW3d at 836).

      5. The evidence presented by Dr. Montoya is that this case deals with the same standard
         as setforth in the recent Texas Supreme Court of In Re Memorial Herman Hospital et
         al 464 SW3d 686 2015. This case is on concerning anti-trust, business damages and a
         campaign to stop competition by Dr. Montoya at San Angelo Community Medical
         Center.

      6. The Texas Supreme Court agreed that clear and specific evidence under the Texas
         Statute includes relevant circumstantial evidence. (In Re Lipsky, 2015 WL1870073).
         This evidence of Dr. Montoya meets the standard.

      7. In this case th~ evidence is both direct, actual and circumstantial. The pleadings and
         affidavit of Dr. Montoya prove that his case is real and not a continually protected
         case.



                                               94
8. The remaining part of the Motion under TRCP 91a is really a Special Exception.
   These have been answered by Plaintiff's Amended Petition filed pursuant to the
   Order on Special Exceptions.

   Plaintiff requests attorney fees and costs be awarded for having to respond to this
   frivolous motion.


                                          Respectfully Submitted
                                          Paul Craig Laird II Law Firm, PLLC
                                          Isl Paul Craig Laird II
                                          By: Paul Craig Laird II
                                          800 W. Airport Freeway
                                          Suite 880 LB 6015
                                          Irving, TX 75062
                                          972-554-0929
                                          214-260-4935- fax
                                          pcl880@aim.com
                                          SBOT 11795420
                                          Attorney for Plaintiff




                                     95
STATE OF TEXAS      §
                    §                        AFFIDAVIT
COUNTY OF TOM GREEN §

       BEFORE ME the undersigned authority appeared Steve F. Montoya, Jr. M.D. and after
being duly sworn under oath stated.

      "My name is Steve F. Montoya, Jr. M.D. I am the Plaintiff in this case. I have
knowledge of all the facts of this affidavit as Plaintiff and all facts are within my personal
knowledge true and correct and that I was involved with facts stated.

       I have not used any patient name, except where authorized by the patient or their agent, to
avoid any HIPAA or privacy violation.

       1. I was admitted to practice nephrology at San Angelo Community Medical Center in
           1981. I have full staff privileges for the practice of nephrology at San Angelo
           Community Medical Center. This case does not involve the rights of Defendant Kirk
           Brewer, M.D. to speak freely, associate freely, and participate in government as
           permitted by law. The facts of the case are that Kirk Brewer, M.D. was during his
           actions an officer and/or Chief of Staff of the medical staff of San Angelo
           Community Medical Center.         Kirk Brewer, M.D. was hired by San Angelo
           Community Medical Center to run the hospitalist service. As an officer of the staff
           and Chief of Staff Kirk Brewer, M.D. owed me a member of the staff a fiduciary duty
           to not interfere by direct or indirect action with my practice of nephrology at San
           Angelo Community Medical Center.

       2. Kirk Brewer, M.D. came to San Angelo Community Medical Center in 2007. Part of
           my practice and obtaining patients is that the hospital emergency room uses a rotating
           system of specialists admitted in that practice to see patients in the hospital and
           emergency room. When you are the named specialist you receive a call from the
           emergency room physician that a doctor with your specialty is needed for a patient.
          A big part of my practice was obtaining new patients and treating existing patients
          that came to the emergency room and needed a nephrologist. Since 1981 I have
          gotten new patients from the emergency room.




                                               96
3. Until 2007 I would receive 10-20 calls from the emergency room, per month to treat
   either new or existing patients at the San Angelo Community Medical Center. Since
   2008 I have received only one call from the emergency room or a hospitalist for
   consultation as a nephrologist, except for one time for treatment of a new patient or
   existing patient that suffered with kidney problems.

4. The one time for a new patient is described below. On January 24, 2014 I was called
   by the San Angelo Community Medical Center emergency room physician on duty
   and the hospitalist Dr. Bartels.    Dr. Bartels and the emergency room physician
   informed me that a patient was diagnosed with acute renal failure. I was informed my
   name was on the call board in the emergency room as nephrologist on call. Both of
   the above doctors asked me to consult concerning treatment for that patient. I gave
   my initial consult advice/orders of treatment to both doctors. This consultation call
   was to me at 9:38 p.m. I informed them I would come see the patient and then review
   the test results and determine any additional treatment for the patient. Attached as
   Exhibit A is a true and correct copy of the redacted hospital record showing the facts
   on January 24, 2014.

5. On January 25, 2014 at 8:10 a.m. Kirk Brewer, M.D. took over the hospitalists care of
   the patient as his rotation as the hospitalist started. Then without ever seeing the
   patient or the chart Kirk Brewer, M.D. cancelled my consult and treatment by me and
   consulted another nephrologist. The nephrologist he brought in for consult is one that
   is in a group that Kirk Brewer, M.D. has a contract for paid services. Kirk Brewer,
   M.D. without seeing the patient, or chart changed the patient's doctor. This change of
   nephrologist was for Kirk Brewer, M.D. 's economic gain and caused me economic
   loss. Attached as Exhibit B is a true and correct copy of the redacted hospital record
   showing the facts on January 25, 2014.


6. Kirk Brewer, M.D. by his actions of removing me as the nephrologist published a
   statement that I was not a competent nephrologist to treat patients coming to the San
   Angelo Community Medical Center emergency room. Kirk Brewer, M.D. was aware
   that his actions would become known to the staff physicians of San Angelo



                                       97
   Community Medical Center and that he was by conduct and a whisper campaign
   saying I should not be allowed to treat patients at San Angelo Community Medical
   Center.

7. The statements and actions of Kirk Brewer, M.D. were published by his conduct. The
   actions were referring to me as a non-competent nephrologist. The statement(s) were
   defamatory and caused me economics loss.

8. The total loss is between $1,000,000.00 and $6,500,000.00 from not receiving any
   referrals from the emergency room or hospitalists.

9. The defamatory statements are untrue. I am a competent and qualified nephrologist
   to treat patients at San Angelo Community Medical Center.


10. The actions of Kirk Brewer, M.D. were intentional or done with negligence when
   Kirk Brewer, M.D. knew that the statement was false and his actions would lead a
   reasonable prudent physician or patient knowing/believing of its defamatory
   potential.


11. As officer and as President of the medical staff Kirk Brewer, M.D. must follow the
   rules at San Angelo Community Medical Center and staff of San Angelo Community
   Medical Center and have a new patient in the emergency room or hospital that needs
   a specialist consultation assigned to the name off the rotating consultation list. By
   Kirk Brewer, M.D. not following this procedure I did not receive any consultation
   requests from the emergency room or hospitalist at San Angelo Community Medical
   Center in 2008-present and one in 2014.


12. Attached to this affidavit as Exhibit C is the true and correct sworn statement that an
   existing patient of mine Mrs. Welch tried to see me in the emergency room of San
   Angelo Community Medical Center and that the emergency room would not call me
   to treat my existing patient Mrs. Welch is over 90 years of age and I have treated her
   for at least 20 years.



                                       98
    ----~-·--·----···---                                          -   -   -   .




         13, Another patient of mine, whose name is withheld per privaoy rights, who is also over
             90 years of age and has been my patient fo1· a.t least lOyears requested roe when she
             went to t~ emergency room and she also was refused to see me,

         14. A patient ~as the absolute· right to be treated by their physician. Both of the above
                         i
             happened when Kirk Brewer, M.O. was President of the medical std' or an officer of
                         I                                                                      •
             the medicai staff and when he was head of the hospitalist service when the above
             hap~ened. '.

         Again by the =actions of the hospitalists and emergency toom physicians. who are
                             •       •               •   t                         I.   I   •




controlled by thoir su~erv1aors or lead physicians Kirk Brewer, MD. ~u.gb t~ actions
                                                             or
defamed me as a quaUfied physioian staff at' San Ang~lo Community Medical Center.
                                 ?




         Furthet affi.ant saith not,·~

         Signed this·4t11 day of January, 2016.




       Subscribed and sworn to me the undersigned notacy by Steve F. Montoya, Jr., M.D. on
    th
the 4 day of January, 2016.




                                              ~      oAULACRUZ        \i,
                                              ~ MV COMMISSION EXPIRES t'
                                              ~M      May 151 2018
                                         •   ,,W.W




                                                                                  99
                                                                n)                                       r\ )
               t-

                                                                                                                                                        1111111~1111//lll/lfIll
                                                                                                                                                               · spo•

               ALLERGfES & SENS!TIVlTrES O No Known ,\lleri:ies                                                0 lb O kg      HEIGHI       £       cc   a inLl cm
               urtUG                                                REACTION                                                           nEACTION


               2.                                                                               5.
               3.                                                                               6.


                                    ( J Another brand of drug identical in form and content may be dispensed unless checked

                                                   MPLETE TffiS SECTION FOR PATIENTS WHO WTLL IlE SENT TO A PATIENT ROOW!
               Once    lime           1i'l_Admi< to (~patient Status
                                      'o Place in Observation Status                                                       0 !CU       O OB/L&D
                                       0 Pince in Outpati.:nt Stntus


                                                      .              1~
           r                         ·;j~v
                                       /) A ~ k-?-, /~~
                                                                                                r

          I
          I                                       ~l      #,~~/~~
                                                  , 7?] __ / ~(>rl~ ·
                                          o,~'/
          I
                                              :rJo;t;0;
                                                      fa/!JJJvjj:jjt//ct7~~),_ _c ,V,~
            I ·[ ~;f,),.,.Jv, -7Y/9~l,:JY
                         f& .:;/-
           I ~ ~ !~kfYj/5 1/~/.A
                                                                                                                     a                         .
                                    '-J,: .        l,M'TJ)I                                          1/_,.,.
                                                                                                                                       1



          II          5 13/YYf /ly/J~~}w>?                  ~
                                                                        ~$'         ,
                                                                                                                                   1

      I                                         ~»?h)}- M                                      /1~7-
                                          -·· ·-- -.                                              ___                ..----



      I
:t. / I
4-_   I                                                                     04·/J~
~
~


·t        Physician Signature
                                                                           .~!?P o!!#fr;,,                                                                   <7


      Physician Admission Orders                                                        ]
      NS-2701-IOHMS
                        ...         10/10 (Rev. 07/ 12)
                                                      )l
                                                  1:: 1 f' .
                                                                     Page: l uf I       /~
                                                                                        . ,!
                                                                                               00
                       rc ~·. ,'. ·., .:.:,. ,.!.::; ! )
                              " 1   ·.\   .. ,,

                                                       1·
                                                                                        ;:;
                         __.,, •• : •• . . . ... .,         I   •                       "-
                                                  0.
     r


                                                                                                                                                  IIIIIIIIIIIIIIIIIIIIIIIII
                                                                                                                                                         ·1po·

     ALLERGIES & SENSJTTVITIES                    O No Known Allergies              WEIGHT: _ _ _ 0 lb O kg               HEIGHT;_ _ _ 0 In O cm
     DRUG                                              REACTION                     DRUG                                        REACTION




    /i:
                             J    Another brand of drug identical in form and content may be dispensed unless checked
              !
              i                   COMPLETE THIS SECTION FOR PATIENTS WHO WILL BE SENT TO A PATIENT ROOM!
             !
    Date     / Time          0 Admit to Inpatient Status                    UNIT (d,eck one):
                             0 Pince in Observation Status                  0 Med/Surg     O Med-Telemetry
                                                                                                     O TCU O OB/L&D
                             0 Place in Outpatient Status                   0 Other _ _ _ _ _ _ _ _ __ _ __ __

   ( t.'=5        - ·· _    l,.O "'~, o ,i:._ _    -~ 0 ___ ....,__~
                                                                            :.~~~ -~ -'.>-? : : . ' ! . ~ ~-.· ..
             ,.'3 (.
      -···;-·-·-·         . ...   · ·---·--- - ---                     -- .-----    ..   --    --- .. .-..;;;;._ --····- ···-·     .   .. ..
                                                                                                           . __f3- . -~ --<-(~ /       ., ...
 ~-:1- e~-1:=:rti1_1 t () 'Mil __
 l~Y. rJJ(l~--tJ;;~k . jlztJ;f;ftJ~~i--: .... .
   ----··; · · ... (.__ , --i!f-~-/)J-§; - ~ ~·-·- ·-... _,_
 ... t j .::~:./ ·~ /Ja""-xllll~ .::-· -- .. . .
 ·- . 1- .... ·- .---- - --- PZ22.- ~--"J7~-~--~:: /J-/> J ..
  . ..~_-.·;-_···_ :::~-~tr~ lf,/4-lt:Y~/~/'§'7/N'ltd        1
 - r--~-=:~ -·--------- .--_. ._. -__--~·-·. _· ~-.·:. :.-~~:~~-- - · .-.-·-
 - -r-----~@-.---~~-~-:~~· ·-·. ---~~-.--~>-- --··-·---..--·-- . ····-· .
  ·-· -· - i· - ·-· ... - ...·-----------·····- - - - ·-----
 . . -} ·-         . ..
-.. . l-··---L-            -- . -... .. ----- ----·- ---..-·-
.....·-·--. L--~-- ·1-· -----·.-·. ·-. -----
                                       -·.-- ·-----
                                                 -----
                                                    -
                                                      ··--
   ... 1. .. --·------ --··- ·--- ··-· .. - ----· - ·· ·
L:. _ J __ -----·---------·----·------- -·
                                                                                                                         Date                   Time
  Physician Signature
                                                                                     sm ANGELO COMMUNITY MEOICIII. CTR
Physician Adrri.issipn Ofders
NS-2701-IOHMS
                                      ..
                   fotlO (Rev. 01/ 12)"                    Pagel of I
                                                                              i
                                                                              ..J


                                                                              .0
             L., ;;,_' t> /f-        d                                       p..
12/16/2015 WED 13,23          PAX 3252244284 West Texas Nephrology ~~~ CRAIG LAIRD ATTORNEY      ll)003/003




            April 17, 2014




        I am Karen·,·TJms; the· daughter of Eunice Welch. I am writing to you on her behalf
        concerning her admission to SACMC on 11/28/2011. When asked by the ER admission
        staff, we replied that "Dr. Montoya" was her doctor. We were admitted to the
        hospitalists' service. We do not appreciate the fa_ct that we did not have our physician
        of choice at the hospital. Please correct this to help maintain quality patient care.


        Sincerely,

       Karen Tims            ?,
       J('ttu---17~
       Stateof ~
       County of        c:zim ~
       Subscribed and swo~ to before me this                 _jJ!f;;of ~        , ;)..() I   f


     e
     ....
                 ROSEMARY ANDROS
                My Commrssron Exolres
                   August 1~, 2017
                    '    .   ''''''''''"'
                                                 /~~~
                                             { Notary Public




                                        .   I ' j ' f-
                                        £,th.,   J-.:,,
                                                          c.., 1"02
TAB NO. 6
                                                                                    Filed for Record
                                                                                    1/11/2016 4:15:34 PM
                                                                                    Sheri Woodfin, District Clerk
                                                                                    Tom Green County, Texas



                                  CAUSE NO. B-15-0285-C


STEVE F. MONTOYA, JR., M.D.                §       IN THE DISTRICT COURT OF
WEST TEXAS RENAL CARE                      §
WESTTEXASNEPHROLOGY                        §
                                           §
vs.                                        §       119th JUDICIAL DISTRICT
                                           §
SAN ANGELO COMMUNITY                       §
MEDICAL CENTER AND                         §
KIRK BREWER, M.D.                          §       TOM GREEN COUNTY, TEXAS

                  SUPPLEMENTAL RESPONSE TO MOTION TO DISMISS

      COMES NOW, Stephen F. Montoya, Jr., M.D., Plaintiff and files this Supplemental
Response to the Amended Motion to Dismiss.

      1. Pursuant to T.R.C.P. 9I(a)3(b) a Motion to Dismiss must be filed at least 21 days
         before the Motion is heard. Respondent objects to Amended Motion as not allowed
         without restarting the period of T.R.C.P.91(a). (T.R.C.P.91(a).5(d)) and requires the
         hearing be reset T.R.C.P.91(a)6. By filing the Amended Motion the Movant has
         waived the right to be heard.

      2. Pursuant to T.C.R.C.P. Chapter 27 a Motion to Dismiss a legal action under this
         section must be filed not later than the 60th day after the date of service of the legal
         action T.C.P.R.C.§27.003(b). Respondent objects to the untimely filed affidavits and
         Amended Motion. The Court should strike the affidavits as untimely filed.

      3. Attached to this Motion is the affidavits of John Hunt, M.D. (Exhibit I) attached
         hereto as if setforth at length and a second affidavit of Plaintiff Stephen F. Montoya,
         M.D. (Exhibit 2) attached hereto as if setforth at length that prove the whisper
         campaign and that the call list is a requirement of Medicare rules and that the actions
         of Dr. Brewer were to hurt Dr. Montoya economically and professionally.

         Prayer

         The Respondent prays the Court deny the Motion to Dismiss.




                                            177
                                                      Respectfully Submitted
                                                      Paul Craig Laird II Law Firm, PLLC
                                                     Isl Paul Craig Laird II
                                                     By: Paul Craig Laird II
                                                     800 W. Airport Freeway
                                                     Suite 880 LB 6015
                                                     Irving, TX 75062
                                                     972-554-0929
                                                     214-260-4935- fax
                                                     pcl880@aim.com
                                                     SBOT 11795420
                                                     Attorney for Plaintiff

                                      CERTIFICATE OF SERVICE

        This is to certify that this Supplemental Response was serviced via the e-filing system on the 11 th
day of January, 2016.


                                                     Isl Paul Craig Laird II




                                               178
 STATBOPTBXAS                    §
                                 §             AFFIDAVIT
COUNTY OF TOM GREEN§

      ·BBPORB MB the undersigned authority appeared John Hunt, M.D. and after bejng duly
sworn under oath stat~d.         ·

        "My name is Joh11 Hunt, M.D. I have knowledge of all the faots of'tbis affidavit and all
facts aro within my personal knowledge true and ootrect end that I was involved with. facts
stated.

         "J was on the staff of San Angelo Community Medical Center when Dr. Brewer was
brought ln to head up the hospitalist service and emergency room of San Angelo Community
Medical Center. San Angelo Comt'0.\1~lty Medical Conte\' ha.cl a call list in the emergenoy room.
that listed on-01111 physicians to be referred patients. Tbis list was kept pursuant to Medicare
regulations. The lt$t was to be followed pursuant to the Medicare regulations unless the patient
requested a differ"'nt physician. I learned of the whisper campaign against Or, Montoya that he
was- not to bo re!emd patien1s by the e1nergency room and haspftallst. Dr, Montoya Is an
indepen:dent-pbysician. Until Pt. Brewer came to San Angelo Co.l1)1ttumty MedfcaJ Center the
lnd,_pettd~t physjcians would receive referrals ftom.hospitallsts. Dr• .Brewer lead a campaign to
not use:fadepehdent physicians, Independent physicians are physicians that do work for or are
affiliated with the hospital owned groups.

       Further filftlant saith not."
       Sjgned this 11 th day oUanuary, 2016.


                                                   Joiii<ifuirt,M..
       Subscribed and swom to me the undersigned notary by John HU11t. M.D. on 1be I 1111 day
of January, 2016.




                                                                          JAMIE L. SANCHEZ
                                                                      Notary PubUC, State ot texae
                                                                        My comm1a,1on E,cplHH
                                                                             July H, 2016
  STATE OP TEXAS                     §
                                     §              AFFIDAVIT
  COUNTY OF TOM GREEN§

    . BEFORE MB the undersigned authority appeared Steve F. Montoya. Jr. M.D. and after
  being duly swom W:lder oath stated.

        "My name is St.e"e P. Montoya, Jr. M.D. I am the Plaintiff in this case. I have
  knowledge of all the facts of this affidavit as Plaintiff and all facts are wfthin my personal
  knowledge true and oorrect and that I was Involved with facts stated.

         I have not used any patient naine, exoept where authorized by the patient ox their agent, to
  avoid any HIPM or privacy violation.                .                            . .·

         ' 0n January 25~ 2014 at 8:10 a.m. Kirk Brewert MD. took_.over the hospitalists care of
             4

  the patiettt referred in Exhibits A and B as his rotatl01~ as the hospitalist started. Then witbo\lt
  ever seeing the patient or the chart Kirk Brewer, M,D, cancelled my consult and treatment and
  consulted another nephrologtst. 1went to the call board and witnessed my name on call as the
  nephrologist on call on January 24 and 25, 2014. The San Aogclo Community Medioal Center is
  icqwred. to h~vc an official BMTALA Medicare call list for on call physicians for the San
  Angelo Community Medical Center to take Medicare patients. This is the list my name was on
  and was intentionally ignored. This also "Violates a patient's right to choose their physician. This
  list was followed tmtil Dr, Brewer oame to San Angelo Community Medioal Center and wok
  charge. of hospitalists. The nephrologist he brought in for co11SU.lt is one that is in a group that
  Khic Brewer, M.D, has a contract for paid services. Dr. Brawer did not see the patient when he
  remO'Yed me as the treating nepbroJogist he issued the change via a telephone order (see Exhibit
  B). Kirk Brewer> M.D. without seeing the patient. Dr chart changed the patient's doctor. This
  change of nephrologlst was for Kirk Brewer, MJ). 's economic gain nnd caused me economic
  loss.

           Again by the aotions of the hospitalists ao.d emergency room physicians who are
   controlled by tbelr. sµpeJ;Visors or lead. physicians. Kirk- Brewer, M.D. through this actions
...defamed ine· as a qualified physician or staff at San Angelo Community Medical Center.

         Further affiant saith not..,

         Signed this 1Ith day of Januacy, 2016.

                                                            Steve

           Subsctt"bed and sworn to me tho undersigned notary              F. Montoya, Jr., M.D. on
  tho 11 th day of January. 201G.                                           ~
                                                            (Jab-~ (;t4--
                                                        .            '
                        .
                      t!J·'
                      ·\~.· (&J
                       ~~ •:m.,tf
                                         DALILACRUZ
                                    MY COMMISSION EXPIRES
                                          May 15, 2018
                                                            Otm'yPubllo         ~
                                                             n     )                                      /\)
            t-

                                                                                                                                           llll~llllllllllll /111
                                                                                                                                                  'IPO'
           ,\LL ERGfES & SENSITIYfTfES                           0 No IC110wn ,\ller~les                  OlbO kg                          0 ln Q cm
           urttJG                                                   REACTIO~


           2.
          3.                                                                                    6.


                                    ( J Anolher brand of drug fdenUcaf In form and content may be dispensed unless checked
                                               MPLETE THIS SECTION FOR PATrENTS WHO W!LL DE SENT TO A PATIENT ROO.Yf!
          Och.:·       limo
                                                                                                                    o rcu   o   OFl/l.&D
                                     · 0 Ploco In Oulpotlcnr S1c1us · ·




                              't




  I
                                                                                                     -·-    -·
I
                                                                                                                                                             ,J
   Phy~lc!an Slg,:iarure
Physician Admission Orders                                                        ]                   .
                                                                                                              .         .
NS-270 1- IOHMS             10/10 (Rev. 07/12)                   /1:iga I uf I    .'.J
                                           ,,:·1   ···T)                                   1         ..
                   r
                                                                                  j
                                            .!:.~ I l
                                                                                               ('
                   c .,···
                   ,--
                       ,'. ·.:,-. '...:.. ....
                       ' ' l ',\   .. , ,

                                                 ,       .                        J!
          ---                   ----




                                                              /\.
              r


                                                                                                                                                                1~~11111111~11111111
                                                                                                                                                                      • ll'O'

             ALLERGIES & SENSITTYITIES O No Known Allergle1                                   WEIGHT:_ _ _ O lb CJ kg                       HEIGHT: _ _ _ 0 In D cm
             DRUG                                                   REACTION                  onuc                                                R&ACTIO/'I



          {,1.~:                                                                             It
                                          J Another brand of drug Identical in form and content may be dispensed unless checked
                      !
                      i                      COMPLETE THIS SECTION FOR PATIENTS WHO W!LL BE SENT TO A PATIENT ROOM!
                      I
          Dara        i Tiriic ... ·_o_ AW!J_I~ io_!iipaUc:nt Status                   UNIT (duel: one):
                                          O Place in Observation S14tus                0 Med/Surg      O Med•Tclemetry               0 ICU      0 OB/L&D
  . . . - .I                         . . 0 .P.!ace.in OutpaUent StaruJ                 0 Other

                                     . -~~"'e-i,:2}.- . . ·~ o . i--..,)           __ SC _. ..'}- ~ C / ~ ~-.·                                           _
        .... . ....i-·-·-· ... ·- · -- - - - - - - - -..---- . . - -                                   -·--·--·~a~-;:ii.,G .. ..
         - . ·:- ·1= ··-,"-f"..Fc:f=, r!t<ht (}-
                                              · ··- ·-··-·-...                                                            _(..L .. - ......   - · . . ., ...
         .--· . __ .,                     -·--------'-~--.J- 2:d,2- _~-t-1-<~;............
                                                                                       _ ...!,,-~::....

    ~ii - ·. : _ ~ ~ ~--; - - - . .
    --·-·/·• ·· '-··-· ' 2 ~ ~ . r : m - ~ ' - · -· .
         . ./-·· ·/· __J~----=~                                                            _,... '/!i:i~/1-Y~ ·-·-···.:_. ...---
    :·-.r=.:    <.::-~~~~
        · -· I· - · - · _.,___
                                              ~-  - ~  - ~ -~   -~:/4·~-. /> > ,
                                                                .w r - d ~ .. /1~-/cY-~· -·
    ... r-·-.. -- .. -_---. . _____ . __.... ... ---- - ........ ·-·---· . . . .
                                                                                                                                                 . /:P-7£"#? .

  --·-·"/
  __,
          --~-~ . -??~@
        /,_ __ .. ~
         _...        ..
                                                                               .               . .. _·----_.. ____
                                                                               ---··----· .. ...       .._..
                                                                                                               . ·-· .......___·-··-
                                                                                                               .,           . ,,  - ..
                                      .                                   .        .
  ..       . ,_.,,   _ __ ....... .... ... .-.----·------- ··- ·-
                           _.    ,                                                             .     ·-·   ···· -   ··-
   ··--·-· -              ·-    ... ....... ----·- -·-·-··----·----                           -
  . . -.J- -. . . - -···. ·--·· ---· ---··-·· .-

 :: :Ft~: _:__-. ~~>
 .. ... . ...........                --
                                                              : - ---=~~-
                                            ·- --·--- -- ··------                      .
.....--.L- .                                      ---· - ·-·-- ---
                                                                                                                                     Date                 nme
     .
   Pliysldan
          . Sfgnatura
Physician Adni.iss!Jln 0{_ders .                         '!
NS-2701-101-Ilv!S                    10/10 (Rc:V. 07/ 12)'          Pagel of I


                   z:' i, _: b-/ ,f          t
TAB NO. 7
                                     CAUSE NO. B-150,285-C

STEVE F. MONTOYA, M.D.,                            §    IN THE 119TH DISTRICT COURT
WEST TEXAS RENAL CARE, and                         §
WEST TEXAS NEPHROLOGY,                             §
                                                   §
       Plaintiffs,                                 §
                                                   §
vs.                                                §    OF
                                                   §
SAN ANGELO COMMUNITY MEDICAL                       §
CENTER and KIRK BREWER, M.D.                       §
                                                   §
       Defendants.                                 §    TOM GREEN COUNTY, TEXAS


       ORDER ON DEFENDANT KIRK BREWER, M.D.'S MOTION TO DISMISS
              PER THE TEXAS CITIZENS PARTICIPATION ACT

       On the 12th day of January, 2016, came on to be heard Defendant Kirk Brewer, M.D.'s

Motion to Dismiss and for Recovery of Costs and Attorney's Fees per the Texas Citizens

Participation Act, and the Court having considered same, is of the opinion that said motion is well

taken and should be granted.

       IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED that Plaintifrs claims for

tortious interference with current and prospective patient relations, defamation per se, malice,

business disparagement, restraint of trade, and conspiracy be dismissed.

      IT IS, FURTHER ORDERED, ADJUDGED, and DECREED that Defendant Kirk Brewer,
                                                                              $7,950 + $89.64 Expenses
M.D. be awarded his reasonable and necessary attorney's fees in the amount of$_ _ _ _ _ as

well as costs of court ia the amouat of$- - -

        IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED by the Court that Kirk

Brewer, M.D.'s motion to dismiss per the Texas Citizens Participation Act is GRANTED, that



ORDER ON DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS                                  Page 1 of2
PER THE TEXAS CITIZENS PARTICIPATION ACT




                                                 194
Defendant Kirk Brewer, M.D. is hereby dismissed from this cause as there are no remaining claims

against him, and costs and attorney's fees are to be paid as set forth above.
       SIGNED this _ _ day of February B, 2016 2016.


                                               ~Lir.4~
                                                JUDGE PRESIDING                     ~




ORDER ON DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS                                Page 2 of2
PER THE TEXAS CITIZENS PARTICIPATION ACT




                                                 195
TAB NO. 8




   1
                                                       CAUSE NO. B-150,285-C

                STEVE F. MONTOYA, M.D.,                               §    IN THE 119TH DISTRICT COURT
                WEST TEXAS RENAL CARE, and                            §
                WEST TEXAS NEPHROLOGY,                                §
                                                                      §
                        Plaintiffs,                                   §
                                                                      §
                vs.                                                   §    OF
                                                                      §
                SAN ANGELO COMMUNITY MEDICAL                          §
                CENTER and KIRK BREWER, M.D.                          §
                                                                      §
                        Defendants.                                   §    TOM GREEN COUNTY, TEXAS


                       ORDER ON DEFENDANT KIRK BREWER, M.D.'S MOTION TO DISMISS
                         PER RULE 9Ha} OF THE TEXAS RULES OF CIVIL PROCEDURE

                        On the 29th day of January, 2016, came on to be heard Defendant Kirk Brewer, M.D.'s

                Motion to Dismiss and for Recovery of Costs and Attorney's Fees per Rule 91(a) of the Texas Rules

                of Civil Procedure, and the Court having considered same, is of the opinion that said motion is well

                taken and should be granted as follows:

                        IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED that Plaintifr s claims for

                tortious interference with current and prospective patient relations, defamation per se, malice,

                business disparagement, restraint of trade, and conspiracy be dismissed.

                      IT IS, FURTHER ORDERED, ADJUDGED, and DECREED that Defendant Kirk Brewer,
                                                                                        $7,950.00 + $89.64 Expenses
                M.D. be awarded his reasonable and necessary attorney's fees in the amount of $_ _ _ _ _ as

                :well as costs of court iff the awo~t    i ~ boll ti ,is Order
                                                       une                 ;provided  however that Defendant may recover


~
~" ~.      J tnese amounts Only one 1me an no                    I             and the Order graniting the Chapter 27 Motion; provided
"oJ,(.,A,,,,'   the Court finds that the claims are so intertwined that segr~tion of fees between the 2 motions is noJ_possible.
                        IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED by the Court that Kirk

                Brewer, M.D.'s motion to dismiss per Rule 91(a) of the Texas Rules of Civil Procedure is



                ORDER ON DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS                                          Page 1 of2
                PER RULE 91(a} OF THE TEXAS RULES OF CIVIL PROCEDURE




                                                                     196
GRANTED, that Defendant Kirk Brewer, M.D. is hereby dismissed from this cause as there are no

remaining claims against him, and costs and attorney's fees are to be paid as set forth above.
                                     February 8, 2016
       SIGNED this _ _ day of _ _ _ _ _ _ 2016.


                                                ~ul/rlJJ-~"tM~
                                               JUDGE P R E S I D I N G ~




ORDER ON DEFENDANT KIRK BREWER, M.D. 'S MOTION TO DISMISS                                  Page 2 of2
PER RULE 9l(a) OF THE TEXAS RULES OF CIVIL PROCEDURE




                                                 197
TAB NO. 9
                                                                                                     Filed for Record
                                                                                                     4/1/20164:11:24 PM
                                                                                                     Sheri Woodfin, District Clerk
                                                                                                     Tom Green County, Texas



                                            CAUSE NO. B150285C

STEVE F. MONTOYA, M.D.                                §        IN THE DISTRICT COURT OF
WEST TEXAS RENAL CARE                                 §
WESTTEXASNEPHROLOGY                                   §
                                                      §
          Plaintiffs,                                 §
                                                      §
v.                                                    §        119th JUDICIAL DISTRICT
                                                      §
SAN ANGELO COMMUNITY                                  §
MEDICAL CENTER                                        §
                                                      §
                                                      §
           Defendants.                                §        TOM GREEN COUNTY, TEXAS


    DEFENDANT SAN ANGELO COMMUNITY MEDICAL CENTER'S TRADITIONAL
                    MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

           COMES NOW, Defendant San Angelo Community Medical Center (hereinafter

"Defendant") and files this Traditional Motion for Summary Judgment, and respectfully shows

the Court as follows 1:

                      I. BACKGROUND & SUMMARY OF THE ARGUMENT

           Plaintiff originally filed this lawsuit in July of 2015 against Dr. Kirk Brewer ("Brewer")

and the moving defendant, San Angelo Community Medical Center ("SACMC"), alleging

numerous causes of action related to supposed ill-treatment of Plaintiff and his medical

practice's reputation. 2 After a several amendments to his Original Petition, this Court granted

Brewer's Motion to Dismiss and ordered the case against Brewer to be dismissed under Texas

Rules of Civil Procedure rule 91(a) and the Texas Citizens Participation Act on February 8,



1
    For judicial economy, this Motion is concurrently filed with Defendant's Motion to Dismiss and Motion for leave
to File Its Motion to Dismiss.
2
  See Plaintiffs Original Petition.


SACMC's Motion For Summary Judgment as a Matter of Law                                                         Page 1

                                                       208
2016. 3 As explained more fully below, because all of Plaintiff's claims of liability against

SACMC derive from Brewer's alleged bad acts and Brewer has been dismissed from this case,

SACMC now moves this Court to dismiss all claims for relief, with prejudice.

                                              ARGUMENT

    A.      STANDARD OF REVIEW

         Traditional summary judgment under Texas Rule of Civil Procedure 166a(c) is proper

when a movant establishes that there is no genuine issue of material fact and that it is entitled to

judgment as a matter oflaw. Gary E. Patterson & Assocs., P.C. v. Holub, 264 S.W.3d 180, 190

{Tex.App.-Houston [1st Dist.] 2008, pet. denied) (citing Randall's Food Mkts., Inc. v. Johnson,

891 S.W.2d 640, 644 {Tex.1995) and Tex.R. Civ. P. 166a(c)). "A defendant is entitled to

summary judgment if the evidence disproves as a matter of law at least one element of each of

the plaintiffs causes of action or if it conclusively establishes all elements of an affirmative

defense." Id.

    B.      SACMC IS ENTITLED TO SUMMARY JUDGMENT ON ALL OF PLAINTIFFS' CLAIMS
            BECAUSE PLAINTIFF'S CLAIMS AGAINST BREWER HAVE BEEN DISMISSED.

         As best SACMC can glean, Plaintiff's Fourth Amended Petition, his current live

pleading, alleges six causes of action:

    1) Tortious Interference with current and prospective business/patient relations (Pl.' s 4th
       Am. Pet. ,r,r 7-7.7);
    2) Tortious Interference with current and prospective business/patient relations - Exemplary
       Damage (Id. at ,r 8);
    3) Defamation Per Se (Id. at ,r,r 9-9.8);
    4) Malice (Id. at ,r 1O);
    5) Business Disparagement (Id. at ,r 11 ); and
    6) Restraint of trade (Id. at ,r 12-12.8).




3
 See Order On Defendant Kirk Brewer, M.D.'s Motion to Dismiss Per The Texas Citizens Participation Act,
attached as Exhibit A.


SACMC's Motion For Summary Judgment as a Matter of Law                                                    Page2

                                                   209
       The gravamen of Plaintiffs allegations concern Brewer's supposed "whisper campaign"

to "wrongly ... cast Dr. Montoya's stellar reputation under a dark cloud" and the bringing up of

Plaintiff on charges of improper care "to discredit Dr. Montoya and his ability to practice

medicine in San Angelo and at San Angelo Community Medical Center." Id. at           11 6.15-17.
Plaintiff further alleges that Brewer "was and is employed by and acting in furtherance of the

business of (SACMC) and its medical practices" and "at all times acted for (SACMC)." Id. at ,I

6.6. Aside from Brewer, Plaintiff does not specifically allege in his live pleading any other

individuals who took part in the alleged various defamatory and conspiratorial schemes Brewer

supposedly perpetrated. Further, Plaintiff alleges no direct or separate liability claims against

SACMC above and apart from the actions of its agent, Brewer.           Instead, SACMC's only

potential liability sounds in the doctrine of respondeat superior.

       Under Texas law, a master can only be held liable for the servant's misdeeds if the

servant committed misdeeds. The Texas Supreme Court has repeatedly made this clear. See

Knutson v. Morton Foods, Inc., 603 S.W.2d 805, 807 n. 2 (Tex.1980) (noting "that where the

employer's liability rests solely on respondeat superior, an adjudication acquitting the employee

of negligence will [bar] a subsequent suit against the employer"); see also Johnson v. Ram, 01-

13-00404-CV, 2014 WL 3697881, at *8 (Tex. App.-Houston [1st Dist.] July 24, 2014)

(refusing to reverse summary judgment dismissing doctor for vicarious liability because

plaintiffs couldn't recover against nurses as a matter of law.)

         In G & H Towing Co. v. Magee, 347 S. W.3d 293 (Tex. 2011 ), the plaintiffs filed a

negligent entrustment suit against an employee and a suit against his employer. Id. at 294-95.

After the employee obtained summary judgment in his favor, the trial court granted summary

judgment in favor of the employer even though the employer had not specifically sought it. Id.




SACMC's Motion For Summary Judgment as a Matter of Law                                      Page3

                                                210
at 295-296.    Finding that "an employer cannot be vicariously liable in tort when its agent or

employee has not engaged in tortious conduct," the Texas Supreme Court held that even where

summary judgment is not specifically sought and but nonetheless granted, "the error is harmless

when the omitted cause of action is precluded as a matter of law by other grounds raised in the

case." Id. at 298.

        This Court has already dismissed Brewer from this case under Texas Rules of Civil

Procedure rule 91 (a) and the Texas Citizens Participation Act. As such, it has held that Brewer's

actions or omissions were 1) constitutionally protected and/or 2) had "no basis in law or in fact."

In other words, Brewer, like the employee in G & H Towing, committed no tortious act.

Therefore, under plain and settled Texas law, SACMC cannot be held liable for Plaintiffs claims

as a matter of law.

                                           CONCLUSION

        WHEREFORE, PREMISES CONSIDERED, Defendant SACMC respectfully requests

that this grant this Motion for Summary Judgment and that judgment be entered dismissing all of

Plaintiffs claims against Defendant with prejudice, and for such other and further relief at law or

in equity as may be shown that Defendant is justly entitled to receive.




SACM C's Motion For Summary Judgment as a Matter of Law                                       Page4

                                                 211
                                                Respectfully submitted,

                                                         CARR MCGOLDRICK, LLP

                                                             f'Ld,.o
                                                J         . M.£ GOLDRICK
                                                State Bar No. 00797044
                                                JEFFREY F. WOOD
                                                State Bar No. 24025725
                                                J. CHEVES LIGON
                                                State Bar No. 24070147
                                                5910 N. Central Expy., Ste. 1700
                                                Premier Place
                                                Dallas, Texas 75206
                                                (214) 828-9200
                                                (214) 828-9229 (Facsimile)

                                                ATTORNEYS FOR DEFENDANT
                                                SAN ANGELO COMMUNITY MEDICAL
                                                CENTER




                                  CERTIFICATE OF SERVICE

       The undersigned hereby certifies that a copy of the foregoing pleading has been
forwarded to all counsel of record on this the 1st day of April, 2016, as follows:

       Via TexFile
       Paul Craig Laird II
       800 W. Airport Freeway
       Suite 880 LB 6015
       Irving, TX 75062



                                                JEFFREY F. WOOD




SACMC's Motion For Summary Judgment as a Matter of Law                             Page5

                                                212
EXHIBIT '' A''




      213
TAB NO. 10
                                                                                      Filed for Record
                                                                                      5/4/201610:49:17 AM
                                                                                      Sheri Woodfin, District Clerk
                                                                                      Tom Green County, Texas



                                    CAUSE NO. B-15-0285-C

STEVE F. MONTOYA, JR., M.D.                  §              IN THE DISTRICT COURT OF
WEST TEXAS RENAL CARE                        §
WEST TEXAS NEPHROLOGY                        §
                                             §
vs.                                          §              119th JUDICIAL DISTRICT
                                             §
SAN ANGELO COMMUNITY                         §
MEDICAL CENTER AND                           §
KIRK BREWER, M.D.                            §              TOM GREEN COUNTY, TEXAS

      PLAINTIFFS STEVE F. MONTOYA, JR., M.D., WEST TEXAS RENAL CARE AND
                   WEST TEXAS NEPHROLOGY'S RESPONSE TO
           DEFENDANT SAN ANGELO COMMUNITY MEDICAL CENT.ER'S
             MOTION FOR SUMMARY JUDGMENT AND OBJECTION AND
                          REQUEST FOR CONTINUANCE

    Plaintiffs, STEVE F. MONTOYA, JR., M.D., WEST TEXAS RENAL CARE AND
WEST TEXAS NEPHROLOGY ask the Court to deny Defendant SAN ANGELO
COMMUNITY MEDICAL CENTER'S Motion for Summary Judgment.

                                       INTRODUCTION

1.      The Plaintiffs are Steve F. Montoya, Jr., M.D., West Texas Renal Care and West Texas
Nephrology. The Plaintiffs sued the hospital based tipon causes of action that were approved by
the Texas Supreme Court in a case of a doctor suing the hospital where he had a medical
practice. The exact same causes of action were approved by the Texas Supreme Court in In Re
Memorial Hermann Hospital System. 464 S.W. 3d 6'86 (2015). The justices in Memorial
Hermailn case stated "We hold that Dr. Gomez's petition presents multiple viable anti-competent
actions;' Id at 713. Attached as Exhibit 1 is a certified copy of the pleading of Dr. Gomez from
the Memorial Hermann case that was specifically approved by as viable the Texas Supreme
Court causes of action. The causes of action approved by the Texas Supreme Court in Memorial
Hermann are:

        ( 1)   Business Disparagement
        (2)    Defamation
        (3)    Tortious Interference with Prospective Business Relations
        (4)    Improper Restraint of Trade under the Texas Fire Enterprises and Anti-Trust Act
               of 1983.

        Id. At 695-696

        The Petition of the Plaintiffs followed the approved Petition of Dr. Gomez.



PLAINTlFFS RESPONSE TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT-
PAGE l OF4
       The Plaintiffs ask the Court to take judicial notice of the Original Petition of the Plaintiffs
and the Amended Petitions on file to verify that the Plaintiffs are alleging the approved causes of
action of the Texas Supreme Court, by a physician and his entities in which he practices suing
the hospital where he practices medicine. This case is exactly the Memorial Hermann case
approved by the Texas Supreme Court. The Texas Supreme Court determined Memorial
Hermann in 2015 and has not changed its opinion in the year following the ruling.

       This Traditional Motion for Summary is nothing more than a thinly vailed attempt to get
around the untimely filing of the Motion to Dismiss under 9I(a) and the Anti-Slapp Motion.

       The finding of the Court concerning Dr. Brewer has no relevance to the causes of action
brought against San Angelo Community Medical Center. The causes of action against San
Angelo Community Medical Center are all separate and independent of Dr. Brewer.

        The Defendant San Angelo Community Medical Center does not even attach a single
factual affidavit or any affidavit in support of the Summary Judgment.

       The Motion for Summary Judgment is a untimely Motion to Dismiss that has no evidence
or proof attached.

       San Angelo Community Medical Center filed a Motion for Special Exceptions on August
14, 2015 the court granted the Special Exceptions on December 3, 2015. The Plaintiffs Petition
was amended to comply with the Court order.

       Since the Order of Dismissal of Defendant Dr. Brewer hearing the Plaintiffs have added
Anti-Trust violations concerning group boycott and violations of the EMTALA standards against
San Angelo Community Medical Center.

       The purpose of this lawsuit has nothing to do with the Defendants Constitutional Rights
to speak freely, associate freely and participate in governmental as permitted by law. These are
the requirements to meet in filing a Motion under the Anti-Slapp Statute Tex. C.P.R. C.§27. 005(b)
and as set out in Paulsen v. Yarrell 455 SW3d 192 (Tex.-App.-Houston [1 st Dist.] 2014, no pet.)
(quoting In Re Estate o,[Check 438 SW3d at 836).

      The Texas Supreme Court agreed that clear and specific evidence under the Texas Anti-
Slapp Statute Chapter 27 includes relevant circumstantial evidence. (In Re Lipsky, 2015
WLJ870073). The evidence of the Plaintiff meets the standard.

      The Defendant San Angelo Community Medical Center did not even join in Dr. Brewer's
Motion to Dismiss w1der 9l(a) or his Anti-Slapp motion.

                                    Request to Strike/Objection

       No Summary Judgment evidence is presented by the Defendant San Angelo Community
Medical Center. Respondents to the Motion for Summary Judgment object to the Motion
because there is no evidence attached to the Motion. The statements in the body of the argument

PLAINTIFFS RESPONSE TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT-
PAGE20F 4
are heresay and Respondents request the Court to strike those statements as defective and not
meeting the standard for Summary Judgment evidence. The statements in the argument are
conclusory and without factual basis as required by the Texas Rules of Civil Procedure (TRCP
166a(c)).

        The Respondents further object to the argument because it does not meet the standard set
forth for an affidavit in the Texas Supreme Court Radio Station KSCS v. Jennings 750 S.W.2d
760 (Tex. 1988). The Supreme Court held that affidavit for summary judgment failed to
establish that it was based on personal knowledge and was thus inadequate summary judgment
proof. The argument in the Motion is not a factual affidavit showing proof.

        The Plaintiff objects to the argument because it is not an affidavit which must state
facts and cannot merely recite legal conclusions. Brownlee v. Brownlee, 655 S.W. 2d 111, 112
(Tex. 1984). In this case the argument does not meet the KSCS or Brownlee standards.

            SUMMARY-JUDGMENT EVIDENCE PRESENTED BY PLAINTIFF

2.     To support the facts in this response, Plaintiffs offer the following summary-judgment
evidence attached to this response and incorporates the evidence into this response by reference.

       Exhibit 1: Certified copy of Pleading approved by the Texas Supreme Court as valid
causes of action in Memorial Hennann Hospital System.

        Exhibit 2: Is the affidavit of Steve F. Montoya, Jr., M.D. one of the Plaintiffs. In the
affidavit he states the facts and refutes the allegations for the dismissal under TRCP 9l(a) and
the Anti-Slapp allegations.

       Exhibit 3: Is the affidavit of Dr. Hunt that confirms the causes of actions and the facts of
the Anti-Trust actions of San Angelo Community Medical Center.

A.     Defendant did not disprove plaintiff's cause of action as a matter of law.

3.      A defendant is entitled to summary judgment on a plaintiff's cause of action if the
defendant can disprove at least one element of the cause of action as a matter of law. Sw. Elec.
Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); see Tello v. Bank One, N.A., 218 S.W.3d
109, 113 (Tex. App.-Houston [14th Dist.] 2007, no pet.). The Defendant has not disproved any
of Plaintiffs elements in their causes of action.

                                            PRAYER

4.      For these reasons, Plaintiffs ask the Court to deny Defendant's Motion for Summary
Judgment. Plaintiffs ask the Court to grant Plaintiffs objections so they will be preserved for
appeal.




PLAINTIFFS RESPONSE TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT-
PAGE 3 OF4
                                                    Respectfully Submitted

                                                    Paul Craig Laird II Law Firm, PLLC

                                                    Isl Paul Craig Laird II
                                                    By: Paul Craig Laird II
                                                    800 W. Airport Freeway
     .                                              Suite 880 LB 6015
                                                    Irving, TX 75062
                                                    972-554-0929
                                                    214-260-4935- fax
                                                    pcl880@aim.com
                                                    SBOT 11795420
                                                    Attorney for Plaintiffs


                                     CERTIFICATE OF SERVICE

      This is to certify that this Response was serviced via thee-filing system on the 4 th day of
May, 2016.

                                                    Isl Paul Craig Laird II




PLAINTIFFS RESPONSE TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT-
PAGE40F 4
12/26/2012 09:19:22 AM                   713-755-1451                        Page 2 / 18
                                                                               Filed 12 December 26 A9:19
                                                                               Chris Daniel - District Clerk
                                                                               Harris County
                                                                               FAX15376415


                                             Cause No. 2012-53962

           Ml GUEL A. GOMEZ, III, M.D. and              §     IN THE DISTRICT COURT OF
           MIGUEL A. GOMEZ, M.D., P.A.,                 §
                                                        §
                                      Plainlij]s,       §
                                                        §
           V.                                           §       HARRIS COUNTY, TEXAS
                                                        §
           MEMORIAL HERMANN HOSPITAL                    §
           SYSTEM; MEMORIAL HERMANN                     §
           PHYSICIAN NETWORK; MICHAEL P.                §
           MACRIS, M.D.; MICHAEL P. MACRIS,             §
           M.D., P.A.; ai1.d KEITH ALEXANDER,           §
                                                        §
                                      Defendants.       §       333fd JUD1CIAL DISTRICT


                PLAINTIFFS' FIRST AMENDED ORIGINAL PETITION AND JURY DEMAND

           To THE HONORABLE JUDGE HALBACH & OUR JURY OF HARRIS COUNTY CITIZENS:

                   Plaintiffs Miguel A. Gomez, III, M.D. and Miguel A. Gomez, M.D.., P.A.

           (together., "Dr. Gomez") file this First Amended Original Petition and Jury Demand

           against Defendants Memorial Hermann Hospital System ("Memorial Herma.1.m");

           Memorial Hermann Physician Network ("MHMD"); Michael P. Macris., M.D.; Michael

           P. Macris, M.D., P.A. (both together, "Dr. Macris"); and Keith Alexander (all together,

           "Defendants")., and wuuld respectfully state:

                                          DISCOVERY CONTROL PLAN

           1.1     Dr. Gomez intends to conduct discovery under Level 2 of Texas Rule of Civil

           Procedw·e 190.




                                 Sh,'b:+-2
12/26/2012 09:19:22 AM                   713-755-1451                           Page 3 / 18




                                                    PARTIES

           2.1   Miguel A. Gomez, III, M.D. ("Dr. Miguel Gomez) is a resident and citizen of

           Harris County, Texas.

           2.2   Miguel A. Gomez, M.D., P.A. ("Dr. Gomez P.A. 11 ) is a professional association

           organized under the laws of the State of Texas.

           2.3   Memorial Hermann Hospital System is a business entity organized under the laws

           of the State of Texas that controls and manages a number of hospitals, out-patient

           facilities, and other health care service centers throughout the Houston Metropolitan area,

           including Memorial Hermann Memorial City Medical Center. Memorial Hermann has

           appeared an.d answered herein.

           2.4    MHMD a/k/ a Memorial Hermann Physician Network is a business entity

           organized tmde.r the laws of the State of Te.xas that acts to deliver medical services on

           behalf of Memorial Hermann, and ha:; appeared and aru;wered he1·ein.

           2.5    Michael P. Macl'is, M.D. ("Dr. Michael Ma.eris") is a natural pei·son residing in

           Harris County, Te.xas, and has appeared and answered herein.

           2.6    Michael P. Macris, M.D., P.A. ("Dr. Macris P.A.") is a professional association

 -
 r--
           organized under the laws of the State of Texas and has appeared and answered herein.

           2.7    Keith Alexander ("Mr. Alexander") is a natural person employed at all relevant

           times as the Chief Executive Officer for Memorial Hermann Memorial City Medical

           Center, and has appeared and answered herein.




                                                        -2-
12/26/2012 09:19:22 AM                     713-755-1451                             Page 4 / 18




                                              VENUE & JURISDICTION

           3.1      Venue is pl'oper in Harris County unde1· Tex. Civ. Prac. & Rem. Code Section

           15.002(a)(1), as all or a ~-ubstantial pa11 of the events or om.issions giving rise to this legal

           action occuued in Hards County, Te.xas, an.d Defendants all reside :i11. Harris County,

           Texas.

           3.2      Dr. Gomez has incurred and sues for damages well in excess of $125,000, and

           jmisdiction is proper in this Court.

                        RESPONDEAT SUPERIOR/VICc\RIOUS LIABILITY/ CIVIL CONSPJRA.CY

           3.3      At all relevant times, Keith Alexander, as a p1·:i11cipal officer of Memorial

           Hermann, and other agents/ employees of Memorial Herma1m and MHMD working

           under his direction or in furtherance of unlawful and impl'Ope1· actions, was employed

           by and acting in furtherance of the business of Memorial Hermann and/MHMD. Keith

           Alex-antler is individually liable for his own illegal and improper actions. Memorial

           Hermann is also Jiable for the improper acts and omissions of its principal officer, Keith

           Alexander, as well as the other agents/ employees of Memorial Hermann, under the

           legal doctrines of respondeat superior and vicarious liability. MHMD is also liable for

           the improper acts and omissions of its agents/ employees of MHMD, under the legal

           doctrines of respondeat superior and vicarious liability.

           3.4      At all relevai.1t times., Dr. Macl'is, as a principal officer of Dr. Macris P.A., and

           other agents/ employees of Dr. Macris P.A. workh1.g under his direction or in

           furthernnce of his unlawful a11.d improper actions, was employed by and acting in

           furtherance of the bus:iness of Dr. Maeris P.A.. Dr. Mac1·is is individually liable for his

                                                           "\
                                                          -.:,-
12/26/2012 09:19:22 AM                    713-755-1451                               Page 5 / 18




           own illegal and improper actions. Dr. Macris P.A. is also liable for the improper acts

           and omissions of its principal officer, Dr. Macris , as well as the other agents/ employees

           of Dr. Macris, under the legal doctrines of respondeat superior and vicarious liability.

           3.5    Defendants       Memorial       Hermann       (acting   by        and     through   its

           agents/ employees/principal       officers);   MHMD      (acting    by     and   tluough   its

           agents/employees/principal officers) and Dr. Macris (acting by and through his

           age11ts /employees/principal office1·) acted tugethe1· to carry out the improper and

           illegal actions., and are therefore jointly and seve1·ally liable for civil conspiracy in

           carrying out their wrongful activities.

                          CoNDITTONS PRECEDENT & INAPPLICABIUTY OF AFFmMATIVE DEFENSES

           4.1       All conditions precedent to Dr. Gomez' right to recover have been performed or

           have occurred.

           4.2       To the extent necessary, Plaintiffs rely on and plead the discovery rule to any

           statute     of limitations   defense   asse1ted by     Defendants,       including fraudulent

           con.ceahnen.t.

                                              FACTUAL BACKGROUND


 -
 r---
 '0-
           5.1    Since retmning after advanced training to practice mediciii.e in his hometown of
  '<:I"

   ~
  ,::l.,
           Houston, Texas, Dr. Gomez worked hard to build a ~-tellar reputation fo1· quality patient
      I
  0
  0
  0
           care., teclmical excellence, and outstanding professionalism in cardiothoracic and
  IO
  r---
  ~
  IO       genernl surgery in the West Houston and Katy cummW1ity. Dr. Gomez cares about his
   i-:
   Cl)
 .c
   e::s    patients, his fellow medical professionals, and his conunwuty, and his practice
 :z
  C:
  Cl)

   e::s    expanded over a number of years with continuing referrals from medical professionals
   0
   0
  0
  -0
    Cl)
  t;::
                                                          -4-
  "€Cl)
  u
12/26/2012 09:19:22 AM                  713-755-1451                             Page 6 / 18




           aware of his well-deserved reputation for outstanding patient care.

           5.2   Dr. Gomez's skills and specialized abilities fm patients requiring cardio-thoracic

           and general surgeries, from "basic" open heart surgery to advanced robotic-assisted

           surgical procedw·es, were actively promoted for many years by Memorial Hermann as

           pa1t of its own marketing effo1ts in the West Houston and Katy medical community.

           Dr. Gomez's practice was further enhanced by his pioneering implementation of "off

           the pump" surgery a11d robotic-assisted cat·diothoracic proceduxes in the Houston

           medical community. "Off the pump surgery" eliminates the need fo1· the use of a heart-

           lung machine by-pass during surgery and greatly enli.anced patient care and outcomes.

           Robotic-assisted surgery, which typically eliminates the need to crack open the patient's

           sternum in favor of much smaller entry ports for the robotic surgical tools, likewise led

           to better outcomes and quicker recoveries for patients fortunate enough to come unde:r

           Dr. Gomez' care.

           5.3    The recommendation of the referring physicians to the patient directly impacts

           the choice of the specific surgeon entrm,ted with patient ca1·e. The su1·geon in turn

           determines, based upon the quality of the surgical and post-surgical equipment, staff,

           and facilities, the hospital in which the surgical care is delivered. The surgeon's

           decisions as tu whel'e tu perform his or her surgeries directly impact the profitability of

           the h08pitals in the specific conununity (in the West Houston and Katy community, the

           surgical market is primarily at Memorial Hermann Memorial City Medical Center and

           The Methodist We.st Houston Hospital). As a result, the ability to fairly compare the

           reputations of surgeons in a medical market community such as West Houston and

                                                       -5-
12/26/2012 09:19:22AM                    713-755-1451                           Page 7 / 18




          Katy affects patient choice and the continued availability of the highest quality patient

          care. Improperly manipulating comparative information and reputations of suxgeons in

          a medical market such as West Houston and Katy creates an improper distortion of free

          and informed patient choice and options for medical care.

          5.4   The appropriate way for any health ca1·e provider to attract patients in a

          competitive market is by actually providing and being known for providing the highest

          quality of care. The illegal and unjust way (11utti11g patients and their free choice in the

          market in jeopardy) is to malign., spread w1true 01" misleading ill.formation, or othe1wise

          smear the reputation of a highly qualified surgeon in the same medical community.

          5.5   With new management and operational changes at Memorial City Memorial

          Hermann, including the arrival of Mr. Alexander as CEO, Dr. Gomez became

          increasingly concerned about a decline in the quality of patient care at the hospital The

          decline in patient care arose from the understaffing of qualified nurses in the hospital's

          intensive care unit (ICU), general care units and the emergency room; the lack of

          consistent procedurnl safeguards fo1· monitoring patients; and the failure to update

          critical equipment. Memmial Hermann also began deliberate efforts to restrict surgical

          care for the most critically ill patients, pushing for abandonment of "salvage" cases (for

          example, eme1·gency surgery on patients in active cardiac arrest, able to be saved ill

          some but not all cfrcumstances by a qualified surgeon).       \I\Jhat this meant to patients

          most in need of a surgeon with Dr. Gomez' unique qualifications was the elimination of

          patient choice and poten.tially life-saving prncedw·es ill favor of potentially higher

          statistical ranking for Memorial Hermann as calculated by U. S. News and World

                                                        -6-
12/26/2012 09:19:22 AM                   713-755-1451                          Page 8 / 18




           Report.

           5.6   In response to D1·. Gomez repeatedly speaking out about these concerns, as well

           as the likelihood Dr. Gomez would move his surgeries to The Methodist Hospital-

           West Houston as the staffing and equipment dysfun.ctions contm.ued, Dr. Macris and

           Mr. Alexander, and others, joined in a calculated and deliberate scheme to destroy

           Dr. Gomez' reputation and ability to practice medicine in the West Houston and Katy

           conununity. Dr. Macris wanted to disadvantage a skilled competitor, and Memorial

           Hermann needed to avoid losing patients by working with D1·. MaCI"is in capturing the

           patients that would have otherwise been treated by Dr. Gomez at another facility.

           5.7    Quality patient care is the most important goal of any legitimate health care

           provider.     Under both fedel'al and state law, hospitals and their medical staff are

           required to follow st1·ict standards for peer review evaluation and monitoring. These

           peer review standards rely upon a consistent and well-developed process to ensure that

           favoritism, improper motives, a:t'ld manipulation for unjust purposes play no role.

           Memorial Hermann had such a process in place at all relevant timesr but Defendants

           acted to evade and avoid its safeguards while manipulating the rules for peer review

           and utilization review for their own wrongful purposes.

           5.8    In order to disa·edit Dr. Gomez and Cl'ush his ability to practice medicine in the

           We~t Houston and Katy comm.unity, Dr. Macri::; and Memorial Hermann began

           com.piling (and distorting) statistical data related to the mortality rates of Dr. Gomez's

           patients.   The manipulated data, which was reported using neither the generally

           accepted methodologies for proper peer review comparison nor basic scientific

                                                        -7-
12/26/2012 09:19:22 AM                   713-755-1451                          Page 9 I 18




           principles, was intended to create the appearance that patients were more likely to die

           in Dr. Gomez's care as compared to other surgeons at Memorial Hermann. At bottom,

           the statistical information compiled and manipulated by Dr. Macris and Memorial

           Hermann was geared to demonstrating a fa1sehood: that Dr. Gomez was an

           incompetent physician undersel'ving of his reputation and the trust his hard work had

           earned in the West Houston and Katy medical commwlity.

           5.9    Rather than comply with the medical peer review process and its safeguards

           against im.prnper :i1-ulue11ce, Defendants attempted to evade these well-e.stablished

           protocols and the standing medical peer review committee at the hospital. Defendants

           then set up an emergency "meeting" and presented Dr. Gomez with the option of either

           immediately suspending his practice or agreemg to active interventional monitoring

           under Defendants' supervision.      Both "options" would have effectively destroyed

           Dr. Gomez' reputati011. iJ.1 the medical community, severely curtailing patient choice, as

           well as the opportunity for these and future patients to benefit from Dr. Gomez'

           advanced abilities in cardiothoracic and surgical procedures.

           5.10   At the time Dr. Gomez was presented with these "options" by Defendants, he

 -
 ("-.
           was also told that he would not be able to review at any meaningful level the alleged

           data supporting the emergency action outside the usual peer review process (the data

           that ultimately proved to be improperly manipulated and without a basic medical and

           scientific grounding). Defendants also refused Dr. Gomez the opportunity to meet with

           or present any information. to Defendants and those acting with Defendants, and

           instead insisted that Dr. Gomez' quahty of care could not be evaluated by the

                                                        -8-
12/26/2012 09:19:22 AM                   713-755-1451                           Page 10 / 18




           established medical peer l'eview committee.

           5.11   Fortuitously, and despite Defendants' best efforts to continue the railroading of

           Dr. Gomez, the actual peer review committee at Memorial Hermann intervened to

           require Defendants to present their data, and other alleged reasons for attempting to

           block Dr. Gomez' continued practice at Memol'ial Hermann, to the peer 1·eview process.

           Notwithstanding Defendants' presentation of the manipulated patient data, the

           evaluation of the peer 1·eview committee exunernted D1·. Gomez. During the process,

           Defeudants were provided with clear and convincing evidence that the manipulated

           data used to" compare" Dr. Gomez could not be relied upon for any legitimate purpose.

           5.12   After completing its comprehensive evaluation, including comparison with

           D1·. Macris' own patient care outcome statistics, the pee1· review committee's rejection of

           Defendants' anti-competitive and unlawful abuse of the peer review process should

           have deterred Defendants from. their continued misconduct. Unfortunately, Defendants

           elected to instead continue a whisper campaign of selective and improper

           dissemination of both the manipulated data and othe1· misinformation within the

           medical community. The first indication Dr. Gomez received that Defendants' smear

           campaign had continued w1.abated was when the same type of manipulated and

           misleading data was presented by Dr. Macris on November 1, 2011 at a non-peer review

           meeting organized by MHMD i11. a publicly displayed "comparison", readily

           identifiable with Dr. Gomez and intended to be seen as such.       The circumstances and

           details uf this public defamation are set forth in greate1· detail in Paragraph 7.3 below,

           based on the infmmation available at this time.

                                                        -9-
12/26/2012 09:19:22 AM                      713-755-1451                         Page 11 / 18




           5.13   Mark Twain once noted that, "A lie can travel around the world before the truth

           can even finish putting on its pants." Defendants' illegal and anti-competitive acts

          unfairly cast Dr. Gomez' stellar reputation under a dark cloud. As could be anticipated,

           if not intended, Defendants' calculated wrongdoing also imposed substantial economic,

           emotional, and physical impacts upon Dr. Gomez. Facing continuing hal'assment and

           improper attempts to interfere with his practice at Memorial Hermann, Dr. Gomez

           resigued his pdvileges at Memorial Herma1m in May 2012. However, the loss to the

           community, and Dr. Gomez, from Defendants' misconduct remains 011goi11g and

           umemedied.

                                                  CAUSES OF A<.."TION

                                    FIRsT COUNT - BUSINESS DISP.ARAGEl\fENT

           6.1    Dr. Gomez 1·e-alleges and incorporates each allegation contained in Paragraphs

           1-5.13 of this Petition as if folly set forth herein.


           6.2    Defendants published disparaging w01·ds about Dr. Gomez' busin.ess and

           economic interests.      As set forth h1 Parngraph 7.3 below, and at other times tu be

           .furthe1· detailed upon necessary discovery, Defendants did and intended to harm Dr.
 f""'

 'o        Gomez' business interests.
 -
 0


           6.3    Defe11.dants pubhshed these disparaging words knowing they were false and

           with malice.

           6.4    Defendants published these disparaging words without privilege

                                           SECOND COUNT-0EF.AMATION

           7.1    Plaintiffs re-allege and incorporate each allegation contained in Pal'agraphs 1-6.4 of

                                                          -10-
12/26/2012 09:19:22 AM                        713-755-1451                     Page 12 / 18




           this Petition as if fully set for th herein.

          7.2        Both lies and half-truths presented in. a misleading manner are equally false.

          Defendants' statements and 111.isstatements, including alleged comparative data, were in

           proper context wholly false, libelous, and slanderous. Defendants knowingly,

          recklessly,, and maliciously spread falsehoods about Dr. Gomez, and Defendants had no

           right., privilege, or justification to make the statements.

           7.3       Specifically, at a Cardiovascular and Thoracic CPC Meeting arranged by MHMD

           on November 1., 2011, which is open and outside the peer review process,, D1·. Macris,

           individually and on behalf of MHMD, Memorial He1·mann, and Alexander, displayed

           and comm.wucated libelous statements and false data including, but not limited to, false

           data and statements regarding D1·. Gomez's practice and mortality rates of his patients,

           to an entire room filled with Dr. Gomez's professional colleagues, intending that it be

           thereafter widely dissetni.n.ated. Among those colleagues believed to be present at the

           meeting where Dr. Macris disse:rrrinated the false data and statements were the

           following:

                 •   Lee Colosimo, MD
 r---
 '-              •   Anthony &trera, MD
 --
  0

  Cl)

  f
 ,::i..
                 •   Donald Gibson, MD
     I
 0
 0
 0
 V')
 r---
                 •   Kuurosh Keyhani, MD
 N
 -.:t"
 V')

  i-:
  GJ
 .,Q
                 •   Kamal Khalil., MD
  e
 z::s            •   Javier Lafuente, MD
 cCl)

 e
 ::s
   t.>
   0
                 •   Robert McKuwen, MD
 Cl
 "'O
   Cl)                                                    -11-
 t+:
 .€
   Cl)
 u
12/26/2012 09:19:22 AM                        713-755-1451                          Page 13 / 18




                  •   Imran Mohiuddin, MD

                  •   Jaime Roman-Pavajeau, MD

                  •   Patti Peyma1U1

                  •   Ann Guercio

                  •   Tim Bevelacqua

                  •   Bymn Auze1me

                  •   Richard Alexander, MD

                  •   Michael Sha bot, MD

            These people in attendance at the November 1, 2011, meeting had the false, libelous,

            and slanderous material directly communicated to them by Dr. Macris, with the full

            intent of Defendants that it be further shared to attempt to harm Dr. Gomez' practice.

            7.4       As described above, the statements and 1·epresentations were defamiI1g to

            D1·. Gomez, both personally and in the conduct of his medical practice. Furthermore,

            the statements and 1·epl'esentations by Defendants were so egregious and obviously

            hurtful as to constitute libel and slander per se.

                       THIRD COUNT-TORTIOUS INTERFERENCE WITH PROSPECTIVE RELATIONS
 ........
 t...,
   0        8.1       Plaintiffs re-allege an.d incorporate each allegation conta:ined in Paragraphs 1-7.3
 -l
 N
   cu
            of this Pe titian as if fully set for th herein.
     I
 0
 0
 0
 ~          8.2.      Dr. Gomez had lon.gstanding ar1.d continuous relationships with referring
 ~
 "1
   i.:
   cu
 ,&I
            physicians in the West Houston and Katy medica] community, and these relationships
   s;:s
 z          directly led to patient referrals for surgical procedures. Due to these longstanding and
  l::
   cu
   s
   ::s
   (.)
    0
  0
 "'O
    cu
 i.:::
                                                               -12-
 ·-ecu
  u
12/26/2012 09:19:22 AM                      713-755-1451                       Page 14 / 18




          continuous relationships, there was a reasonable probability that Dr. Gomez would

          have been selected to perform surgical prncedures for these patients. In addition, there

          is a reasonable probability that Dr. Gomez would have entered into various other

          business relationships with thiJ:d persons or entities, but for Defendants' improper acts

          and omissions, as set forth herein.

          8.3     Defendants intentionally interfered with the relationships between Defendants

          and these persons and entities. This interference impacted al.'l.d caused economic loss in

          the past and future to Dr. Gomez.

                                FOURTH COUNT - IMPROPER RESIRAINI OF TRADE

          9.1    Plaintiffs re-allege and incorporate each allegation contained in Paragraphs 1-8.3

          of this Petition as if .fully set forth herein.

          9.2    Section 15.21 of the Texas Business and Commerce Cude, also kn.own as the

          Texas Free Ente.rprise and Antit1ust Act uf 1983, recognizes as illegal improper attempts

          to abuse the peer review process., as well as conspiracies tu limit patient choice by

          concerted illegal action such as engaged in by Defendants. Dr. Gomez therefore seeks

 ~        relief for this anti-competitive solely under the laws estabhshed by the State of Texas for

           this anti-competitive nusconduct affecting Texas' citizens residing in the West Houston

          and Katy communities.

          9.3    In the West Houston and Katy communities, Dr. Gomez was in competition with

          D1·. Macris, while Memorial Hermann was in competition with other surgical facilities,

           primarily including The Methodist Hospital West Houston. Defendants both derived


                                                            -13-
12/26/2012 09:19:22 AM                    713-755-1451                          Page 15 / 18




          illegal benefit, and patient choice was improperly limited in the West Houston and Katy

          community, by the concerted effort of Defendants to restrain competition in and

          monopolize surgical procedures in the West Houston and Katy communities.


          9.4    In furtherance of the combination and conspiracy, and with the pmpose and

          intent of excluding Dr. Gomez from the patient care market and destroying competition

          from Dr. Gomez (and i-esulting loss of patients at Memorial Hermann), Defendants not

          only attempted to curtail or limit Dr. Gomez' surgical procedures, but also defamed

          Dr. Gomez' skill and qualifications as a surgeon in the West Houston and Katy

          conununity.     The~e acts wel'e done with the specific intent to weaken or eliminate

          competition from Dr. Gomez, and because of the market dominance that would 1·esult

          had a dangerous probability uf success.


          9.5    Defendants' willful actions have also harmed and threatened the general public

          by inte1·feri11g with the urdedy practice of medicine in the conunw'lity, by reducing the

          number uf ~urgeons activd.y practicing in cardiuthOl'acic and general surgery in the

          community, and by depriving patients of the highest quality of medical care they would

          have been able to receive but for Defendants' concerted actions against Defendants.


          9.4    This concerted conduct was flagrant and willful, and was done for the specific

          purpose of harming Dr. Gomez, illegally and improperly taking Dr. Gomez' practice,

          and diverting it tu Dr. Macris and others p1·acti.cing solely at Memorial Hermaru1.

          9.5    The     acts   of   Defendants   constitute   illegal   monopolization,   attempted

          monopulizatiun, and/or conspiracy tu monopolize under applicable Texas law.


                                                      -14-
12/26/2012 09:19:22 AM                 713-755-1451                          Page 16 / 18




                                       RESULTING LEGAL DAMAGES

          10.1   Dr. Gomez is entitled to the actual damages re~mlting from Defendants'

          violations of the law. TI.1.ese damages include the consequential damages to Dr. Gomez'

          economic welfal'e; the mental anguish and physical ~~ering re~"Ulting from

          Defendants' conduct and the continued impact on Dr. Gomez; lost business reputation;

          attorneys' fees as allowed by law; and the other actual damages permitted by law.

          10.2   Dr. Gomez trusts the jury to evaluate the evidence-including documentation

          and expert and lay witness testimony-and to properly assess the dam.ages sustained

          by Dr. Gomez.     The law permits Defendants to demand that Plaintiff state the

          maximum amount of damages that Plaintiff will seek, and only in response to that

          demand, Plaintiff states that he expects to request the jury to award a maximum

          amount of $15,000.,000.00 in compensation for the damages asserted based on the must

          current available inform.ation. As additional information of the amonnt of the harm

          inflicted by Defendants becomes available, and as permitted by law, Dr. Gomez will

          amend this determination tu as best possible provide a fair estimate fur our juror's

          consideration.
 r-,,.

 'o       10.3   Defendants are also liable for statutory additional trebling and exemplary

          damages warranted by Defendants' malicious and egregious conduct.

                                                 PRAYER


                 WHEREFORE, PREMISES CONSIDERED., Dr. Gomez respectfully requests

          judgme.nt against Defendants fur actual damages in excess of the minimum

          jw·isdictional limits of this Court, pre- and post-judgment interest as allowed by law,

                                                   -15-
12/26/2012 09:19:22 AM                      713-755-1451                              Page 17 / 18




          costs of suit, and all other relief, at law or in equity, to which Plaintiffs may be justly

          entitled.


                                                                 Respectfully submitted,

                                                                 DOYLE RAIZNER LLP




                                                                 MICHAEL PATRICK DOYLE
                                                                 State Bar. No. 06095650
                                                                 LyondellBassell Tower
                                                                 1221 McKinney, Suite 4100
                                                                 Houston, Texas 77010
                                                                 Phone: 713.571.1146
                                                                 Fax: 713.571.1148
                                                                 mdoyle@doyleraizner.com

                                                                 ATTORNEYS FOR PLAINTIFFS

                                                  JURY DEMAND

                 Dr. Gomez hereby demands a trial by jury, a riglzL- enshrined in llze Constitutions of tlze
          United States of America and the State of Texas and preserved try the sacrifices of many. The
          necessan1 jury fee hllS been paid.




                                                        MICHAEL PATRICK DOYLE




                                                          -16-
12/26/2012 09:19:22 AM                    713-755-1451                           Page 18 / 18




                                          CERTIFICATE OF SERVICE

                   I, the undersigned atto1ney, do hereby ce1tify that a tiue and couect copy of the
            foregoing document was forwarded to the following counsel of record on this the 26 th
            day of December, 2012 via hand delivery, overnight courier, U.S. Mail, certified mail,
            return receipt request, and/ or facsilnile, pursuant to the Texas Rules of Civil Procedure:

                  Robert Swift
                  Jesse Coleman
                  Fulbright & Jaworski
                  1301 McKinney, Suite 5100
                  Houston, TX 77010

                   ATTORNEYS FOR DEFENDANTS




                                                      MICHAEL PATRICK DOYLE




 r-,.
 ct-.
   0
  r-,.
   Q)
   t)J)
   ('O
  ~
      I
  0
  0
  0
  tr)
  r-,.
  N
  ~
  tn
   i-:
   Q)
  ..c
   e::s
  :z
   'E
    Q)
    E
    ::s
      t.>
      0
  0
  "'O
      0                                                  -17-
  t;::
  ·e  0
   u
                  .......~;··H·A:,~····...
          ••• ~ ····•·•··· @' •...
         .                      '°"o"·..
            _~ .•u · · ····...."-.c~
         l ....,
        :o.:
        :o:                                       :z:
        :~~
        ~
         ..      :.,
                 ~ .
                     ..                         ..·::....,:
                                                      ""'<:.:.
                                                          .
            '•
              ..·.•.-~",.~. •..•········...~~,
                   : ; •.                   •
                                                   ..
                                                   ~
                                                  A._T

                                             ,-...··
                                                          ta




                          •······ .........s. ...··
                   ··... q "'(:(

     I, Chris Daniel, District Clerk of Harris
     County, Texas certify that this is a true and
     correct copy of the original record filed and or
     recorded in my office, electronically or hard
     copy, as it appears on this date.
     Witness my official hand and seal of office
     this May 3. 2016


     Certified Document Number:                                  54275000 Tota] Pages: 17




     Chris Daniel, DISTRICT CLERK
     HARRIS COUNTY, TEXAS




In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are valid. If there is a question regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com
STATE OF TEXAS      §
                    §                        AFFIDAVIT
COUNTY OF TOM GREEN §

       BEFORE ME the undersigned authority appeared Steve F. Montoya, Jr. M.D. and after
being duly sworn under oath stated.

      "My name is Steve F. Montoya, Jr. M.D. I am the Plaintiff in this case. I have
knowledge of all the facts of this affidavit as Plaintiff and all facts are within my personal
knowledge true and correct and that I was involved with facts stated.

       I have not used any patient name, except where authorized by the patient or their agent, to
avoid any HIP AA or privacy violation.

       1. I was admitted to practice nephrology at San Angelo Community Medical Center in
           1981.   I have full staff privileges for the practice of nephrology at San Angelo
           Community Medical Center. This case does not involve the rights of Defendant San
           Angelo Community Medical Center to speak freely, associate freely, and participate
           in government as permitted by law. The facts of the case are that I have full staff
           privileges to practice nephrology medicine at San Angelo Community Medical Center


       2. Part of my practice and obtaining patients is that the hospital emergency room uses a
           rotating system of specialists admitted in that practice to see patients in the hospital
           and emergency room pursuant to the EMTALA Medicare call list. When you are the
           named specialist you receive a call from the emergency room physician that a doctor
           with your specialty is needed for a patient. A big part of my practice was obtaining
           new patients and treating existing patients that came to the emergency room that
           needed a nephrologist. Since 1981 I have gotten new patients from the emergency
           room.


       3. Until 2007 I would receive 10-20 calls from the emergency room, per month to treat
           either new or existing patients for nephrology care at the San Angelo Community
           Medical Center. Since 2008 I have received only one call from the emergency room
           or a hospitalist for consultation as a nephrologist. A nephrologist treats patients with
           kidney problems and or disease. The one call I received was for treatment of a new
           patient or existing patient that suffered with kidney problems.
4. The one time call for a new patient is described below. On January 24, 2014 I was
   called by the San Angelo Community Medical Center emergency room physician on
   duty and the hospitalist Dr. Bartels. Dr. Bartels and the emergency room physician
   informed me that a patient was diagnosed with acute renal failure. I was informed my
   name was on the call board in the emergency room as nephrologist on call. Both of
   the above doctors asked me to consult concerning treatment for that patient. I gave
   my initial consult advice/orders of treatment to both doctors. This consultation call
   was to me at 9:38 p.m. I informed them I would come see the patient and then review
   the test results and determine any additional treatment for the patient. Attached as
   Exhibit A is a true and correct copy of the redacted hospital record, removing the
   name of the patient for HIPPA privacy, showing the facts on January 24, 2014.

5. On January 25, 2014 at 8:10 a.m. Kirk Brewer, M.D. took over the hospitalists care of
   the patient as his rotation as the hospitalist started. Then without ever seeing the
   patient or the chart Kirk Brewer, M.D. cancelled my consult and treatment by me and
   consulted another nephrologist. The nephrologist he brought in for consult is one that
   is in a group that Kirk Brewer, M.D. has a contract for paid services. Kirk Brewer,
   M.D. without seeing the patient, or chart changed the patient's doctor. This change of
   nephrologist was for Kirk Brewer, M.D.'s economic gain and caused me economic
   loss. Attached as Exhibit B is a true and correct copy of the redacted hospital record
   showing the facts on January 25, 2014.


6. In removing me as the nephrologist the hospital published a statement that I was not a
   competent nephrologist to treat patients coming to the San Angelo Community
   Medical Center emergency room. San Angelo Community Medical Center through
   its agents and representatives was aware that its actions would become known to the
   staff physicians of San Angelo Community Medical Center and that there was by
   conduct and a whisper campaign saying I (Steve F. Montoya, Jr. M.D.) should not be
   allowed to treat patients at San Angelo Community Medical Center.
7. The statements and actions of San Angelo Community Medical Center by and
   through its agents and representatives were published by conduct. The actions were
   referring to keep from treating my own patients and any new patient coming to the
   San Angelo Community Medical Center emergency room.                The statement(s) and
   actions were defamatory and caused me economic loss.


8. Until 2007 I would receive 10-20 calls from the emergency room per month to treat
   either new or existing patients at the San Angelo Community Medical Center. Since
   2008 I have only received one call from the emergency room or a hospitalist for
   consultation as a nephrologist, except for one time for treatment of a new or existing
   patient that suffered with kidney disease/problems. The lack of referrals caused
   substantial injury to the Plaintiffs and damaged their ability to compete, because the
   Plaintiffs depend on these referrals and consults to build and maintain the nephrology
   practice. A majority of patients who need kidney treatment/ suffer from kidney
   disease in a hospital later need continuing care for their kidneys or related problems;
   the most common of such continuing treatments is kidney dialysis. A typical kidney
   dialysis patient will need treatment for six years, and each such patient would mean
   revenue to the Plaintiffs practice of approximately $100,000 per year. I estimates that
   the Plaintiffs have lost at least I 00 long term kidney dialysis patients from 2007 to the
   present due to the Defendants' anticompetitive scheme to refuse to give me patient
   referrals or consults. I estimate that this lack of referrals has thus cost Plaintiffs
   $1,000,000 to $6,500,000 over that period of time.

9. The defamatory statements and actions are untrue. I am a competent and qualified
   nephrologist to treat patients at San Angelo Community Medical Center. If I were
   not a competent and qualified nephrologist I would have been removed from the staff
   of the hospital.


10. The actions of San Angelo Community Medical Center by and through its agents and
   representatives were intentional or done with negligence when San Angelo
   Community Medical Center knew that the statement was false and the actions would
   lead a reasonable prudent physician or patient knowing/believing of its defamatory
   potential. The actions interred with my ability to make a living as a nephrologist on
   staff at San Angelo Community Medical Center.


11. The rules at San Angelo Community Medical Center and of the staff of San Angelo
   Community Medical Center are to have a new patient in the emergency room or
   hospital that needs a specialist consultation assigned to the name off the rotating
   consultation list. The consultation list is kept by San Angelo Community Medical
   Center by and through its agents and representatives. By San Angelo Community
   Medical Center not following this procedure I did not receive any consultation
   requests from the emergency room or hospitalist at San Angelo Community Medical
   Center in 2008-present and one in 2014.


12. Attached to this affidavit as Exhibit C is the true and correct sworn statement that an
   existing patient of mine Mrs. Welch tried to see me in the emergency room of San
   Angelo Community Medical Center and that the emergency room would not call me
   to treat my existing patient Mrs. Welch is over 90 years of age and I have treated her
   for at least 20 years. These actions interfered with my right to treat my patient and to
   the patient's rights to pick her physician and to her rights under the patients' bill of
   rights (see attached Exhibit D) and the patients' dialysis bill of rights (see attached
   Exhibit E)


13. Another patient of mine, whose name is withheld per privacy rights, who is also over
   90 years of age and has been my patient for at least 10 years requested me when she
   went to the emergency room and she also was refused to see me. This action
   interfered with my right to treat my patient and to the patient's rights to pick her
   physician and to her rights under the patients' bill of rights (see attached Exhibit D)
   and the patients' dialysis bill of rights (see attached exhibit E)



14. A patient has the absolute right to be treated by their physician.   Attached as Exhibit
   F is a true and correct copy of the patient bill of rights posted at the San Angelo
   Community Medical Center. Attached as Exhibit E a true and correct copy of the
   dialysis patient bill of rights concerning care of a dialysis patient. Both of these
   patient bills of rights were violated by San Angelo Community Medical Center.


15. On January 25, 2014 at 8:10 a.m. Kirk Brewer, M.D. took over the hospitalists care of
   the patient referred in Exhibits A and B as his rotation as the hospitalist started. Then
   without ever seeing the patient or the chart Kirk Brewer, M.D. cancelled my consult
   and treatment and consulted another nephrologist.        I went to the call board and
   witnessed my name on call as the nephrologist on call on January 24 and 25, 2014.
   The San Angelo Community Medical Center is required to have an official EMTALA
   Medicare call list for on call physicians for the San Angelo Community Medical
   Center to take Medicare patients.       This is the list my name was on and was
   intentionally ignored. This also violates a patient's right to choose their physician.
   This list was followed until Dr. Brewer came to San Angelo Community Medical
   Center and took charge of hospitalists. The nephrologist he brought in for consult is
   one that is in a group that Kirk Brewer, M.D. has a contract for paid services. Dr.
   Brewer did not see the patient when he removed me as the treating nephrologist he
   issued the change via a telephone order (see Exhibit B). Kirk Brewer, M.D. without
   seeing the patient, or chart changed the patient's doctor. This change of nephrologist
   was for Kirk Brewer, M.D.'s economic gain and caused me economic loss.


16. By the actions of the hospitalists and emergency room physicians who are controlled
   by their supervisor or lead physician Kirk Brewer, M.D. through the above actions
   intentionally interfered with my practice of medicine at San Angelo Community
   Medical Center to keep me from receiving patients as required by the EMTALA
   Medicare call list.


17. The Defendants' anticompetitive conduct has harmed consumers and others who pay
   for nephrology services in the relevant market by increasing the costs of those
   services. This is demonstrated by the chart attached hereto as Exhibit G. Before Dr.
   Brewer's group of hospitalists became the attending physicians for all nephrology
          patients at SA.CMC, nephrology patients would be referred to nie (Dr. Montoya) who
          would serve as the attending physician for the patient. This arrangement avoided the
          "middle man" which now exists, as the hospitalists now usually serve as an additional
          charging entity between the patient and the nephrology specialist. Even if the
          hospitalists could do the same work as me or my partner used to provide, the patient
          (and/or insurance and taxpayer-funded Medicare/Medicaid) still faces increased cost
          for the same nephrology work, as the hospitalists charge more for physician services
          than I charge. The SACMC hospitalists charge at the "Comprehensive" Medicare
          allowable rate, which adds up to average charges of $506.85 per day. See Exhibit
          G. In approximately 2010, at the SACMC emergency room, Dr. Brewer
          explicitly told me that he and his group of hospitalists will always charge at the
          comprehensive rate, regardless of medical necessity, because those charges
          maximize revenue for Dr. Brewer and his group of hospitalists. · I, however,
          charge at the "Moderate" Medicare allowable rate, which adds up to an average cost
          of $346.13 per day. The difference between these charges is $160.72 per nephrology
          patient per average hospital stay. Over the course of a year, consumers/payors for
          nephrology services have thus paid thousands more for the hospitalists' physician and
          nephrology services than they would have paid for care from me who is a physician
          specialist in nephrology.
     All of the actions described in this affidavit are done by or for the Defendant San Angelo
Community Medical Center.

       Further affiant saith not."

       Signed this 4th day of May, 2016.




         Subscribed and sworn to me the undersigned notary by Steve F. Montoya, Jr., M.D. on
the 4th day of May, 2016.



                              ~9!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!~";'{
                                  ~··"'"~               DALILA CRUZ      ~
                                {~*: r}            MY COMMISSION EXPIRES               ~
                                 \l'"'•1Tf11~"'
                                       •:.,,•~..          May15,2016
                                                                             n )
              +-

                                                                                                                                                         I/llllllllllllllllll//l
                                                                                                                                                                ·1po·

               ALLERGTES & SENSrTIV TTIES                                          O No Known Allergies                    OlbO kg      HEIGH            0 in CJ cm
               DRUG                                                                   REACTION


              2.                                                                                           5.
              3.                                                                                           6.


                                        [ I           Another brand of drug iden tical in form and content may be dispensed unless checked

                                                              MPLETE THIS SECTION FOR PATIENTS WHO WILL DE SENT TO A PATIENT ROO:vf!
              D:11,.,.   Time.:                        Admit (o f~pnlien( Status                     UNIT (check one):
                                                0           lace in Obscrv:ition Status                                              CJ rcu   O OB/L&D
                                                0 Place in Outpatient Status


          r
      I
      I
      I
      I
      j
     I
     I
     I
     I~

  I
     I~[~
  I                      ~
  I
 I
 I
 I                                              ....__      ______
 I                                                                                                                       ---------
 I
 I
$/
                                                                                                                                                                                   J
      Physician Signature

 Physician Admission Orders                                                                           u
                                                                                                     -"'
                                                                                                      n
                                                                                                     _J
 NS-270 1-IOHMS                         10/10 (Rev. 07/12)                            Page I uf I
                          --      ··~   •   I       •' !.    :,:-~   1• ~· - - ,                     -~
                                                                     / \.
       r


                                                                                                                                                                                                   11111111111111 1111111!111
                                                                                                                                                                                                           '1PO'

       ALLERGIES & SENSITIVITIES                                         O No K nown Allergies                               WEIGHT:. _     _ _ 0 lb O kg                  HEIGHT:._ _ _ 0 in O cm
       DRUG                                                                       RE: ACTJON                                 DRUG                                                   f!EACTI ON




                                       J    Another brand of drug identical in form and content may be dispensed unless checked

                  j                         COMPLETE THIS SECTION FOR PATIENTS WHO WILL BE SENT TO A PATIENT ROOM!
                  ;
      Date        i Tim"      !        0 Admit to Inpatien t Status                                             UNIT (check one):
                              i                                                                                                                                      0 TCU         0 OB/L&D
                                       O Place in Observation Status                                            O Med/Surg             O Med-Telemetry
                             I
                              i




    _I     ,qt(.+                      O Place in Outpatient Status                                             O Other

                                                                                                                     s_c... ."7-       2-7?~ .· .
    f; TJJ-•·~~;,,;;;fi~1/-=--~
                              -~-~- =-
                                      l,DJe,,o r,_                        - ~--




    ~f.l~ ----·· 1~                           - --··--- - -,_;_ f                                        tJ_?At2_              ~           -
                                                                                                                                               =:-  ~ ~~:;,:r~½\..:.··_·.
                                                                                                                                                  - --          .     ~                   --·- ·-····


  lf/jj}t~Lf(r@=~/t;iy.H~tf;v~ /=-· ---
  '--·-·1···                 r-             --~---s                                                                                ·   -? ? J T ~ - · ... ..
 [ - [ •r ::: -;,                     ~ '/2.ci~/7J!~---         ·-f-;/.P-,'3/...P.-        u
                           . - --,-I l?Z2Z- .~:-.;~-=· -~·• 1d·/> f ·
 ...--i~! ,-L1.:_-,-- -~- -r-lJ.,,,~~ flo/,1- + Y ~ ; - ~ /'§=ttf",:,q,d.                                                                                                                                                       ,,
 c--('; ~:1'-~ftlt~--·- ~ --~=--~: -.:=::·                                                                                                            -_ .-·. ~:: -                         -
 I--· .. --·.1· ·· ·· ·- - i·· --··          i.-----
                                                               -...::_:i
                                                                    -+1--+-1-1- - -·- - - -- ··---··.- .... --··- ··-···- -· ··· ----·- ·--· ·- ···

L- --f··· -- -1--...:. - --- ------ -- ---. ---~----~-- ··--                                                                              --.. -- .. .. --
I __: - I - .. ··-- ---··- - ---·- ~-·· ·--·~-- ---·----- -
    _ .,..   [.        ·---- ···             ...                            ...       ..

[ : - _f_ - ../..                      . - ... .... -- --·---- ----------· - . .                                                                        - -·-   ·-·-·· ·-·--· -   .. ..

I_. . . L.-··· - ! - . -- . - -·-·- --- - -- - - - -··-----··... - ..
L. . ~ /--- -·-+--··. ... ·- ·-·· ------ ·-· · - -----· . ·--·-
L.--- ~-- - ~ ---------------- .·-----·-------
1                   I
    -... !I .-- . ·-1·-····· - _____._ -·-··· -···---·--· .. --·----···-- --·· ...
[· - -.••-• _L _ . __    I   ,--- ·-    -          ·· -    - - - - -- ·               ·---· - ·- - -- - - • -   ··




                                                                                                                                                                          Date                   Time
     Physician Signature

 Physician Ad.rri.issijln O.cders .:, ·::                                                                            .,,o.     SAN ANG ELO COMMUNITY MEDICAi. CTR

                                                                                                                     ..J
NS-270 l - lOHMS                       10/1 0             (Rev. 07/1 2)                    Page l o f I
                                                                                                                     c
                      , r I •, . • 'C>.11                                                                            .~
i2/16/2015 WED 13:23                     FAX 3             •4 28 4 West Texas Nephrology ......... Cl.   "'.AIRD ATTORNEY       ~003/003




         April 17, 2014




         r am Karen, Tims; thef daughter of Eunice Welch. I am writing to you on her behalf
         concerning her admission to SACMC on 11/28/2011. When asked by the ER admission
         staff, we replied that "Dr. Montoya" was her doctor. We were admitted to the
         hospitalists' service. We do not appreciate the fact that we did not have our physician
         of choice at the hospital. Please correct this to help maintain _quality patient care.



        Sincerely,

        Karen Tims                   ?.
        J("'au-11~
        State of  ~
        County of dm ~ J
                                                                                  ~

                                                                                               ~                          </:
                   .             .                 (


        Subscribed and sworn to before me this _/f__day of                                                   ,   c)-/J/




     e
     .,,,,,,   .
                        ROSl:MARYANDROS
                       My Commfssfon E,cplres
                          August19,2017
                               4 •   •   •••• , ........
                                                               {~
                                                              /\JJ 31:i!!t'ff~ v
                                                             { Notary Public
                                                                               0
Know Your Rights and Responsibilities.
You have the right to:

    •   Be treated in a dignified and respectful manner and to receive reasonable responses to reasonable
        requests for service.
    •   To effective communication that provides information in a manner you understand, in your
        preferred language with provisions of interpreting or translation services, at no cost, and in a
        manner that meets your needs in the event of vision, speech, hearing or cognitive impairments.
        Information should be provided in easy to understand terms that will allow you to formulate
        informed consent.
    •   Respect for your cultural and personal values, beliefs and preferences.
    •   Personal privacy, privacy of your health information and to receive a notice of the facility's privacy
        practices.
    •   Pain management.
    •   Accommodation for your religious and other spiritual services.
    •   To access, request amendment to and obtain information on disclosures of your health information in
        accordance with law and regulation within a reasonable time frame.
    •   To have a family membe1·, friend or other support individual to be present with you during the
        course of your stay, unless that person's presence infringes on others' rights, safety or is medically
        contraindicated.
    •   Care or services provided without discrimination based on age, race, ethnicity, religion, culture,
        language, physical or mental disability, socioeconomic status, sex, sexual orientation, and gender
        identity or expression.
    •   Participate in decisions about your care, including developing your treatment plan, discharge
        planning and having your family and personal physician promptly notified of your admission.
    •   Select providers of goods and services to be received after discharge.
    •   Refuse care, treatment or services in accordance with law and regulation and to leave the facility
        against advice of the physician.
    •   Have a surrogate decision-maker participate in care, treatment and services decisions when you are
        unable to make your own decisions.
    •   Receive information about the outcomes of your care, treatment and services, including
        unanticipated outcomes.
    •   Give or withhold informed consent when making decisions about your care, treatment and services.
    •   Receive information about benefits, risks, side effects to proposed care, treatment and services; the
        likelihood of achieving your goals and any potential problems that might occur during recuperation
        from proposed care, treatment and service and any reasonable alternatives to the care, treatment
        and services proposed.
    •   Give or withhold informed consent to recordings, filming or obtaining images of you for any purpose
        other than your care.
    •   Participate in or refuse to participate in research, investigation or clinical trials without jeopardizing
        your access to care and services unrelated to the research.
    •   Know the names of the practitioner who has primary responsibility for your care, treatment or
        services and the names of other practitioners providing your care.
    •   Formulate advance directives concerning care to be received at end-of-life and to have those advance
        directives honored to the extent of the facility's ability to do so in accordance with law and
         regulation. You also have the right to review or revise any advance directives.
    •   Be free from neglect; exploitation; and verbal, mental, physical and sexual abuse.
    •    An environment that is safe, preserves dignity and contributes to a positive self-image.
    •   Be free from any forms of restraint or seclusion used as a means of convenience, discipline, coercion
        or retaliation; and to have the least restrictive method of restraint or seclusion used only when
         necessary to ensure patient safety.
    •    Access protective and advocacy services and to receive a list of such groups upon your request.
    •   Receive the visitors whom you designate, including but not limited to a spouse, a domestic partner
        (including same-sex domestic partner), another family member, or a friend. You may deny or
        withdraw your consent to receive any visitor at any time. To the extent this facility places limitations
        or restrictions on visitation; you have the right to set any preference of order or priority for your
        visitors to satisfy those limitations or restrictions.
    •   Examine and receive an explanation of the bill for se.-vices, rega.-dless of the source of payment.

You have the responsibility to:

    •   Provide accurate and complete information concerning your present medical condition, past illnesses
        or hospitalization and any other matters concerning your health.
    •   Tell your caregivers if you do not completely understand your plan of care.
    •   Follow the caregivers' instructions.
    •   Follow all medical center policies and procedures while being considerate of the rights of other
        patients, medical center employees and medical center properties.

You also have the right to:

Lodge a concern with the state, whether you have used the hospital's grievance process or not. If you have
concerns regarding the quality of your care, coverage decisions or want to appeal a premature discharge,
contact the State Quality Improvement Organization (QIO).

Quality Improvement Organization
Phone: (216) 447-9604
Toll Free: (844) 430-9504
Fax: (844) 878-7921
Mail: KEPRO
5700 Lombardo Center Dr.
Suite 100
Seven Hills, OH 44131

If you have a Medicare complaint you may contact:

Texas Department of State Health Services
Phone: (512) 834-6700
Mail: Texas Department of State Health Services
P.O. Box 149347
Austin, TX 78714-9347

Regarding problem resolution, you have the right to:

Express your concerns about patient care and safety to facility personnel and/or management without being
subject to coercion, discrimination, reprisal or unreasonable interruption of care; and to be informed of the
resolution process for your concerns. If your concerns and questions cannot be resolved at this level, contact
the accrediting agency indicated below:

The Joint Commission
Phone: (800) 994-6610 Fax: (630) 792-5636
Email: COMPLAINT@JOINTCOMMISSION.ORG
Mail: Office of Quality Monitoring/the Joint Commission
One Renaissance Boulevard
Oakbrook Terrace, IL 60181
                                                                                                                                                   ~



                                                                                                                             ~
                                                                                                                                                   ~
                                                                                                                                 National Kidney   ~
                                                                                                                                                   ...
                                                                                                                                                   ~
                                                                                                                                 FoundationN
                                                                                                                                                   l~




Kidney Learning Systems (KLS)™



                                  Public Edue.111011

                                      AtfRhk                     ~
                        STAGE 1                         STAGE2                    STAGEl              STAGE4
                   Kidney 0,1tNUJI! with          Kidney Damage with·           Moderate a            Severe 1
                Normalort KldntyFunctJ.On        Mild 1 Kidniy Function        Kidney Function    Kidney Function
              ------------------------- -------------------~
                                                   T
                                                            -              ---------------- -----------
                                                                                     T                   T

           GFR 130
                           '                90                            60                     30                 15   0

                Light-shaded boxes indica te the scope of content i n thi s KLS resource.
                GFR c Glomerulor Filtration Rote; T = Kidney Transplant; D = Dialysis




                Notional Kidney Foundation
                30 East 33 rd Street
                N ew York, NY 10016
                800.622.9010

www.kidney.org

© 2003 Notional Kidney Foundation, Inc
2006 Edillon. All rights 1eserved.
     ''/:,,).\,'\
          ~~-\ \.-.                    ~~·-~,· .·•:'~·'\.'-,,,~:\
                     -~· ' -\:·\~; ~'" "'-"
                  ,, ~ - '\'' -;~'
                                                       -.\.'-~~~,~:\"\\\'~-
                                                                  ~~.\~ • \ \~:~,
                                                                               \";!\ __
~·         ) . . t,\ .. . '· ,,. . :.,: -"i•     .   ,...... \   "".1 •   :.


~      -        . PATIENrs; '.Rfghts
                    ~:Quali)y,~or~           -!~
                    • informaliori
                    a Individual. Treatment
                   - • Privacy and Confidentiality
                     • Services Without Discrimination
                     • Treat.men! Options
                     • Kidney Transplantation
                      a Home Core
                      • Self-Core Treatment
                      Iii Emergency         Core
                      11     Dielary Counseling
                                                                                                                        Your Rights
                       a Social Work Services
                                                                                          1. Quality Care
                       111   Facility Management
                                                                                          You hove the right lo:
                       u Formal Complaint Process
                       a Refusal and Advance Directives                                    11    Receive high-quality heoltr core that meets recognized
                                                                                                 professional goals.
                        mMedical Consultation
                                                                                           EJ    Be port of the health core team, along w ith a social worker,
                        • Research Programs
                                                                                                 nurse, doctor and dietitian.
                           Ill   Treatment Costs
                                                                                           Ill   Expect thol staff members in trai ning will be directly
                      PATIENTS' Responsibilities                                                 supervised .
                             ra Be Informed
                             Ill!   Pion and Follow a Treatment Program                   2 . Information

                             11     Be on Time                                            You hove the right lo:

                              ca Follow Facility Policies                                  11    Receive information from your nephrologisl (kidney doctor) in
                                                                                                 words that you con understand . This should include informa·
                                                                                                 lion about your medical conditions, treatment choices, lest
                                                                                                 results and possible problems . If this information cannal be
                                                                                                 given to you directly, the doctor should speak to your fami ly
                                                                                                 or the person acting on your behalf.
 e Be informed about current d ia lysis treatments for kidney
       d isease .
 &1    Be informed of the process of d io lyzer re-use and your
       o ptions .
 a Receive a complete review of a ny test results and treatment
   by your doctor or a member o f the health core team .
 • Be informed of a ny possible side effects of medications
   you ore toking .

3 . Ind ividual Treatment
You have the right to:
 m Be treated w ith d ignity, respect and consideration .

 a Suggest a cha nge in the type of treatment.
                                                                          6. Treatment Options
 m Expect your kidney doctor and other members of your
                                                                          You hove the right to:
       health core team to listen to you when you suggest
       changes in your dialysis treatment.                                 1:1    Receive a full explanation of all treatment options for kidney dis-
                                                                                  ease, including their advantages and disadvantages.
 e E;pect that treatment w ill be tailored to your individual
   health needs .                                                         7. Kidney Tra nspla ntotion
 e     Expect that the patient-to-staff ratio at your facility conforms   You hove the right to:
       to state regulations .
                                                                           111    Receive o full explanation of the kidney transplant process
4. Privacy and Confidentiality                                                    including all transplant options .
You hove the right to:                                                     111    Select the transplant center at which you desire to hove a
                                                                                  transplant evaluation ofter consultation with the nephrologist.
  mi   Expect privacy when receiving medical care.

  • Expect examinations and discussions about your care to                8. Home Core
    be held in private.                                                   You hove the right to:
  11   Expect that your personal med ical information wi ll be kept        111    Be informed of new advances in home care and hove the
       confidential.                                                              opportunity to make a change. to that treatment option.

5 . Se rvices W ithout Di scrim ina tion
                                                                           111    Receive educational materials about new procedures.
You hove the right to:                                                      m Suggest changes in your home core treatment.

  rs Expect medical care without regard to your race, color,                Ill   Receive fo llow-up care by dietary, social work and nursing
       gender, sexual prefe rence, religion or notional o rigin.                  services.
i. Self-Care Treatment                                                     11. Dietary Co~nseling
{ou hove the righl to:                                                     You have the ri ght lo:

 • Receive information oboul dia lysis facilities tha t offer               &J      Receive counseling from a qua lified dietitia n according to
   self.core.                                                                       federal and state law.
                                                                            a Receive nutritional educational material and inslruction .
10. Emergency Care                                                     1
{ou hove the right to:                                                      • Receive core and counseling on a regular basis.
                                                                       J
 Ill   Receive emergency medical core w ithout unnecessary                 12. Social Work Services
       d elay.
                                                                           You hove lhe right to:
 • Be in formed by lhe dialysis fa c ility about their emergency
                                                                            ra Receive coµnseling from a qualified social w orker
   pio n in ca se of a disaster (e .g ., snow storm , fi re, loss of
                                                                                    accordi ng lo federal and sla te lo w .
   power).
                                                                             i:i    Receive on eva luation and follow-up core, including a
 • Be info rmed of lhe facility's pion o f action in case of
                                                                                    vocational rehabilitation review.
   medical emergencies.
                                                                            a Receive referrals to community services when needed.

                                                                           13. Facility Management
                                                                           You hove the ri~ht to:
                                                                             1:1    Expect the dialysis facility to employ skilled slaff and
                                                                                    provide safe, clean, comfortable and professional
                                                                                    surround ings.
                                                                             ii     Expect the facility to make every effort lo make you com-
                                                                                    fortable and give you your trea tment on lime, according to
                                                                                    a schedule that meets special needs whenever possible.
                                                                             a Expecl lhe facility to monitor the quality      of   treatment and
                                                                               equipment according to regulations.

                                                                           14. Formal Complaint Process
                                                                           You have the right lo:



                                                                       l     111    M ake a co,mplaint to your fa cil ity manogemenl and
                                                                                    request tho! they try to resolve a p roblem .
                                                                              • Ask and be inslrucled on your dialysis faci lity's grievance
                                                                                process.
                                                                              lli   File a complaint with the End-Stage Renal Disease
                                                                                    Network in the region, and/or your state health
                                                                                    deportment_in on attempt to resolve a problem.
 5. Refusal, Advance Directives and End-of-Life Core             18. Treatment Costs

ou hove the right to:                                            You hove the right to:

 • Make decisions about your health care based on informa-        • Receive a full explanation of all charges by the facility and
   tion given to you by your kidney doctor.                         doctor.

 • Complete on advance directive stating your wishes.             • Be informed about your financial responsibilities otter
                                                                    Medicare or Medicaid and/ or olher health core insurance
 • Be informed by your kidney doctor of the possible results        coverage.
   of refusing drugs, freofrnenfs or procedures.
                                                                  a Obtain assistance wi th completing insurance forms.
 • Be informed of how the facility cares for those regarding
   end-of-life needs.                                             • Gel information about how you con pay your bill and
                                                                    about programs available lo help you.
 • Refuse any drugs, treatments or procedures offered to you .
 a Indicate your refusal in writing.                                                  Your Responsibilities
 • Accept full responsibility for !he medical outcomes of your   1. Be Informed
   refusal.                                                      II is your responsibility lo:
16. Medical Consultation                                          • Learn as much as you con
{ou hove the right to:                                              about your kidney disease and
                                                                    how if is treated.
 • Request consultation with another doctor for any kidney- or
   non-kidney-related medical problem.                            • Talk lo your health care learn
                                                                    about your concerns regarding
 • Know that payment for consultation may not be covered            your treatment.
   under Medicare or other health care coverage, and you
   may be responsible for payment .                              2. Pion and Follow a Treatment
                                                                       Program
17. Research Program s
                                                                 It is your responsibility lo:
You hove the right to:
                                                                  a    Supply all information about your heallh needed to pion
 • Receive a full explanation of any research program in               and carry out o lreatment program that will give you !he
   which you may be able to participate.                               best results.
 • Know !hot the study will not be conducted without your              Find out about the other services and referrals that ore
   informed consent or that of the person acting on your
                                                                       recommended by your health care team.
   behalf.
 • Refuse or withdraw from the research study of any time.       3. Be On Time
                                                                 It is your responsibility to:
                                                                  m Make every efforl to be on time for your scheduled dialysis.

                                                                  11   Tell the dialysis focilily ahead of time if you are unable to
                                                                       attend your next treatment dote.
 11    Underslond !hot your treatment lime rnoy be shortened if you
       arrive late.

L Follow Focility Policies
· is your responsibility to:
 m Follow the facility policies and procedures that hove been
       developed to provide safety and quality   of co re   to all patients .

5. Be Considerate
t is your responsibility to:
 I!!   Treat other patients and staff members w ith respect, dignity
       and consideration.
 a Never lhreoten olhers, acl in a violent manner or cause any
       physical harm.                                                            Many thanks to the following orgonizo!i,Qns for their role in assisting with the
                                                                                     developm~nt of the Dialysis Patienisf•sill of Rights and Responsibilities
6. Fulfill Financial Obligations                                                American Society of                        NKF Council on Renal Nutrition
                                                                                Tronsplontation                            NKF Council of Nephrology
II is your responsibility lo:
                                                                                Centers for Medicare &                        Nurses and Technicians
                                                                                  Medicaid Services                        NKF Patient & Family Council
 • Make every effort lo pay your bills for core from the dialysis
                                                                                ESRD Network 4                                Executive Committee
   facility and doctor(s).                                                      ESRD Network 7                             Notional Renal Administrators
                                                                                ESRD Network 8                                Association
 Ill   Obtain Medicare Porl B coverage or co-insurance through a                ESRD Network I 3                           Renal Physicians A5sociotion
       private carrier.                                                         ESRD Network l 8                           TronsPocific Renal Network
                                                                                NKF Council of Nephrolagy
 11    Inform the facility business office of oil health insurance pro-           Socio! Workers
       grams and policies from which you receive direct poymenl for
       services in the lreotment of k.idney disease.
 111   Pay the dialysis facilily and doctor when you receive payments
       from your heollh insurance company or medical policies .
                                       DR MONTOYA'S CHARGES MODERATE
                                                                                                           MEDICARE
)ESCRIPTION                                   REQUIREMENTS                                   CPT           ALLOWABLE RATE
                                              1. A comprehensive history 2. A
                                              comprehensive exam 3. MedJcal Decision
,NPATIENT ADMISSION MODERATE                  making of moderate complexity                        99222 $           134.m
                                              1. An expanded problem focused Interval
                                              history 2. An expanded problem focused
                                              examination 3. Medical decision making of
INPATIENT FOLLOW UP MODERATE                  moderate complexity                                  99232 $             70.76
                                              1. An expanded problem focused interval
                                              history 2. An expanded problem focused
            I                                 examination 3. Medical decision making of
11N~'"' a'IENT FOLLOW UP MODERATE             moderate complexity                                  99232 $             70.76
                                              1. Final Exam 2. Oiscusslon of hospital stay
                                              3. Instructions for continuing care to all
                                              relevant caregivers 4. preparation of
                                              discharge records s. Presciptlons and
INPATIENT DISCHARGE less than 30 min          Referral forms                                       99238 $·           70.58
                                                                                                           $         346.13
                                       HOSPITALIST CHARGES COMPREHENSIVE
                                                                                                           MEDICARE
DESCRIPTION                                                                                  CPT           ALLOWABLE RATE
                                              1. A comprehensive history 2. A
                                              comprehensive exam 3. Medical Decision
INPATIENT ADMISSION COMPREHENSIVE             making of high complexity                            99223 $.          198.47
                                              1. A detailed interval history 2. A detailed
    I
        I
                                              examination 3. Medical decision making of
INPATIENT FOLLOW UP COMPREHENSIVE             high complexity                                      99233   $         101.94
                                              ~. A detailed Interval history 2. A det21led
                                              examination 3. Medical decision making of
INPATIENT FOLLOW UP COMPREHENSIVE             high complexity                                      99233 $           101.94
                                              1. Final Exam 2. Discussion of hospital stay
                                              3. Instructions for continuing care to all
                                              relevant caregivers 4. preparation of
                                              discharge records 5. Presciptlons and
INPATIENT DISCHARGE more than 30 min          Referral forms                                       99239   $         104.50
                                                                                                           $         506.85

                                              TOTAL DIFFERENCE                                             $         (160.72}
 Difference between Dr. Montoya, Independent physician billing and hospital stay        $      100      .t
 for average of 4 days for an In-patient at SACMC with Dr. Montoya, billing
 medicine at the moderate level compared to Dr. Brewer and the HospitaHst billing
 comprehensive.
 Multiply average admissions per day-4                                                  $      400
 Multiply for one year                                                                  $   146,000
 Multiply for total number of Independent physicians affected by Hospitalists'          $ 1,460,000
  pattern of restraint - 10% (10}                                                   I
  Multiply by number of years - 8 for one hospital                                  ; $ 11,680,000
, Multiply by 200 Hospitals                                                             $ 2as,600,ooo
 STATE OP TEXAS                    §
                                   §               AFFIDAVIT
COUNTY OF TOM GREEN §

      ·BEFORE ME 'the undersigned authority appeared John Hunt, M.D. and after bejng duly
sworn under oath stat~d.          ·

          "My name is Johll Hunt, M.D. I have knowledge of all the faots of this affidavit and all
facts are within my p16rsonal knowledge tru.e and cor.reot and that I was involved. with. facts
stated.

         &er was on the staff of San Angelo Community Medical Center when Dr. Brewer was
brought in to head up the ho$pit.alist service and emergency room of San Angelo_ Commwuty
Medical Center. San Angelo Commttnlty Medical Ci:nter had a call list in the emergency x-oom.
that listed on-call physicians to be r2fcr:rred patients. This list was kept pursuant to Medicare
regulations. The H$t was to be followed pursuant to the Medicare regulation:s unless the patient
requested a different physicjan. I learned of the whisper campaign agalttst Dr. Montoya that he
was- not to be r~.fetted patients by the emergency room and hos,italist. Dr, Montoya is an
indepellde.nt pbysioian. Until Pi'. Brewer came to San Angelo Community Medical Center the
Independent physicians would receivci referrals ftom.hospitallsts. Dr. .Brewer lead a campaign to
not use independent physicians. Independent physicians are physicians that do work for or are
affiliated with the hospital owned groups.

          Further affia.nt saith not."
          Sjgned this 11th day of January, 2016.




        Subscribed and sworn to me the undersigned notary by John Hunt M.D. on 111.e 11 111 day
of January~ 2016.

                                                      ·Qfxttit ci&inr~1)
                                                       No·     Publio
.cu vc::aup~ .uetaus                                                                     Page I of2


 Print this page


 Case# B150285C - STEVE F. MONTOYA, MD,WEST TEXAS
 RENAL CARE,WEST TEXAS NEPHROLOGY vs. SAN
 ANGELO COMMUNITY MEDICAL CENTER,KIRK
 BREWER, MD (Woodward, Ben)
 Case Information
 Location                      Tom Green County - I 19th District Court
 Date Filed                    05/04/2016 10:49: 17 AM
 Case Number                   B150285C
                               STEVE F. MONTOYA, MD,WEST TEXAS RENAL CARE,WEST
 Case Description              TEXAS NEPHROLOGY vs. SAN ANGELO COMMUNITY
                               MEDICAL CENTER,KIRK BREWER, MD
 Assigned to Judge             Woodward, Ben
 Attorney                      PAUL LAIRD II
 Firm Name                     Paul Craig Laird II T,aw Firm, PLLC
 Filed By                      PAUL LAIRD II
 Filer Type                    Not Applicable
 Fees
 Convenience Fee               $0.00
 Total Court Case Fees         $0.00
 Total Court Party Fees        $0.00
 Total Court Filing Fees       $0.00
 Total Court Service Fees      $0.00
 Total Filing & Service Fees   $0.00
 Total Service Tax Fees        $0.00
 Total Provider Service Fees   $0.00
 Total Provider Tax Fees       $0.00
 Grand Total                   $0.00
 Payment
 Account Name                   Paul C. Laird
 Transaction Amount             $0.00
 Transaction Response
 Transaction ID                 16869047
 Order#                         010449256-0

  Answer/Response
  Filing Type                                     EFi leAndServe
  Filing Code                                     Answer/Response



https://efile. txcourts.gov/EnvelopeDetails.aspx?enve 1opeguid=de9ba9e7-adcb-44ab-aa62-56... 5/4/2016
J..:,11 VClUjJt::   Ut:taus                                                              Page 2 of2


  Filing Description                               response to motion for summary judggment
  Reference Number                                 b-15-0285-c
  Comments
  Status                                           Submitting
  Fees
  Court Fee                                        $0.00
  Service Fee                                      $0.00
  Documents
                               Response to Defendants Motion for Summary
  Lead Document                                                                         [Original]
                               Judgment..pdf



  eService Details

  Name/Email                     Firm              Service Type    Status Served Date/Time
                                                                                 Opened
  Paul Craig Laird II                                              Not
                                                   EScrve                 No     Not Opened
  pcl880@aim.com                                                   Sent
  Paul Craig Laird II              Ashley & Laird, EScrve          Not
                                                                          No     Not Opened
  pcl880@aim.com                   L.C.                            Sent
                    .              Jones Carr
  James J McGoldnck                M G ldr' k                      Not
  .           ldrick@"~cmfiinn.com LLP
                                     C O   IC '    EServe                 No     Not Opened
  James.mcgo                                                       Sent

                              Jones Carr
  Jeffrey F Wood                                                   Not
                              McGoldrick,          EScrve                 No     Not Opened
  jeff. wood@jcmfirm.com                                           Sent
                              LLP
   Cheves Ligon               Jones Carr                           Not
                                                   EScrve                 No     Not Opened
   cheves.ligon@jcmfinn.com   McGoldrick                           Sent
                              McMahon
   Robert B Wagstaff          Surovik Suttle,                      Not
                                                   EScrve                 No     Not Opened
   rwagstaff@mcmahonlawtx.com PC                                   Sent

                                 McMahon
   Amanda Livezey                                                  Not
                                 Surovik Suttle,   EScrve                 No     Not Opened
   alivezey@mcmahonlawtx.com                                       Sent
                                 P.C.




https://efile.txcourts.gov/EnvelopeDetails.aspx?enveI opeguid=de9ba9e7-adcb-44ab-aa62-56... 5/4/2016
TAB NO. 11
                                     CAUSE NO. B150285C

STEVE F. MONTOYA, M.D.                            §        IN THE DISTRICT COURT OF
WEST TEXAS RENAL CARE and                         §
WESTTEXASNEPHROLOGY                               §
                                                  §
                                                  §
       Plaintiffs,                                §
                                                  §
v.                                                §        119th JUDICIAL DISTRICT
                                                  §
SAN ANGELO COMMUNITY                              §
MEDICAL CENTER and KIRK                           §
BREWER, M.D.                                      §
     Defendants.                                  §        TOM GREEN COUNTY, TEXAS


     ORDER ON DEFENDANT SAN ANGELO COMMUNITY MEDICAL CENTER'S
                   MOTION FOR SUMMARY JUDGMENT

       On this 17th day of May              , 2016, came on to be heard Defendant San Angelo

Community Medical Center's Motion For Summary Judgment, and the Court having considered

same, is of the opinion that said motion is well taken and should be granted.

       IT IS, THEREFORE, ORDERED, ADJUDGED, and DECREED that Plaintiffs' claims

in their entirety be dismissed with prejudice.

       SIGNED this _ _ Efa-y efMay 17, 2016            , 2Q1'3 •



                                            .,?34½J~~
                                                 JUDGE PRESIDING




ORDER ON DEFENDANT SAN ANGELO COMMUNITY MEDICAL CENTER'S MOTION TO DISMISS            Page I


                                                 336
    TAB NO. 12




(
 - - - - - - -----·- - ··----·---------------·----·-- ---
                                                                                  Filed for Record
                                                                                  5/4/2016 1:05:44 PM
                                                                                  Sheri Woodfin, District Clerk
                                                                                  Tom Green County, Texas



                                 CAUSE NO. B-15-0285-C


STEVE F. MONTOYA, JR., M.D.                §         IN THE DISTRICT COURT OF
WESTTEXASRENALCARE                         §
WESTTEXASNEPHROLOGY                        §
                                           §
VS.                                        §         119th JUDICIAL DISTRICT
                                           §
SAN ANGELO COMMUNITY                       §
MEDICAL CENTER AND                         §
KIRK BREWER, M.D.                          §         TOM GREEN COUNTY, TEXAS

                      RESPONSE TO MOTION TO DISMISS OF
                   SAN ANGELO COMMUNITY MEDICAL CENTER

      COMES NOW, Dr. Montoya, Plaintiff and responds to the Motion to Dismiss by
Defendant San Angelo Community Medical Center.

      1. The Motion to Dismiss is based upon Texas Anti-Slapp Statute, Chapter 27 Actions
         invoking the exercise of certain Constitutional Rights.

      2. No affidavits are attached to the Motion.

      3. Attached as Exhibit 2 hereto is the affidavit of Dr. Montoya as evidence in support of
         his response.

      4. The purpose of this lawsuit has nothing to do with the Defendants Constitutional
         Rights to speak freely, associate freely and participate in governmental as permitted
         by law. These are the requirements to meet in filing a Motion under the Anti-Slapp
         Statute Tex.C.P.R.C.§27.005(b) and as set out in Paulsen v. Yarrell 455 SW3d 192
         (Tex.-App.-Houston [1 st Dist.] 2014, no pet.) (quoting In Re Estate of Check 438
         SW3d at 836).

      5. The evidence presented by Dr. Montoya is that this case deals with the same standard
         as setforth in the recent Texas Supreme Court of In Re Memorial Herman Hospital et
         al 464 SW3d 686, 695-696 2015. This case is on concerning anti-trust, business
         damages and a campaign to stop competition by Dr. Montoya at San Angelo
         Community Medical Center. Attached as Exhibit 1 is a certified copy of the pleading
         approved by the Texas Supreme Court.

      6. The Texas Supreme Court agreed that clear and specific evidence under the Texas
         Statute includes relevant circumstantial evidence. (In Re Lipsky, 2015 Wll 870073).
         This evidence of Dr. Montoya meets the standard.


RESPONSE TO MOTION TO DISMISS OF SAN ANGELO COMMUNITY MEDICAL CENTER-
PAGE I OF7

                                           225
                  ---        -    -    ..   -------·-·---·----·-------~---·-----···---        .




       7. In this case the evidence is both direct, actual and circwnstantial. The pleadings and
          affidavit of Dr. Montoya prove that his case is real and not a continually protected
          case.

       8. Attached to this Response is the affidavit of John Hunt, M.D. (Exhibit 3) attached
          hereto as if setforth at length that proves the whisper campaign and that the call list is
          a requirement of Medicare rules and that the actions of San Angelo Community
          Medical Center were to hurt Dr. Montoya economically and professionally.

       9. Plaintiffs Business Disparagement and Defamation Claims Should Not Be
          Dismissed

         "The TCPA's purpose is to identify and summarily dispose of lawsuits designed only to
chill First Amendment rights, not to dismiss meritorious lawsuits." In re Lipsky, 460 S.W.3d 579,
589 (Tex. 2015) (emphasis added), citing Tex. Civ. Prac. & Rem. Code § 27.002 (balancing "the
constitutional rights of persons to petition, speak freely, associate freely, and otherwise
participate in government to the maximum extent permitted by law" against "the rights of a
person to file meritorious lawsuits for demonstrable injury"). The TCPA is not applicable to this
case, as Plaintiffs causes of action are primarly concerned with Defendants' anticompetitive
actions, and injury to competition in the relevant markets of nephrology services and referrals for
nephrology services in San Angelo, Texas. As Plaintiff's Fifth Amended Petition makes clear,
the conspiracy which Defendants perpetrated to deprive Dr. Montoya of referrals began in 2007.
Although Plaintiff details some specific defamations which occurred in 2014, those defamations
are merely representative of the anticompetitive scheme to which Dr. Montoya was being
subjected. Defendants' group boycott and monopolization/attempted monopolization of the
relevant market began much earlier, so even if Plaintiff's pleadings do not set forth a prima facie
case of defamation and business disparagement, Plaintiff's antitrust claims should not be
dismissed because they are not based on those instances of defamation.

        In any event, Plaintiff has set forth a prima facie case of defamation and business
disparagement by clear and specific evidence in his affidavit and Fifth Amended Petition. The
"clear and specific" evidence which is required to pass a TCP A challenge can be contained in the
plaintiff's pleadings or in affidavits. In re Lipsky, 460 S.W.3d 579, 591 (Tex. 2015). In
determining if the "clear and specific evidence" standard is met, the court must view the
pleadings in the light most favorable to the party opposing the TCPA motion. Sloat v. Rathbun,
2015 WL 6830927, at *3 (Tex.App.-Austin, 2015) ("we view the pleadings in the light most
favorable to [the non-movant]; i.e., favoring the conclusion that her claims are not predicated on
protected expression."); see also Cheniere Energy, Inc. v. Lotfl, 449 S.W.3d 210, 214
(Tex.App.-Houston [1st Dist.] 2014, no pet.) (reviewing pleadings and evidence in light most
favorable to non-movant)



RESPONSE TO MOTION TO DISMISS OF SAN ANGELO COMMUNITY MEDICAL CENTER-
PAGE20F 7

                                               226
        A prima facie standard generally requires only the "minimum quantum of evidence
necessary to support a rational inference that the allegation of fact is true." In re Lipsky, 460
S.W.3d 579, 590 (Tex. 2015), quoting In re E.1 DuPont de Nemours & Co., 136 S.W.3d 218,
223 (Tex. 2004) (per curiam). "In a defamation case that implicates the TCPA, pleadings and
evidence that establishes the facts of when, where, and what was said, the defamatory nature of
the statements, and how they damaged the plaintiff should be sufficient to resist a TCP A motion
to dismiss." In re Lipsky, 460 S.W.3d 579,591 (Tex. 2015).

        Plaintiff has plainly satisfied this requirement. As shown in Plaintiff's Fifth Amended
Petition, Dr. Brewer's defamation was published by conduct when he removed Dr. Montoya
from consulting with a patient on January 25, 2014 at 8:10 a.m. The defamation was published
to the hospitalist overseeing that patient, and the nephrologists who was eventually called in to
consult as a replacement for Dr. Montoya. The defamation was eventually spread to all
hospitalists and emergency room doctors at SACMC. Dr. Montoya has also set forth a detailed
calculation and ·explanation of the damages he has suffered as a result of the Defendants' scheme
to deprive him of nephrology referrals and consults. See Plaintifr s Fifth Amended Petition,
paragraph 5. With regard to the January 2014 defamation, Plaintiff has established his prima
facie case with clear and specific evidence.

       10.     Even if Plaintifrs Defamations Are Dismissed, Plaintiff's Remaining Claims
               Are Not Subject to the TCPA

        The TCPA is clearly meant to apply to individual claims, not to an entire lawsuit when
allegedly defamatory lawsuits are only important to certain claims. Breach of contract claims,
for example, would not ordinarily be dismissed merely because a Plaintiff failed to plead a prima
facie defamation case under the TCPA.

        The TCPA's definition of "legal action" makes this clear. The TCPA states that "If a
legal action is based on, relates to, or is in response to a party's exercise of the right of free
speech, right to petition, or right of association, that party may file a motion to dismiss the legal
action." Tex. Civ. Prac. & Rem. Code§ 27.003(a).

The TCPA then defines a "Legal action" as "a lawsuit, cause of action, petition, complaint,
cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or
equitable relief." Tex. Civ. Prac. & Rem. Code§ 27.003(a).
        The only cases which have interpreted the TCAP's definition of "legal action" have held
that the term "is broad and evidences a legislative intent to treat any claim by any party on an
individual and separate basis." Hicks v. Group & Pension Administrators, Inc., 473 S.W.3d 518,
529 (Tex.App.-Corpus Christi, 2015), citing Better Business Bureau of Metropolitan Dallas, Inc.
v. Ward, 401 S.W.3d 440, 443 (Tex.App.-Dallas 2013, pet. denied). In Hicks, the court
individually examined each of the claims which allegedly violated the TCPA and dismissed two

RESPONSE TO MOTION TO DISMISS OF SAN ANGELO COMMUNITY MEDICAL CENTER-
PAGE 3 OF7

                                               227
of those claims while refusing to dismiss two other claims because the TCP A challenge to those
claims was not timely filed.

         Writing a concurrence in the case of Serafine v. Blunt, 466 S.W.3d 352, 393-94
(Tex.App.-Austin 2015, no pet.), Justice Pemberton wrote that where a "'legal action' is based
on, relates to, or is in response to" (whatever that phrase may mean) both expression protected by
the Act and other unprotected activity, the "legal action" is subject to dismissal only to the extent
it 'is based on, relates to, or is in response to' the protected conduct, as opposed to being subject
to dismissal in its entirety" Id. at 394. Justice Pemberton then pointed to this result finds support
in several features of the the TCPA's text, and he explained as follows:

       The first is that the TCPA defines "legal action"-that which is subject to dismissal-
       both expansively and variously, as previously noted, referring to everything from an
       entire action or proceeding to particular facts that underlie a claim or cause of action.
       This nomenclature contemplates the drawing of distinctions not only between claims, but
       also between factual theories, as here.

       Adding further support to this construction are the dual overarching purposes that the
       Legislature has declared the TCPA is to serve: "encourage and safeguard the
       constitutional rights of persons to petition, speak freely, associate freely, and otherwise
       participate in government to the maximum extent permitted by law, at the same time,
       protect the rights of a person to file meritorious lawsuits for demonstrable injury."
       Neither purpose is advanced by holding that a claim is wholly subject to dismissal merely
       because it partly "is based on, relates to, or is in response to" protected expression under
       the Act. Nor would these purposes be served by the converse holding that the claim is
       wholly beyond the Act merely it "is based on, relates to, or is in response to" some
       unprotected activity.

Id. at 393-394. The Serafine court later cited to "longstanding principles of Texas jurisprudence"
counsel against "a construction of the TCPA that would mandate presumptive dismissal of an
entire claim merely because its factual underpinnings might include even one allegation that
implicates the Act's protections." Id. at 394.

Several cases have applied the TCPA as Justice Pemberton interprets it. For example, in Tervita,
UC v. Sutterfield, 482 S.W.3d 280, 286-87 (Tex.App.-Dallas 2015, pet. denied), the court
dismissed some of the plaintiffs claims based on conduct that occurred during a TOI-WC
hearing, but refused to dismiss other claims because the movant had not shown "by a
preponderance of the evidence, that [plaintiffs] allegations were based on [defendant's] exercise
of its right to petition or its right of association." Id. at 287. The Tervita court thus held that the
TCPA did not apply to the plaintiffs "employment discrimination based on (1) creating a hostile
work environment, (2) representing that he was "not entitled to pursue benefits" under the Texas
Worker's Compensation Act, and (3) wrongful discharge." Id. at 286; see also Serafine v. Blunt,
RESPONSE TO MOTION TO DISMISS OF SAN ANGELO COMMUNITY MEDICAL CENTER-
PAGE 4 OF 7

                                                228
466 S.W.3d 352, 359-60 (Tex.App.-Austin 2015) ("to the extent that the Blunts' tortious-
interference counterclaim is based in part on Serafine's alleged threats made outside the context
of the lawsuit, Serafine has not satisfied her initial burden to show that these portions of the
Blunts' counterclaims are subject to the [TCPA].")

        The same result occurred in Sloat v. Rathbun, 2015 WL 6830927, at *6-7 (Tex.App.-
Austin 2015, pet. filed). In that case, the court rejected the defendants' argument that plaintiffs
entire suit was based on conduct protected under the TCP A, when the plaintiff had also plead
facts which showed stalking and other tortious conduct. The court rejected application of the
TCPA and stated as follows:

       [Plaintiffs claims] are garden-variety tort claims based on specific conduct that the
       [Defendants] have failed to demonstrate, by a preponderance of the evidence, implicates
       the exercise of their rights of "free speech,"" association," or "to petition."

Sloat v. Rathbun, 2015 WL 6830927, at *8 (Tex.App.-Austin 2015, pet. filed). The Sloat court
held that the defendant had failed to demonstrate, by a "preponderance of the evidence," that the
plaintiffs causes of action for intentional infliction of emotional distress, invasion of privacy by
intrusion on seclusion and by public disclosure of private facts, and tortious interference with
contract were "based on, related to, or in response to" defendants' "exercise of their right of free
speech, right to petition, or right of association." Id. at *9. The defendants in Sloat had thus
failed to establish thatthe TCPA applied to the case. Id.

       11. Plaintiff Has Valid Causes of Action for Antitrust Violations

        As noted above, Plaintiffs defamation claims are examples of how Defendant enforced
its anticompetitive scheme to deprive Dr. Montoya of nephrology referrals, but Plaintiff's
antitrust claims are primarily based on the illegal scheme itself and not individual defamatory
statements. Plaintiff has plainly set forth valid antitrust claims as they largely mirror the causes
of action which the Supreme Court held to be valid in In re Memorial Hermann Hospital System,
464 S.W.3d 686 (Tex. 2015).

        The causes of action in this case, along with the underlying facts, are very similar to the
causes of action approved by the Supreme Court in In re Memorial Hermann Hospital. In both
cases a doctor who has privileges at a hospital has alleged that the defendants conspired to
prevent him from obtaining patient referrals. In re Memorial Hermann Hospital at p. 711;
Plaintiff 's Fifth Amended Petition, paragraphs 6.1, 6.2, 6.5. In both cases, the alleged
conspirators consist of the hospital itself, a physician practice group, and individual doctors who
practice at the hospital In re Memorial Hermann Hospital at p. 695; Plaintiff's Fifth Amended
Petition. In both cases, the doctors have explained how other doctors how other doctors are a
primary source of referrals, and that these referrals are required for a doctor to be able to
compete. In re Memorial Hermann Hospital at p. 711; Fifth Amended Petition, pp. 6.2, 6.3, 6.8-
RESPONSE TO MOTION TO DISMISS OF SAN ANGELO COMMUNITY MEDICAL CENTER-
PAGES OF 7

                                              229
6.11. Both lawsuits allege that the defendants intentionally interfered with the plaintiff's
longstanding practice for obtaining referrals from other doctors in the community, and that the
defendants' acts constituted a "concerted effort ... to restrain competition in and monopolize"
the relevant market. In re Memorial Hermann Hospital at p. 708; Plaintiffs Fifth Amended
Petition, paragraphs 6.1, 6.2, 6.5, 7.1, 12.7. Both lawsuits allege that the defendants impugned
the reputation of the plaintiff doctors through a covert whisper campaign which convinced other
doctors not to refer patients to the plaintiff doctors. In re Memorial Hermann Hospital at p. 696;
Plaintiff's Fifth Amended Petition, paragraph 6.15-6.17. Both lawsuits allege that the plaintiff
doctor lost a substantial amount of business from referrals due to the anticompetitive conspiracy
against them. In re Memorial Hermann Hospital at p. 711 (plaintiff alleged that "referral patterns
changed" so that he was no longer the "number one" physician, and that following the conduct
at issue, another physician received more referrals); Plaintiff's Fifth Amended Petition,
paragraph 7.11 and 13.3-13.4 (Dr. Montoya received 10-20 calls per month from the SACMC
emergency room to treat new or existing patients before the anticompetitive conspiracy began,
but he has only received a single call from emergency room for a new patient since then; all
referrals now go to the nephrologists at WTMA). In both this case and in In re Memorial
Hermann Hospital, the plaintiff doctor alleges that the defendants' acts "constitute illegal
monopolization, attempted monopolization, and/or conspiracy to monopolize under Texas law."
in In re Memorial Hermann Hospital, ; Plaintifrs Fifth Amended Petition, paragraph 12.7.
Plaintiff has plainly stated a valid cause of action under the antitrust laws of Texas which is in no
way designed only to chill Defendants' First Amendment rights. "" In re Lipsky, 460 S.W.3d
579, 589 (Tex. 2015) ("The TCPA's purpose is to identify and summarily dispose of lawsuits
designed only to chill First Amendment rights, not to dismiss meritorious lawsuits.") (emphasis
added). Defendant's Motion to Dismiss under the TCPA must accordingly be denied.

        Plaintiff requests attorney fees and costs be awarded for having to respond to this
frivolous motion.


                                                      Respectfully Submitted
                                                      Paul Craig Laird II Law Firm, PLLC
                                                      Isl Paul Craig Laird II
                                                      By: Paul Craig Laird II
                                                      800 W. Airport Freeway
                                                      Suite 880 LB 6015
                                                      Irving, TX 75062
                                                      972-554-0929
                                                      214-260-4935- fax
                                                      pcl880@aim.com
                                                      SBOT 11795420
                                                      Attorney for Plaintiff

RESPONSE TO MOTION TO DISMISS OF SAN ANGELO COMMUNITY MEDICAL CENTER-
PAGE60F 7

                                              230
                                 CERTIFICATE OF SERVICE

      This is to certify that this Response was serviced via thee-filing system on the 4th day of
May, 2016.

                                                   /s/ Paul Craig Laird II




RESPONSE TO MOTION TO DISMISS OF SAN ANGELO COMMUNITY MEDICAL CENTER-
PAGE70F 7

                                             231
                                                                   ·---·-·------··-·   ..




12/26/2012 09:19:22 AM                  713-755-1451                         Page 2 / 18
                                                                               Filed 12 December 26 A9:19
                                                                               Chris Daniel - District Clerk
                                                                               Harris County
                                                                               FAX15376415


                                            Cause No. 2012-53962

          MIGUEL A. GOMEZ, III, M.D. and               §     IN THE DISTRICT COURT OF
          MIGUEL A. GOMEZ, M.D., P.A.,                 §
                                                       §
                                     Plainlij)s,       §
                                                       §
          V.                                           §       HARRIS COUNTY, TEXAS
                                                       §
          MEMORIAL HERMANN HOSPITAL                    §
          SYSTEM;MEMORIALHERMANN                       §
          PHYSICIAN NETWORK; MICHAEL P.                §
          MA~, M!D.; MICHAEL P. MACRIS,               §
          M.D., P.A.; and KEITH ALEXANDER,            §
                                                      §
                                     Defendants.      §        3331-d JUDICIAL Dlb-YRICT


                PLAINTIFFS' FIRST AMENDED ORIGINAL PETmoN AND JURY DEMAND

          To nm HONORABLE JUDGE HALBACH & OUR JURY OF HARRIS COUNTY CmZENS:

                  Plaintiffs Miguel A. Gomez, III, M.D. and Miguel A. Gomez, M.D., P.A.

          (together, "Dr. Gomez") file this First Amended ?riginal Petition and Jury Demand

          against Defendants Memorial He1·nuum Hospital System { Memorial Hermam1");
                                                                        11




          Memorial Hermann Physician Network ("MHMD"); Michael P. Macris, M.D.; Michael

          P. Macris, M.D., P.A. (both together, "Dr. Macris"); and Keith Alexander (all together,

          "Defendants"), and would respectfully ~1:ate:

                                        DISCOVERY CONTROL PL4.N

          1.1     Dr. Gomez intends to conduct discovery under Level 2 of Texas Rule of Civil

          Procedure 19.0.




                               s11,·1:,,·-11232
                ~ - - - - - - - · ..---------·····   ·-··- -··· ........   -··•·   ··---------··-·   -----



12/26/2012 09:19:22 AM                   713-755-1451                                                        Page 3 / 18




                                                   PARTIES

          2.1    Miguel A. Gomez, III, M.D. ("Dl'. Miguel Gomez) is a resident and citizen of

          Harris County, Texas.

          2.2    Miguel A. Gomez, M.D., P.A. ("Dr. Gumez P.A.") is a professional assuciatiun

          organized under the laws of the State of Texas.

          2.3    Memorial Hermann Hospital System is a business entity organized under the laws

          of the Sta~e of T~~as that controls and manages a number of hospitals, out-:patient

          facilities, and other health care service centers tluoughout the Houston Metropolitan area,

          including Memorial Hermann Memorial City Medical Center. Memorial Hermann has

          appeared and answered herein.

          2.4   MHMD a/k/ a Memorial Hermann Physician Network is a business entity

          organized w1der the laws of the State of Texas that acts to deliver medical services un

          behalf of Memorial Hermann, and has appeared and answered herein.

          2.5   Michael P. Maci-is, M.D. {"Dr. Michael Macris") is a natw·al pei·son residing in

          Harris Cmmty, Texas, and has appeared and aru,"Wered herein.

          2;6   Michael P. Macris; M.D., P.A. ("Dr. Macris P.A.") is a professiorial association

          organized under the laws of the State of Texas and has appeared and answered herein.

          2.7   Keith Alexander ("Mr. Alexander") is a natural person employed at all relevant

          times as the Chief Executive Officer for Memorial Hermann Memorial City Medical

          Center, and has appeared and answered herein.




                                                       -2-


                                                     233
- - - - · · · ······-·-·--·---------

   12/26/2012 09:19:22 AM                      713-755-1451                            Page4 / 18




                                                  VENUE & JURISDICTION

             3.1      Venue is propel' in Harris County under Tex. Civ. Prac. & Rem. Code Section

             15.002(a)(l ), as all or a ~;ubstantial part of the events or omissions giving rise to this legal

             action occtU'red in Harris Cowi.ty, Texas, and Defendants all reside in Harris County,

             Texas.

             3.2      Dr. Gomez has incurred and sues for damages well in excess of $125,000, and

            . jmisdiction is pro.per h,t this Court.

                          RE.sPONDEAT SUPERIOR/VICARIOUS LUBILin' / CIVIL CONSPIRACY

             3.3      At all relevant times, Keith Alexander, as a pl'i11.cipal officer of Memorial

             Hermann, and other agents/ employees of Memorial Hermaim and MHMD working

             under his direction or in furtherance of wtlawful and imprope1· actions, was employed

             by and acting in .furtherance of the business of Memorial Hermann and/MHMD. Keith

             Alexander is individually liable for his own illegal and improper actions. Memorial

             Hermann is also liable for the improper acts and omissions of its principal officer, Keith

             Alexander, as well as the other agents/ employees of Memorial Hermann, under the

             legal doctrines of respondeat superior and vicarious liability. MHMD is also liable for

             the improper acts and omissions of its agents/ employees of MHMD, under the legal

             doctrines of respondeat superior and vicarious liability.

            3.4       At all relevant times, Dr. Macris, as a principal officer of Dr. Macris P.A., and

            other agents/employees of Dr. Macris P.A. working under his direction or in

            furtherance of his wtlawful and hnproper actions, was employed by and acting in

            furthe1·ance of the business of Dr. Macris P.A.. Dr. Mac1·is is individually liable for his

                                                          -3-

                                                          234
     ....   ········---~-------


12/26/2012 09:19:22 AM                          713-755-1451                             Page 5 / 18




              own illegal and improper actio11S. Dr. Macris P.A. is also liable for the improper acts

              and omissions of its principal officer, Dr. Macris, as well as the other agents/ employees

              of Dr. Macris, m1der the legal doctrines of respondeat superior and vicarious liability.

              3.5   Defendants      Memorial         Hermann        (acting   by        and    through    its

              agents/employees/principal         officers);    MHMD     (acting    by    and    through   its

              agents/ employees/ principal officers) and Dr. Macris (acting by and through his

             agents/employees/principal offi~er) acted together tu carry out the improper and

             illegal actiot'U:I, and are therefore joi11tly and severally liable for civil co1'U:lpiracy in

             carrying out their wrongful activities.

                         . CoNDmoNS PRECEDENT & INAPPUCABIUTY OF AFFIRMATIVE DEFENSES

             4.1    All conditions precedent to Dr. Gomez' right to recover have been performed or

             have occurred.

             4.2    To the extent nece8sary, Plaintiffs rely on and plead the discovery rule to any

             statute of limitations     defense      asserted by Defendants, including fraudulent

             conceahne11t.

                                            .    FACTUAL BACI<GROUND


             5.1    Since returning after advanced training to practice medicine in his hometown of

             Houston, Texas, Dr. Gomez worked hard to build a stellar reputation for quality patient

             care, technical excellence, and outstanding professionalism in cardiothoracic and

             genernl surgery in the West Houston and Katy community. Dr. Gomez cares about his

             patients, his fellow medical professionals, and his conununity, and his practice

             expanded over a number of years with continuing referrals from medical professionals

                                                              -4-


                                                              235
12/26/2012 09:19:22 AM                   713-755-1451                            Page 6 / 18




          aware of his well-dese1·ved reputation for outstanding patient care.

          5.2    Dr. Gomez's skills and specialized abilities for patients requiring cardio-thoracic

                                         11
          and general surgeries, from basic" open heart surgery to advanced robotic-assisted

          surgical procedures, were actively promoted for many years by Memorial He1·mann as

          part of its own marketing efforts in the West Houston and Katy medical community.

          Dr. Gomez's practice was further enhanced by his pioneering implementation of "off

          the pump" surgel'y and robotic-assisted ca1·diuthoracic procedures in. the Houston .

          medical community. "Off the pump surgery" eliminates the need for the U8e of a heart-

          lung machine by-pass during surgery and gi·eatly enhanced patient care and outcomes.

          Robotfo-assisted s~gery, which typically eliminates the need to crack open the patient's

          sternum in favor of much smaller entry ports for the robotic surgical tools, likewise led

          to better outcomes and quicker recoveries for patients for~te enough to come under

          Dr. Gomez' care.

          5.3   The recommendation of the referring physicians to the patient directly impacts

          the choice of the specific smgeon entrw,1:ed with patient care. The sw·geon in turn

          determines, based upon the quality of the surgical and post-surgical equipment, staff,

         and facilities, the hospital in which the surgical care is delivered. The surgeon's

          decisions as to whei·e to perform his or her surgeries directly impact the profitability of

         the hospitals in the specific conununity (in the West Houston and Katy community, the

         surgical market is primarily at Memorial Hem1ann Memorial City Medical Center and

         The Methodist West Houston Huspital). As a result, the ability tu fairly compare the

         reputations of surgeons in a medical market community such as West Houston and

                                                     -5-

                                                    236
12/26/2012 09:19:22 AM                   713-755-1451                           Page 7 / 18




          Katy affects patient choice and the co11tinued availability of the highest quality patient

          care. Improperly manipulating comparative information and reputations of surgeons in

          a medical market such as West Houston and Katy creates an improper distortion of free

          and informed patient choice and options for medical care.

          5.4    The appropriate way for any health ca1·e provider to attract patients in a

          competitive market is by actually providing and being known for providing the highest

          quality uf care. The illegal ,md unjust way (putti11g patients and their free choice hl the

          market h1 jeopardy) is to malign, spread w,true 01· misleading information, or othe1wise

          smear the reputation of a highly qualified surgeon in the same medical community.

          5.5    With new management and operational changes at Memorial City Memorial

          Hermann, including the arrival of Mr. Alexander as CEO, Dr. Gomez became

          increasingly concerned about a decline in the quality of patient care at the hospital. The

          decline in patient care arose from the understaffing of qualified nurses in the hospital's

          intensive care unit (ICU), general care units and the emergency room; the lack of

          consistent procedural safeguards for monitoring patients; and the failure to update

          critical equipment. Memorial Hermann also began deliberate efforts to restrict surgical

          care for the most critically ill patients, pushing for abandonment of "salvage" cases (for

          example, eme1·gency surgery on patients in active cardiac arrest, able tu be saved in

         some but not all circull'lbiances by a qualified surgeon).   What this meant to patients

         most in need of a surgeon with Dr. Gomez' unique qualifications was the elimination of

         patient choice and potentially life-saving procedw·es in favor uf potentially higher

         statistical ranking for Memorial Hermann as calculated by U. S. News and World

                                                     -6-

                                                    237
-----·-·····--··---------·

  12/26/2012 09:19:22 AM                  713-755-1451                          Page 8 / 18




            Report.

            5.6    In response to D1·. Gomez repeatedly speaking out about these concerns, as well

            as the likelihood Dr. Gomez would move his surgeries to The Methodist Hospital-

            West Houston as the staffing and equipment dysfunctions continued, Dr. Macris and

            Mr. Alexander, and others, joined in a calculated and deliberate scheme to destroy

            Dr. Gomez' reputation and ability to practice medicine in the West Houston and Katy

            conmmnity. _Dr. Mac_ris wal'~ted to disadv~ntage a skilled competitor, and Memorial

            Hermann needed to avoid losing patit'llts by working with 01·. Macri::; in capturing the

            patients that would have otherwise been treated by Dr. Gomez at another facility.

            5.7   Quality patient care is ·the most important goal of any legitimate health care

            provider.   Under both federal_ and state law, hospitals and their medical staff are

            required to follow stl'ict standards for peer review evaluation and monitoring. These

            peer review standards rely upon a consistent and well-developed process to ensure that

            favoritism, improper motives, and manipulation for unjust purposes play no role.

            Memorial Hermann had such a process in place at all relevant times, but Defendants

            acted to evade and avoid its safeguards while manipulating the rules for peer review

            and utilization review for their own wrongful purposes.

           5.8    ht order to discredit Dr. Gomez and crush his ability tu practice medicine in the

           West HoUb1on and Katy conuuunity, Dr. Macris and Mell\orial Hermann began

           compiling (and distorting) statistical data related to the mortality rates of Dr. Gomez's

           patients.    The nuuupulated data, which was reported using neither the generally

           accepted methodologies for proper peer review compai·ison nor basic scientific

                                                      -7-


                                                     238
 -------------·~-------------


      12/26/2012 09:19:22 AM                  713-755-1451                          Page 9 / 18




                principles, was intended to create the appearance that patients were more likely to die

                in Dr. Gomez's care as compared to other surgeons at Memorial Hermann. At bottom,

                the statistical information compiled and manipulated by Dr. Macris and Memorial

                Hermann was geared to demonstrating a falsehood: that Dr. Gomez was an

                incompetent physician undersel'ving of his reputation and the ti·ust his hard work had

                earned in the West Houston and Katy medical community.

                5.9    Rather than comply with the medical peer review process and its safeguards

                against im.proper :influence, Defendants attempted to evade these well-established

                protocols and the standing medical peer review committee at the hospital Defendants
j .
                then set up an emerge11cy "meeting'' and presented Dr. Gomez with the option of either

                immediately suspending his practice or agreeing to active interventional monitoring

                under Defendants' supervision.      Both "options'' would have effectively destroyed

                Dr. Gomez' reputation i.l1 the medical community, severely curtailing patient choice, as

                well as the opportunity for these and future patients to benefit from Dr. Gomez'

                advanced abilities in cardiothorncic and surgical procedures.

                5.10   At the time Dr. Gomez was presented with these "options" by Defendants, he

      -
      I'
      c....
       0
      00
                was also told that he would not be able to review at any meaningful level the alleged


      l   I
                data supporting the emergency action outside the usual peer review process (the data
      0
      0
      0         that ultimately proved to be improperly manipulated and without a basic medical and
      VI


      ~L:
               scientific grounding). Defendants also refused Dr. Gomez the opportunity to meet with
      .8
       6
      z
       ::,
               or prese11t any information tu Defendants and those acting with Defendants, and

      I
      8
      "O
               instead insisted that D1·. Gomez' quality of care could not be evaluated by the

      ~
      I+:
                                                          -8-
      '€
      u
      u
                                                         239
12/26/2012 09:19:22 AM                  713-755-1451                                 Page 10 / 18




          established medical pee1· review committee.

          5.11   Fortuitously, and despite Defendants' best efforts to continue the railroading of

          Dr. Gomez, the actual peer review committee at Memorial Hermann intervened to

          require Defendants to present their data, and other alleged reasons for attempting to

          block Dr. Gomez' continued pi-actice at Memorial Hermann., to the peer review pl'ocess.

          Notwithstanding Defendants' presentation of the manipulated patient data, the

          evaluation of the peer review ·conuuittee exone1·ated Dr. Gomez. During the process.,

          Defendants were pl'Ovided with cleat· and convit1ch1g evidence that the manipulated

          data used to "compare" Dr. Gomez could not be relied upon for any legitimate purpose.

          5.12   After completing its comprehensive evaluation, including comparison with

          Dr. Macris' own patient care outcome statistics, the pee1· review committee's rejection of

          Defendants' anti-competitive and unlawful abuse of the peer review process should

          have deterred Defendants from their continued misconduct. Unfortunately, Defendants

          elected to instead continue a whisper campaign of selective and improper

          dissemination of both the manipulated data and othei· misinformation within the

          medical community. The first indication Dr. Gomez received· that Defendants' smear

          campaign had continued unabated was when the same type of manipulated and

          misleading data was presented by Dr. Macris on November 1, 2011 at anon-peer review

          meeting organized by MHMD in a publicly displayed "compalison", readily

          identifiable with Dr. Gomez and intended to be seen as sud1.            The circumstances and

          details of this public defamation are   SE:!t   forth in greater detail in Pa1·agraph 7.3 below,

         based on the information available at this time.

                                                           -9-

                                                          240
··---··-····· ··-   ..   ......   ________________
       12/26/2012 09:19:22 AM                                        713-755-1451                          Page 11 / 18




                                   5.13   Mark Twain-once noted that, "A lie can travel around the world before the truth

                                   can even finish putting on its pants." Defendants' illegal and anti-competitive acts

                                   unfairly cast Dr. Gomez' stellar reputation under a dark cloud. As could be anticipated,

                                   if not intended, Defendants' calculated wrongdoing also imposed substantial economic,

                                   emotional, and physical impacts upon Dr. Gomez. Facing continuing harassment and

                                   improper attempts to interfere with his practice at Memorial Hermann, Dr. Gomez

                                   resigned his privileges at Memul'ial Hermam1 in May 2012. However, the loss tu the

                                   conm,,wlity, and Dr. Gomez, from Defendants' misconduct remail1.s 011goh1g and

                                   unremedied.

                                                                          CAUSES OF Ac.TION

                                                            FmsT COUNT-BUSINESS DISPARAGEMENT

                                   6.1 · Dr. Gomez 1·e-alleges and incorporates each allegation contained in Paragraphs

                                   1-5.13 of this Petition as if fully set forth herein.

                                   6.2    Defendants published disparaging wo1·ds about Dr. Gomez' business and

                                   economic interests.      As set forth in Parngraph 7.3 below, and at other times to be
                                                     .                          .                      .
                                   further detailed upon necessary discovery, Defendants did and intended to harm Dr.
          -
          r,..

          'o                       Gomez' business interests.
          ~

          l~                       6.3    Defendants published these disparaging words knowing they were false and
              I
          0
          ~                        with malice.
          (""'

          ~
          ~                        6.4    Defendants published these disparaging words without privilege
           0.,
          .D

          j                                                       SECOND COUNT-DEFAMATION

                                   7.1    Plaintiffs re-allege and incorporate each allegation contained in Pai·agraphs 1-6.4 of

                                                                                    -10-


                                                                                    241
---·······-·--··---------


 12/26/2012 09:19:22 AM                       713-755-1451                      Page 12 / 18




            this Petition as if fully set forth herein.

           7.2       Both lies and half-truths pl'esented in a misleading manner are equally false.

           Defendants' statements and misstatements, induding alleged comparative data, were in

           prope1· context wholly false, Jibelous, and slanderous. Defendants knowingly,

           recklessly, and maliciously spread falsehoods about Dr. Gomez, and Defendants had no

           right, privilege, or justification to make the statements.

           7.3       Specifically, at a C~rdiuyascular and Thoracic CPC Meeting arranged by MHMD

           011   November 1, 2011, which is open and outside the peer review pmcess,, D1·. Macr:is,

           individually and on behalf of MHMD, Memorial He1·nU1IU.l, and Alexande1·, displayed

           and conm,mlicated libelous statements and false data including, but not limited to, false ·

           data and statements regarding Dr. Gomez's practice and mortality 1·ates of his patients,

           to an entire room filled with Dr. Gomez's professional colleagues, intending that it be

           thereafter widely disseminated. Among those colleagues believed to be present at the

           meeting where Dr. Macris disseminated the false data and statements were the

           following:

                 •   Lee Colosb:i.10, MD

  -
  r-,.
  «.,..
   0             •   Anthony Estrera, MD

   ~
  Q..
                 •   Donald Gibson, MD
      I
  0
  0
  0
  11'1           •   Kourosh Keyhani, MD
  ~
  ~
  11'1
   L:
   Q)
                 •   Kamal Khalil, MD
  11
   ::,
  :z             •   Javier Lafuente, MD
  dQ)
   ffl
  ()             •   Robert McKowen, MD
  O·
  0
  11
  ti:
                                                          -11-
  ·e
  Q)
  CJ
                                                          242
                                             · - - - -----·-----·-·-·-------·

12/26/2012 09:19:22 AM                       713-755-1451                          Page 13 / 18




                 •   Imran Mohiuddin, MD

                 •   Jaime Roman-Pavajeau, MD

                 •   Patti Peymaim

                 •   Ann Guercio

                 • Tim Bevelacqua

                 • Byron Auzetme

                 • Richard Alexander, MD

                 • Michael Shabot, MD

          These people in attendance at the November 1, 2011, meeting had the false, libelous,

          and slanderous material directly communicated to them by Dr. Macris, with the full

          intent of Defendants that it be further shared to attempt to harm Dr. Gomez' practice.

          7.4        As described a hove, the statements and representations were defaming to

          01·. Gomez, both personally and in the conduct of his medical practice. Furthe1·more,

          the statements arid 1·epresentations by Defendants were so egregious and obviously

          hurtful as tu constitute libel and slander ,,er se.

                      THIRD CoUNT-TORTIOUS INrERFERENCE WITH PROSPECTIVE RELATIONS

-
r-,.

'o        8.1        Plaintiffs re-allege and incorporate each allegation contained in Paragraphs 1-7.3
~
          of this Petition as if fully set forth herein.

          8.2.       Dr. Gomez had lollgstanding and continuous relationships with referring

          physicians in the West Houston and Katy medical community, and these relationships

          directly led to patient referrals for surgical procedures. Due to these longstanding and



                                                           -12-


                                                           243
                                                     ··-·--···-·-···------··--·--·--·--- - - - -


12/26/2012 09:19:22 AM                      713-755-1451                           Page 14 / 18




          continuous relationships, there was a reasonable probability that Dr. Gomez would

          have been selected to perform surgical procedures for these patients. In addition, there

          is a reasonable probability that Dr. Gomez would have entered into various other

          business relationships with thh'd persons or entities, but for Defendants' improper acts

          and omissions, as set forth herein.

          8.3     Defendants intentionally interfered with the relationships between Defendants

          and these persons and entities. This interference impacted and caused economic loss in

          the past and future to Dr. Gomez.

                               FOURTH COUNT -IMPROPER RESTRAINT OF TRADE

          9.1 ·   Plaintiffs re-allege and incorporate each allegation contained in Paragraphs 1-8.3

          of this Petition as if fully set forth herein.

          9.2     Section 15.21 of the Texas Business and Commerce Cude, also known as the

          Texas Free Enterprise and Antitrust Act of 1983, recugnize.s as illegal improper attempts

          to abuse the peer review process, as well as conspiracies to limit patient chuice by

          concerted illegal acti<?n such as engaged in by Defendants. Dr. Gom~z the1·efore seeks

 !::      relief for this anti-competitive solely under the laws established by the State of Texas for
 c..,.
  0

 -
 rt')
          this anti-competitive misconduct affecting Texas' citizens residing in the West Houston

          and Katy communities.

          9.3     In the West Houston and Katy communities, Dr. Gomez was in competition with

          D1·. Macris, while Memorial Hermann was in competition with other surgical facilities,

          primarily including The Methodist Hospital West Houston. Defendants both derived


                                                           -13-

                                                           244
-----·-·-·-···· ----   · - - - - - - - - ·-····----·--···-·-········--

   12/26/2012 09:19:22 AM                           713-755-1451                         . Page 15 / 18




              illegal benefit, and patient choice was improperly limited in the West Houston and Katy

              community, by the concerted effort of Defendants to restrain competition in and

              monopolize surgical procedures i11 the West Houston and Katy communities.


              9.4      In furtherance of the combination and conspiracy, and with the purpose and

              intent of excluding Dr. Gomez from the patient care market and destroying competition

              from Dr. Gomez (and i-esulting loss of patients at Memorial Hermann), Defendants not

             · only attempted to curtail or limit Dr. Gomez' surgical procedures, but also defamed

              Dr. Gomez' skill and qualifications as a surgeon in the West Houston and Katy

              conununity. These acts we1·e done with the specific intent to weaken or elimh1ate

              competition from Dr. Gomez, ilfld because. of the ma1·ket dominance that would re&-ult

              had a dangerous probability of success.

              9.5      Defendants' willful actions have also harmed and threatened the general public

              by interferil1g with the ordexly practice of medicine in the conunuility, by reducing the

              number of sw·geons actively practicing in cardiothoracic and general surgery ht the

              community, and by depriving patients of the highest quality of medical care they would

              have been able to receive but for Defendants' concerted actions against Defendants.

              9.4      Tilis concerted co11duct was flagrant and willful, and was done for the specific

              purpose of harming D1·. Gomez, illegally and improperly taking Dr. Gomez' practice,

              and dive.rting it to Dr. Macris and others practicing solely at Memorial Hermaru1.
    j
     §        9.5      The    acts    of    Defendants      constitute   illegal   monopolization,   attempted
    :z
              mollopolization, and/ or conspiracy to monopolize w1der applicable Texas law.


                                                                 -14-

                                                                 245
···------······--····-····---------··..·-······-····


    12/26/2012 09:19:22 AM                             713-755-1451                  Page 16 / 18




                                                       RESULTING LEGAL DAM.AGES

                  10.1     Dr. Gomez is entitled to the actual damages resulting from Defendants'

                  violations of the law. These damages include the consequential damages to Dr. Gomez'

                  economic welfa1·e; the mental anguish and physical suffering resulting from

                  Defendants' conduct and the continued impact on Dr. Gomez; lust business reputation;

                  attorneys' fees as allowed by law; and the other actual damages permitted by law .

                . ~O.~. D:1> G~~~~~--t~~ts_ tl:t~ iW.:Y tc;, eval~ate the evidence-~cluding dQ~ment~tion

                  and expert and lay witness testimony- and to properly assess the damages sustained

                  by Dr. Gomez.          The law permits Defendants to demand that Plaintiff state the

                  maximum amount of damages that Plaintiff will seek, and only in response to that

                  demand, Plaintiff states that he expects to request the jury to award a maximum

                  amount of $15,000,000.00 in compensation for the damages asserted based on the most

                  current available information. As additional information of the amount of the harm

                  inflicted by Defendants becomes available, and as permitted by law, Dr. Gomez will

                  amend this determination to as best possible provide a fair estimate for our juror's

                  co11sideratiu11.

     "-
     c..,.
      0
                  10.3    Defendants are also liable for statutory additional trebling and exemplary
     -
     V'I


                  damages warranted by Defendants' malicious and egregious conduct.

                                                               PRAYER

                          WHEREFORE, PREMISFS CONSIDERED, Dr. Gomez respectfully requests

                  judgment against Defendants for actual damages in excess of the n'lilumum

                  jw·isdictional limits of this Court, pre- and post-judgment interest as allowed by law,

                                                                 -15-

                                                                 246
---··-----------------

  12/26/2012 09:19:22 AM                     713-755-1451                              Page 17 / 18




             costs of suit, and all other relief, at law or in equity, to which Plaintiffs may be justly

            entitled.


                                                                 Respect.fully submitted,

                                                                 DOYLE RAIZNER LLP




                                                                 MICHAEL PATRICK DOYLE
                                                                 State Bar. No. 06095650
                                                                 LyondellBassell Towei·
                                                                 1221 McKinney, Suite 4100
                                                                 Houston, Texas 77010
                                                                 Phone: 713.571.1146
                                                                 Fax: 713.571.1148
                                                                 mdoyle@doyleraizner.com

                                                                 ATTORNEYS FOR PLAINTIFFS

                                                   JURY DEMAND

                   Dr. Gomez heteby demands a trial by jury, a 11g1tt enshrined in the Constitutions of t1ze
            United States of America and the State of Texas and i,reserved by the sacrifices ofmany. The
            necessanJ junJ fee has been paid.


   -
   .....
   c...
    0
                                                             ltt~ \
   -
   \C



                                                             r\/\
                                                         MICHAEL PATIUCK DOYLE




                                                          -16-

                                                          247
12/26/2012 09:19:22 AM                  713-755-1451                           Page 18 / 18




                                        CERTIFICATE OF SERVICE

                 Ii the undersigned attorney, do hereby ce1tify that a true and correct copy of the
          foregoing document was forwarded to the followi11g counsel of record on this the 26 th
          day of December, 2012 via 1-umd delivery, overnight courier, U.S. Mail, certified mail,
          return receipt request, and/ or facsimile, pursuant to the Texas Rules of Civil Procedure:

                 Robert Swift
                 Jesse Coleman
                 Fulbright & Jaworski
                 1301 McKinney, Suite 5100
                 Houston, TX 77010
                          ..
                 ATTORNEYS FOR DEFENDANTS




                                                       a~ \
                                                       r\A
                                                   MICHAEL PATRICI< DOYLE




 -
 l"
 to,.,
  0

 -f
 r--
  Q)


 c..
     I
 0
 0
 0
 V"I

 "~
 V"I
  L:
  Q)
 .D
  e
  :,
 z
 c0
 e
 :,
  ()
  0
 0
 "'0
  0
 tC
                                                    -17-
 ·e
 4)
 u                                                  248
                               ······ ··-····
                .......~f HAR~····...
              .. ~ ······· ~ ··.
          ./_~u·····
         iol
            ...., .- . ···. .. . _oo··.
                                    c\
                                          .
        :~ 0::                   :: -, :                    % :
                                  . _..,,, .
                            ..·.......' :..
         .. ..
           :.,
           ~
              ~


          •
           .•
         \ ,-:~··
                  ,:-,;
                          •.
                               ....              ....l'4.~,
                                                     •   A.._T

                                                          '- •
                                                              .•'•


                ··...•,7q ....
              '• ,c"~

                          K
                               Co ••••• •·
                                      ••••••••



                          ·········· ······
     I, Chris Daniel, District Clerk of Harris
     County, Texas certify that this is a true and
     correct copy of the original record filed and or
     recorded in my office, electronically or hard
     copy, as it appears on this date.
     Witness my official hand and seal of office
     this May 3, 2016


     Certified Document Number:                                      54275000 Total Pa,:es; 17




     Chris Daniel, DISTRICT CLERK
     HARRIS COUNTY, TEXAS




In accordance with Texas Government Code 406.013 electronically transmitted authenticated
documents are .valid. If there is a questiQn regarding the validity of this document and or seal
please e-mail support@hcdistrictclerk.com


                                                                                     249
----·---------·--------------




       STATE OF TEXAS                §
                                     §              AFFIDAVIT
       COUNTY OF TOM GREEN §

              BEFORE ME the undersigned authority appeared Steve F. Montoya, Jr. M.D. and after
       being duly sworn under oath stated.

             "My name is Steve F. Montoya, Jr. M.D. I am the Plaintiff in this case. I have
       knowledge of all the facts of this affidavit as Plaintiff and all facts are within my personal
       knowledge true and correct and that I was involved with facts stated.

              I have not used any patient name, except where authorized by the patient or their agent, to
       avoid any HIPAA or privacy violation.

              1. I ·was ·admitted to practice nephrology at San Angelo Community Medical Center in
                  1981.   I have full staff privileges for the practice of nephrology at San Angelo
                  Community Medical Center. This case does not involve the rights of Defendant San
                  Angelo Community Medical Center to speak freely, associate freely, and participate
                  in government as permitted by law. The facts of the case are that I have full staff
                  privileges to practice nephrology medicine at San Angelo Community Medical Center

              2. Part of my practice and obtaining patients is that the hospital emergency room uses a
                 rotating system of specialists admitted in that practice to see patients in the hospital
                 and emergency room pursuant to the EMTALA Medicare call list. When you are the
                 named specialist you receive a call from the emergency room physician that a doctor
                 with your specialty is needed for a patient. A big part of my practice was obtaining
                . new patients and treating existing patients that came to the emergency room that
                 needed a nephrologist. Since 1981 I have gotten new patients from the emergency
                 room.

              3. Until 2007 I would receive 10-20 calls from the emergency room, per month to treat
                 either new or existing patients for nephrology care at the San Angelo Community
                 Medical Center. Since 2008 I have received only one call from the emergency room
                 or a hospitalist for consultation as a nephrologist. A nephrologist treats patients with
                 kidney problems and or disease. The one call I received was for treatment of a new
                 patient or existing patient that suffered with kidney problems.




                              £.1. Ji; bi f L        250
     ·-------·--·····-·--·-------··--· -- •....




4. The one time call for a new patient is described below. On January 24, 2014 I was
    called by the San Angelo Community Medical Center emergency room physician on
    duty and the hospitalist Dr. Bartels. Dr. Bartels and the emergency room physician
    informed me that a patient was diagnosed with acute renal failure. I was informed my
    name was on the call board in the emergency room as nephrologist on call. Both of
    the above doctors asked me to consult concerning treatment for that patient. I gave
    my initial consult advice/orders of treatment to both doctors. This consultation call
   was to me at 9:38 p.m. I informed them I would come see the patient and then review
   the test results and determine any additional treatment for the patient. Attached as
   Exhibit A is a true and correct copy of the redacted hospital record, removing the
   name of the patient for HIPPA privacy, showing the facts on January 24, 2014.

5. On January 25, 2014 at 8:10 a.m. Kirk Brewer, M.D. took over the hospitalists care of
   the patient as his rotation as the hospitalist started. Then without ever seeing the
   patient or the chart Kirk Brewer, M.D. cancelled my consult and treatment by me and
   consulted another nephrologist. The nephrologist he brought in for consult is one that
   is in a group that Kirk Brewer, M.D. has a contract for paid services. Kirk Brewer,
   M.D. without seeing the patient, or chart changed the patient's doctor. This change of
   nephrologist was for Kirk Brewer, M.D.'s economic gain and caused me economic
   loss. Attached as Exhibit B is a true and correct copy of the redacted hospital record
   showing the facts on January 25, 2014.


6. In removing me as the nephrologist the ~ospital published a statement that I was not a
   competent nephrologist to treat patients coming to the San Angelo Community
   Medical Center emergency room. San Angelo Community Medical Center through
   its agents and representatives was aware that its actions would become known to the
   staff physicians of San Angelo Community Medical Center and that there was by
   conduct and a whisper campaign saying I (Steve F. Montoya, Jr. M.D.) should not be
   allowed to treat patients at San Angelo Community Medical Center.




                                           251
7. The statements and actions of San Angelo Community Medical Center by and
    through its agents and representatives were published by conduct. The actions were
    referring to keep from treating my own patients and any new patient coming to the
   San Angelo Community Medical Center emergency room.               Toe statement(s) and
   actions were defamatory and caused me economic loss.


8. Until 2007 I would receive l 0-20 calls from the emergency room per month to treat
   either new or existing patients at the San Angelo Community Medical Center. Since
   2008 I have only received one call from the emergency room or a hospitalist for
   consultation as a nephrologist, except for one time for treatment of a new or existing
   patient that suffered with kidney disease/problems. The lack of referrals caused
   substantial injury to the Plaintiffs and damaged their ability to compete, because the
   Plaintiffs depend on these referrals and consults to build and maintain the nephrology
   practice. A majority of patients who need kidney treatment/ suffer from kidney
   disease in a hospital later need continuing care for their kidneys or related problems;
   the most common of such continuing treatments is kidney dialysis. A typical kidney
   dialysis patient will need treatment for six years, and each such patient would mean
   revenue to the Plaintiffs practice of approximately $100,000 per year. I estimates that
   the Plaintiffs have lost at least 100 long term kidney dialysis patients from 2007 to the
   present due to the Defendants' anticompetitive scheme to refuse to give me patient
   referrals or consults. I estimate that this lack of referrals has thus cost Plaintiffs
   $1,000,000 to-$6,500,000 over that period of time.

9. The defamatory statements and actions are untrue. I am a competent and qualified
   nephrologist to treat patients at San Angelo Community Medical Center. If I were
   not a competent and qualified nephrologist I would have been removed from the staff
   of the hospital.


10. The actions of San Angelo Community Medical Center by and through its agents and
   representatives were intentional or done with negligence when San Angelo
   Community Medical Center knew that the statement was false and the actions would
   lead a reasonable prudent physician or patient knowing/believing of its defamatory



                                      252
    potential. The actions interred with my ability to make a living as a nephrologist on
    staff at San Angelo Community Medical Center.


11. The rules at San Angelo Community Medical Center and of the staff of San Angelo
    Community Medical Center are to have a new patient in the emergency room or
    hospital that needs a specialist consultation assigned to the name off the rotating
    consultation list. The consultation list is kept by San Angelo Community Medical
    Center by and through its agents and representatives. By San Angelo Community
    Medical Center not following this procedure I did not receive any consultation
    requests from the emergency room or hospitalist at San Angelo Community Medical
    Center in 2008-present and one in 2014.


12. Attached to this affidavit as Exhibit C is the true and correct sworn statement that an
    existing patient of mine Mrs. Welch tried to see me in the emergency room of San
   Angelo Community Medical Center and that the emergency room would not call me
   to treat my existing patient Mrs. Welch is over 90 years of age and I have treated her
   for at least 20 years. These actions interfered with my right to treat my patient and to
   the patient's rights to pick her physician and to her rights under the patients' bill of
   rights (see attached Exhibit D) and the patients' dialysis bill of rights (see attached
   Exhibit E)


13. Another patient of mine, whose name is withheld per privacy rights, who is also over
   90 years of age and has been my patient for at least 10 years requested me when she
   went to the emergency room and she also was refused to see me. This action
   interfered with my right to treat my patient and to the patient's rights to pick her
   physician and to her rights under the patients' bill of rights (see attached Exhibit D)
   and the patients' dialysis bill of rights (see attached exhibit E)



14. A patient has the absolute right to be treated by their physician.   Attached as Exhibit
   F is a true and correct copy of the patient bill of rights posted at the San Angelo




                                        253
    Community Medical Center. Attached as Exhibit E a true and correct copy of the
   dialysis patient bill of rights concerning care of a dialysis patient. Both of these
   patient bills of rights were violated by San Angelo Community Medical Center.


15. On January 25, 2014 at 8: 10 a.m. Kirk Brewer, M.D. took over the hospitalists care of
   the patient referred in Exhibits A and B as his rotation as the hospitalist started. Then
   without ever seeing the patient or the chart Kirk Brewer, M.D. cancelled my consult
   and treatment and consulted another nephrologist.        I went to the call board and
   witnessed my name on call as the nephrologist on call on January 24 and 25, 2014.
   The. San Angelo Community. Medical Center is required to have. an official EMTALA
   Medicare call list for on call physicians for the San Angelo Community Medical
   Center to take Medicare patients.       This is the list my name was on and was
   intentionally ignored. This also violates a patient's right to choose their physician.
   This list ·was· followed until Dr.· Brewer came to San Angelo Community Medical
   Center and took charge of hospitalists. The nephrologist he brought in for consult is
   one that is in a group that Kirk Brewer, M.D. has a contract for paid services. Dr.
   Brewer did not see the patient when he removed me as the treating nephrologist he
   issued the change via a telephone order (see Exhibit B). Kirk Brewer, M.D. without
   seeing the patient, or chart changed the patient's doctor. This change of nephrologist
   was for Kirk Brewer, M.D.'s economic gain and caused me economic loss.


16. By the. actions of the hospitalists and emergency room physicians who are controlled
   by their supervisor or lead physician Kirk Brewer, M.D. through the above actions
   intentionally interfered with my practice of medicine at San Angelo Community
   Medical Center to keep me from receiving patients as required by the EMTALA
   Medicare call list.


17. The Defendants' anticompetitive conduct has harmed consumers and others who pay
   for nephrology services in the relevant market by increasing the costs of those
   services. This is demonstrated by the chart attached hereto as Exhibit G. Before Dr.
   Brewer's group of hospitalists became the attending physicians for all nephrology




                                      254
            patients at SACMC, nephrology patients would be referred to rrie (Dr. Montoya) who
            would serve as the attending physician for the patient. This arrangement avoided the
            "middle man'' which now exists, as the hospitalists now usually serve as an additional
            charging entity between the patient and the nephrology specialist. Even if the
           hospitalists could do the same work as me or my partner used to provide, the patient
           (and/or insurance and taxpayer-funded Medicare/Medicaid) still faces increased cost
           for the same nephrology work, as the hospitalists charge more for physician services
           than I charge. The SACMC hospitalists charge at the "Comprehensive" Medicare
           allowable rate, which adds up to average charges of $506.85 per day. See Exhibit
          ·-·G.· In· approximately , 2010, at· the SACMC · emergency room, -Dr. ·Brewer · · ·
           explicitly told me that he and his group of hospitalists will always charge at the
           comprehensive rate, regardless of medical necessity, because those charges
           maximize revenue for Dr. Brewer and his group of hospitalists.            I, however,
          ·charge· at the "Moderate" Medicare allowable rate, which adds up to an average cost
           of $346.13 per day. The difference between these charges is $160. 72 per nephrology
           patient per· average hospital stay. Over the course of a year, consumers/payors for
           nephrology services have thus paid thousands more for the hospitalists' physician and
           nephrology services than they would have paid for care from me who is a physician
           specialist in nephrology.
    All of the actions described in this affidavit are done by or for the Defendant San Angelo
Community Medical Center.

       Further affiant saith not."

       Signed this 4th day of May, 2016.




         Subscribed and sworn to me the undersigned notary by Steve F. Montoya, Jr., M.D. on
the 4th clay of May, 2016.

                                                          (ili4 {J
                                                         Notary Public   4
                               e
                               P
                                     ,tff.,,
                                                OAUlACRUZ
                                         ~ MY COMMISSION EXPIRES
                                                 May 16, 2018


                                                   255
                                                                   '!
                                                    n)

                                                                                                                                                   111/ll illlllllllllllll
                                                                                                                                                          'IPO"

                 ALLERGIES & SENSIT IYITftS               O No Known Alleri:ies                                  0 lb O kg       HEIGH             0 in Ll cm
                 OrtUG                                        REACTION


                2.                                                                        5.
                3.                                                                        6.


                                   [ J Another brand of drug identical in form and content may be dispensed unless checked

                                            MPLETE THIS SECTION FOR PATrENTS WHO wrLL DE SENT TO A PATIENT ROO:'r(!
                D111<, ·   lime          Admit to [npntient Stntus                UNIT (check 011c) :
                                     0                                                                  Med-Telemetry        ,:J ICU   O OB/L& D
                                          lace in Observation S tatus
                                     0 Place in Outp,Hic:nt Status                                       n,,,,
            r
         I
         I
         I
        I
        I
        I
        I
     I
  . ·I··
     I
        I
        I
        I
       I
       I
       I
       I                              ------                                                                - ------
   I

~1I
-/ /
                                                                      j/?;/r,,/J~
!       Phy,;dan s;gnatu"
   Physician Admission Orders
  NS-270 1- IOHMS                 J0/ 10 (Rev. 07112)
                                                                     ,/~£P D{!J/f4,r;me,' .
                                                             P;1gc: I of I
                                                                             125
                                                                             "
                                                                             _J

                                                                             ;;
                                         0.
      r


                                                                                                                        lllllll~llllllllllll/111
                                                                                                                               '!PO'

      ALLERGIES & SENSTTTVITTES            O No Known Allergies      WEIGHT: _ _ _ 0 lb O kg           HEIGHT: _ _ _ 0 in O cm
      DRUG                                     RE:ACTJON              DRUG                                   REACTION




    Ii
                        J   Another brand of drug identical in form and content may be dispensed unless checked
             I
             j
                            COMPLETE THIS SECTION FOR PATIENTS WHO WILL BE SENT TO A PATIENT ROOM!
             I
     Dare    i Time     0 Admit to Inpatient Status            UNIT (d,eck one):
                        0 Place in Observation Status          0 Med/Surg     O Med-Telemetry O ICU O OB/L&D
                        0 Place in Outpatient Status           0 Other _ _ _ _ _ _ _ _ _ _ _ _ _ __




                                                                                                   Date            Time
  P~ysician Signature

Physician Adni.iss~n O{ders ;. ::
NS-270 l -!OHMS       I0/10 (Rev. 07/12)         Page I of I
            ,.,,.. I·, . .   ,r:::)A
                -----~                 .....   - · - - - - - · ··-··-·---·-····-~---···-·-·---·. -·   .




t2/l~/2015 WED 13: 23      FAX 3;      · 4284 West Texas Nei;,hrology .. - ...            ci.         ',AI RD ATTORNEY         121003/003




       April 17, 2014




       I am Karen·, Tims; the daughter of Eunice Welch. I am writing to you on her behalf
       concerning her admission to SACMC on 11/28/2011. When asked by the ER admission
       staff, we. repf~ed that ~Dr. Montoya" was her doctor. We were admitted to the
       hospitalfsts' service. We do not appreciate the fact that we did not have our physician
       of choice at t~e hospital. Please correct this to help maintain quality patient care.


       Sincerely,·

       Karen nms        ?,
      7(~7~
      stateof        ~
      County of   c:z?tm ~
      Subscribed and swo~ to before me this                   _!J!/;;of ~                                 ,   ',a-tJ /   1/:

    e
    ~~----
             ROSEMARVANDROS
            My Commlssfon Expires
               August 19, 2017
                     .........."""'"




                                                                 258
                                       . ,.
·----~-·-----·---------·--·--·-·--·-------




               Know Your Rights and Responsibilities.
               You have the right to:

                    •    Be treated In a dignified and respectful manner and to receive reasonable responses to reasonable
                         requests for service.
                   •    To effective communication that provides information in a manner you understand, in your
                         preferred language with provisions of interpreting or translation services, at no cost, and in a
                         manner that meets your needs in the event of vision, speech, hearing or cognitive impairments.
                         Information should be provided in easy to understand terms that will allow you to formulate
                        informed consent.
                   •    Respect for your cultural and personal values, beliefs and preferences.
                   •    Personal privacy, privacy of your health information and to receive a notice of the facility's privacy
                        practices.
                   •    Pain management.
                   •    Accommodation for your religious and other spiritual services.
                   •    To access, requestamendment to and obtain information on disclosures of your health information in
                        accordance with law and regulation within a reasonable time frame.
                   •    To have a family member, friend or other support individual to be present with you during the
                        course of your stay, unless that person's presence infringes on others' rights, safety or Is medically
                        contraindicated.
                   •    Care or services provided without discrimination based on age, race, ethnicity, religion, culture,
                        language, physical or ·mental disability, socioeconomic status, sex, sexual orientation, and gender
                        identity or expression.
                   •    Participate in decisions about your care, including developing your treatment plan, discharge
                        planning and having your family and personal physician promptly notified of your admission.
                   •    Select providers of goods and services to be received after discharge.
                   •    Refuse care, treatment or services in accordance with law and regulation and to leave the facility
                        against advice of the physician.
                   •    Have a surrogate decision-maker participate in care, treatment and services decisions when you are
                        unable to make your own decisions.
                   •    Receive Information about the outcomes of your care, treatment and services, Including
                        unanticipated outcomes.
                   •    Give or withhold informed consent when making decisions about your care, treatment and services.
                   •    Receive information about benefits, risks, side effects to proposed care, treatment and services; the
                        likelihood of achieving your goals and any potential problems that might occur during recuperation
                        from proposed care, tr.eatment and service and any.reasonable alternatives to the care, treatment
                        and services proposed.
                   •    Give or with hold informed consent to recordings, filming or obtaining images of you for any purpose
                        other than your care.
                   •    Participate In or refuse to participate in research, investigation or clinical trials without jeopardizing
                        your access to care and services unrelated to the research.
                   •    Know the names of the practitioner who has primary responsibility for your care, treatment or
                        services and the names of other practitioners providing your care.
                   •    Formulate advance directives concerning care to be received at end-of-life and to have those advance
                        directives honored to the extent of the facility's ability to do so in accordance with law and
                        regulation. You also have the right to review or revise any advance directives.
                   •    Be rree from neglect; exploitation; and verbal, mental, physical and sexual abuse.
                   •    An environment that Is safe, preserves dignity and contributes to a positive self-image..
                   •    Be free from any forms of restraint or seclusion used as a means of convenience, discipline, coercion
                        or retaliation; and to have the least restrictive method of restraint or seclusion used only when
                        necessary to ensure patient safety.
                   •    Access protective and advocacy services and to receive a list of such groups upon your request.
     •   Receive the visitors whom you designate, including but not limited to a spouse, a domestic partner
         (including same-sex domestic partner), another family member, or a friend. You may deny or
         withdraw your consent to receive any visitor at any time. To the extent this facility places limitations
         or restrictions on visitation; you have the right to set any preference of order or priority for your
         visitors to satisfy those limitations or restrictions.
     •   Examine and receive an explanation of the bill for services, regardless of the source of payment.

 You have the responsibility to:

     •   Provide accurate and complete information concerning your present medical condition, past illnesses
         or hospitalization and any other matters concerning your health.
     •   Tell your caregivers if you do not completely understand your plan of care.
     •   Follow the caregivers' instructions.
     •   Follow all medical center policies and procedures while being considerate of the rights of other
         patients, medical center employees and medical center properties.

 You also have the"rfght to:   . ..

  Lodge a concern with the state, whether you have used the hospital's grievance process or not. If you have
. concerns regarding the quality of your care, coverage decisions or want to appeal a premature discharge,
  contact the State Quality Improvement Organization (QIO),

 Quality Improvement Organization
 Phone: (216) 447-9604
 Toll Free: (844) 430-9504
 Fax: (844) 878-7921
 Mail: KEPRO
 5700 Lombardo Center Dr.
 Suite 100
 Seven Hills, OH 44131

 If you have a Medicare complaint you may contact:

 Texas Department of State Health Services
 Phone: (512) 834-6700
 Mall: Texas Department of State Health Services
 P.O! Box 149347
 Austin, TX 78714-9347

 Regarding problem resolution, you have the right to:

Express your concerns about patient care and safety to facility personnel and/or management without being
subject to coercion, discrimination, reprisal or unreasonable interruption of care; and to be informed of the
resolution process for your concerns. If your concerns and questions cannot be resolved at this level, contact
the accrediting agency Indicated below:

The Joint Commission        .
Phone: (800) 994-6610 Fax: (630) 792-5636
Email: COMPLAINT@JOINTCOMMISSION.ORG
Mail: Office of Quality Monitoring/the Joint Commission
One Renaissance Boulevard
Oakbrook Terrace, IL 60181
                                                                                                               National Kidney
                                                                                                               FoundationN




Kidney Leaming Systems (KLS)TM




                            STAG£ 1
                      IGdnty 0,1ma90 with
                  Norm.ti or f tGd.r,ey F.incUon
                -------------------
            GFR130
                                T



                                                    -
                                                   90
                                                      ••60
                                                             .     ..   ..,.
                                                                        30
                                                                               .
                                                                                   -.
                                                                                        15

                   light-shaded boxes indicate the scope of content in this KLS reso urce.
                   GFR • Glomerulor Filtration Rate; T • Kid ney Transplant; D • Dialysis
                                                                                             0




                   Nolionol Kidney Foundolion
                   30 East 3 3rd Slreet
                   N ew York. NY 100 16
                   800.622 .90 10

www.kidney.org
~ 2003 Nalionol Kidney Foundation, Inc .
2006 Editio n. All righ ts reserved.                                                             11 -65·1639
-              ~,,  - .
                     ,   - ,..   .. .
                              ; ;..             ·~·
                                              ;.,     '

 :~'~\~\\\·\ ';~-\~~"\\'\\'\\\\\\"\"\.\\'· -'\'\'\_ .·~
                                                              ~·.   -

      PATIENTS' Rights
        1:1   Quality Care
        s Information
        ci     Individual Treatment
         a Privacy and Confidentiality
         :;i     Services Without Discrimination
          c Treatment Options
          Iii.   Kidney Transplantation
          111Home Care
              e Self-Care Treatment
              a Emergency Care
              ~ Dietary Counseling
                                                                                                  Your Rights
              a Social Work Services
                                                                        1. Quality Care
               ti    Facility Management
                                                                        You hove lhe right to:
               til   Formal Complaint Process
                 o Refusal ond Advance Directives                        D   Receive high-quolily heolt~ core thol meels recognized
                                                                             professional goals .
                 e Medical Consultation
                 B   Research Programs                                   c Be port of. the health core learn, along wilh a social worker,
                                                                           nurse, doctor and dietitian.                         .
                 i'I Treatment        Costs
                                                                         a Expecl that slaff members in training will be direcliy
              PATIENTS' Responsibilities                                     supervised.
                    c Be Informed                         ·
                     a Plan and Follow a Treatment Program              2. Information
                     sBe on Time                                        You hove lhe righl lo:

                     liJ Follow   Facility Policies                       a Receive informolion from your nephrologisl \kidney doctor) in
                                                                            words 1h01 you con underslond. This should include informo·
                                                                            lion oboul _your medical condilions, treolment choices, lest
                                                                            resulls and possible problems. If lhis information cannot be
                                                                            given lo you direclly, the doclor should speak to your family
                                                                            or lhe person ocling on your behalf.
 Q     Be informed about current dialysis treatments for kidney
       disease.
 Iii   Be informed of the process of dialyzer re-use and your
       options.
 lil   Receive a complete review of any test results and treatment
       by your doctor or a member of the heohh core team.
 a     Be informed of any possible side effects of medications
       y~u ore toking.

3. Individual Treatment
You hove the right to:
 E     Be treated wi th dignity, respect and consideration.
 m     Suggest a change in the type   of   treatment.
                                                                       6. Treatment Options
 r.J   Expect your kidney doctor and other members of your
       health care team to listen to you when you suggest              You hove the right to:
       changes in your dialysis treatment.                              a      Receive a full explanation of all treatment options for kidney dis-
                                                                               ease, including their advantages and disadvantages.
 fl    Expect that treatment will be tailored to your individual
       health needs.                                                   7. Kidney Transplantation
 a Expect that the patient-to-staff ra tio at your facility conforms   You hove the right to:
   to state regulations.
                                                                         a Receive a full explanation of the kidney transplant process
4. Priva cy and Confidentiality                                            including all transplant options.
                                                                                           ,'
You hove the right to:                                                   a Select the transplant center at which you desire to hove a
                                                                               transplant evaluation ofter consultation w ith the nephrologist.
  B    Expect privacy when receiving medical care.
  a    Expect examinations and discussions about your core to          8. Home Core
       be held in private.                                             You hove the right to:
  a    Expect that your personal med ical information will be kept       iiJ   Be informed of new advances in home core and hove the
       confidential .                                                          opportunity to make a change. to that treatment option.

5. Services W ithout Discrimination                                      ra    Receive educational materials about new procedures.
You hove the right to:                                                   El     Suggest changes in your home core treatment.
  0    Expect medical core without regard to your race, color,              a Receive folfow-up core by dietary, social work and nursing
       gender, sexual preference, religion or notional origin.                services.
9. Self-Core Treatment                                                    11. Dietary Counseling
You hove the right to:                                                    You hove the right to:
 1:1   Receive information about dialysis facilities that offer            11         Receive counseling from a qualified d ietitian according to
       self-care .                                                                    federal and state low.
                                                                           c Receive nufritionol educational material and instruction.
10. Emergency Core                                                    1
You have the right to:                                                                Receive core and counseling on a regular basis .
                                                                      J    1.1

 .i    Receive emergency medical core w ithout ur)necessary               12. Social Work Services
       delay.
                                                                          You have the right to:
 Iii   Be informed by the dialysis facility about their emergency
       pion in case of a disaster (e.g., snow storm , fire, loss of         ci        Receive counseling from a qualified social worker
       power) .                                                                       according to federal and state low.

 il    Be informed of the facility's pion of action in case o f             a Receive an evaluation and follow-up care, including a
       medical emergencies.                                                           vocational rehabilitation review.
                                                                            a Receive referra ls to community services when needed.

                                                                          13. Facility Management
                                                                          You hove the right to:

                                                                            e Expect the dialysis faci lity to employ skilled staff and
                                                                                      provide safe, clean, comfortable and professional
                                                                                      surroundings.
                                                                            c         Expect the facil ity to make every effort to make you com-
                                                                                      fortable and give you your treatment on time, according to
                                                                                      o schedule that meets special needs whenever possible.
                                                                            a Expect the facility to monitor the quality of treatment and
                                                                                      equipment according to regulations.

                                                                           14. Formal Complaint Process
                                                                           You hove the right to:



                                                                      l      c


                                                                                E:1
                                                                                       Make a complaint to your facility management and
                                                                                       request that _they try to resolve o problem.
                                                                                       Ask and be instructed on your dialysis facility's grievance
                                                                                       process.
                                                                                 a File a complaint with the End-Stage Renal Disease
                                                                                   Network in the region, and/ or your state health
                                                                                   deportment in on attempt to resolve a problem.
15. Refusal, Advance Directives a nd End-of-Lile Care                    18. Treatment Costs

You hove the right to:                                                   You hove the right to:

 c         Make decisions about your health core based on informa-        n Receive o full explanation of oil charges by the facility and
           tion given to you by your kidney doctor.                                doctor.

 e Complete on advance directive stating your wishes.                     s Be informed about your financial responsibilities ofter·
                                                                                     Medicare or Medicaid and/ or other health core insurance
 .. Be informed by your kidney doctor of the possible results                        coverage.
    of refusing drugs, treatments or procedures.
                                                                           c Obtain assistance with completing insurance forms.
 fl        Be informed of how the facility cores for those regarding
           end-of-life needs.                                              111       Get information about how you con poy your bill and
                                                                                     about programs available to help you.
  c        Refuse any drugs, treatments or procedures offered to you.
  El       Indicate your refusal in writing.                                                        Your Responsibilities
  El       Accept full responsibility for the medical outcomes of your   1. Be Informed
           refusal.                                                      It is your responsibility to:
16. Medical Consulta tion                                                  ci        Learn as much as you con
You hove the right to:                                                               about your kidney disease and
                                                                                     how it is treated .
  D        Request consultation with another doctor for any kidney- or
           non-kidney-related medical problem.                             r:i       Talk to your health core tea m
                                                                                     about your concerns regarding
  lil      Know that payment for consultation may not be covered                     your treatment.
           under Medicare or other health core coverage, and you
           may be responsible for payment.                                2. Plan and Follow a Treatment
                                                                                   Program
 17. Research Programs
                                                                          It is your responsibility to:
You hove the right to:
                                                                            a Supply a ll i"nformotion about your health n~eded to pion
  El       Receive a full explanation of any research program in              and carry out a treatment p rogram that will give you the
           which you may be able to participate.                              best results.
  c        Know that the study will not be conducted without your            I!]      Find out about the other services and referrals that ore
           informed consent or that of the person acting on your                      recommended by your health ~ore team.
           behalf.
                                                                          3. Be On Time
     !ii    Refuse or withdraw from the research study at any time.
                                                                          It is your responsibility to:
                                                                             o Make every effort to be on time for your scheduled dialysis.
                                                                                 G    Tell the dialysis facility ahead of time if you ore unable to
                                                                                      attend your next treatment dote.
 o Understand tha t your treatment li me may be shortened if you
   arrive late.

4 . Follow Facility Policies
It is your responsibility to:
 u Follow the facility policies and procedures that have been
   developed to provide safety and quality of care to all patients.

5. Be Considerate
Ii is your responsibility to:
 a Treat other patients and staff members with respect, d ignity
   and consideration.
  e Never threaten others, act in a violent manner or cause any
        physical harm.                                                      Many thanks to the following organiza[ans for their role in assisting with the
                                                                              developm~nt of the Dialysis Patients"'Bill of Rights and Responsibilities    •
6. Fulfill Financial Obligations                                           American Society of                       NKF Council on Reno! Nutrilion
                                                                           Tronsplontolion                           NKF Council of N ephrology
It is your responsibility to:                                              Cenlers for N\edicore &                     N urses and Technicians
                                                                             i'Aedicoid Services                     NKF Polient & family Council
  lil   Make every effo rt to poy your bills for core from the dialysis    ESRD Network d                              Executive Commitlee
        facility and doctor(s}.                                            ESRD Nelwork 7                            Nolionol Renal Adminislrotors
                                                                           ESRD Network 8                               Association
  El    Obtain Medicare Part B coverage or co-in su rance through a        ESRD Nerwork l 3                          Renal Physicians Association
        private carrier.                                                   ESRD Nerwork l 8                          TronsPocific Renal Network
                                                                           NKF Council of Nephrology
  ril   Inform the facility business office of all health insurance pro-      Social Workers
        g rams and policies from which you receive d irect payment for
        services in the trea tment of kidney disease.
  c     Pay the d ialysis facil ity and doctor when you receive payments
        from your health insura nce company or med ical policies.
                                        DR MONTOYA'S CHARGES MODERATE
                                                                                                                MEDICARE
DESCRIPTION                                   REQUIREMENTS                                    CPT               ALLOWABLE RATE
                                              1. A,Comprehenslve h~tory 2. A
                                              comprehensive exam 3. Medlcal Decision
INPATIENT ADMISSION MODERATE                  making of moderate complexity                             99222 $            134.03
                                              1. An expanded problem focused Interval
                                              history 2. An expanded problem focused
                                              examination 3. Medl~I decision making of
INPATIENT FOLLOW UP MODERATE                  moderate complexity                                       99232 $             70.76
                                              1. An expanded problem focused interval
                                              history 2. An expanded problem focused
                                              e~mlnatlon ~- Medtcal decision making of
INh-n lENT FOLLOW UP MODERATE                 moderate complexity                                       99232   s           70.76
                                              1. Final E><am 2. Discussion of hospital stay
                                               3. Instructions for continuing care to all
                                               relevant caregivers 4. preparation of
                                               discharge records 5. Presc:iptlons and
INPATIENT DISCHARGE less than 30 min           Referral forms                                           99238 $·            7058
                                                                                                                $          346.13
                                        HOSPITALIST OIARGES COMPREHENSIVE
                                                                                                                MEDICARE
DESCRIPTION                                                                                   CPT               ALLOWABLE RATE
                                               1; A comprehensive history 2. A
        .                                      comprehensive exam 3. Medical Decision
INPATIENT ADMISSION COMPREHENSIVE              making of high complexity                                99223 $:           198.47
                                               1. A detailed interval history 2. A detailed         -
                                               e;xamlnation 3. Medical decision making of
 U~-PATJENT FOLLOW UP COMPREHENSIVE            high complexJty                                          99233 $            101.94
                                               +A detailed Interval history 2. A det2lled
                                               ~aminatlon 3. Medical decision making of
 INPATIENT FOLLOW UP COMPREHENSIVE             high complexity                                          99233 $            101.94
                                               1. Final Exam 2. Discussion of hospital stay
                                               3. Instructions for continuing care to all
                                               relevant caregivers 4. preparation of
                                                ~ischarge records 5. Prescfptlons and
 INPATIENT DISCHARGE more than 30 min           Referral forms                                          99239 $            104.50
                                                                                                                 $         506.85

                                                TOTAL DIFFERENCE                                                 $         (160.72)

                                                                            269 ·
          Difference between Dr. Montoya, Independent physician billing and hospital stay         $      100     .I
          for average of 4 days for an ln·patient at SACMC with Dr. Montoya, b1111ng
          medicine at the moderate level compared to Dr. Brewer and the Hospitalist billing
          comprehensive.
          Multiply average admissions per day-4                                                   $      400
          Multiply for one year                                                                   $   146,000
          Multiply for total number of Independent physicians affected by Hospltallsts'           $ 1,460,000
          pattern of restraint -10% {10)                                                      I
          Multiply by number of years - 8 for one hospital                                    ; $ 11,680,000
         . Multiply by 200 Hospitals                                                              $235,600,000



i' • .
 STATB OP TEXAS      §
                     §                                  AFFIDAVIT
 COUNTY OF TOM OREEN §

      ·BB.FORE MB the undersigned authority appeared John Hunt, M.D. and after bejng duly
 nwom under oath stat~d.          ·

         "My name is Johu Hunt, M.D. I have knowledge of all the f,iots oftbls affidavit and all
 facts aro within my personal knowledge tntc and ~on·eot end that I was involved with. facts
 stated.

         "J was on the staff of San Angelo Communlty Medical Center whcm Dr. Brewer was
 b.r~~t ~~ t.~ _he~~. :uP. ~e ~~p!ta,list .~ervice. att~ ~tnergenc_y room of San Angelo_ Community
Medical Center. San Angelo Comt\\1.tnlty Medical Center had a call liaf in the emergency· room.
that listed on•oall physicians to be referred patients. This list was kept pursuant to Medicare
regulations. The lt$t was to be followed pursuant to the Medicare regulations unless the patient
requested a different physicjan. I teamed of the whisper campa.i1t1 against Or. Montoya that he
was- not to be r~.fetTed patients by the emergency room and hospftalist. Dr, Montoya ls an
independm\t plwsicim Until 01', Brewer came to San Angelo Community Medical Center the
indepetidcnt.phy,Jclans would rcoeivo referrals from.hospftallsts. Dr. Brewer lead a campaign to
not use lndependent physicians. Independent physicians are physicians that do work for or are
affiliated with the hospital owned groups.

           Further afflant saith not."
           Signed this 11 CJ, day of ..Tanuary, 2016.




       Subscribed and sworn to me the undersigned notary by John Hunt. M.D. on the l 1111 day
of January, 2016.




                                                                    1
                                                                        a'
                                                                         I
                                                                                 JAMIE L, 8~NCHEZ
                                                                             Notcrv PubUC, State ot Texaa
                                                                               My comm111ron f:,iptre,
                                                                                    Julv H. 2016




                              £;1,,'6/+d 271
TAB NO. 13
                                           Tex. R. Civ. P. 91a
                             This document is current through September 10, 2016


Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE > PART II. RULES
OF PRACTICE IN DISTRICT AND COUNTY COURTS > SECTION 4. Pleading > C. PLEADINGS
OF DEFENDANT




Rule 91a Dismissal of Baseless Causes of Action
  and Grounds.        -Except in a case brought under the Family Code or a case governed by Chapter 14 of the
      Texas Civil Practice and Remedies Code, a party may move to dismiss a cause of action on the grounds
      that it has no basis in law or fact. A cause of action has no basis in law if the allegations, taken as true,
      together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A
      cause of action has no basis in fact if no reasonable person could believe the facts pleaded.
      --A motion to dismiss must state that it is made pursuant to this rule, must identify each cause of action to
      which it is addressed, and must state specifically the reasons the cause of action has no basis in law, no
      basis in fact, or both.
  and Ruling.         -A motion to dismiss must be:
      (a) filed within 60 days after the first pleading containing the challenged cause of action is served on the
          movant;
      (b) filed at least 21 days before the motion is heard; and
      (c) granted or denied within 45 days after the motion is filed.
  Time for Response.           -Any response to the motion must be filed no later than 7 days before the date of
      the hearing.
      t; Withdrawal of
      (a) The court may not rule on a motion to dismiss if, at least 3 days before the date of the hearing, the
          respondent files a nonsuit of the challenged cause of action, or the movant files a withdrawal of the
          motion.
      (b) If the respondent amends the challenged cause of action at least 3 days before the date of the hearing,
          the movant may, before the date of the hearing, file a withdrawal of the motion or an amended motion
          directed to the amended cause of action.
      (c) Except by agreement of the parties, the court must rule on a motion unless it has been withdrawn or
          the cause of action has been non suited in accordance with {a) or {b). In ruling on the motion, the
          court must not consider a nonsuit or amendment not filed as permitted by paragraphs {a) or {b).
      (d) An amended motion filed in accordance with {b) restarts the time periods in this rule.
   Hearing; No Evidence Cons/dered.-Each party is entitled to at least 14 days' notice of the hearing on the
      motion to dismiss. The court may, but is not required to, conduct an oral hearing on the motion. Except
      as required by 91a.7, the court may not consider evidence in ruling on the motion and must decide the
      motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted
      by Rule 59.
   Award of Costs and Attorney Fees Required.-Except in an action by or against a governmental entity or a
      public official acting in his or her official capacity or under color of law, the court must award the prevailing
                                                                                                       Page2 of2
                                               Tex. R. Civ. P. 91 a

        party on the motion all costs and reasonable and necessary attorney fees incurred with respect to the
        challenged cause of action in the trial court. The court must consider evidence regarding costs and fees in
        determining the award.
    Effect on Venue and Personal Jurisdiction.-This rule is not an exception to the pleading requirements of
        Rules 86 and 120a, but a party does not, by filing a motion to dismiss pursuant to this rule or obtaining a
        ruling on it, waive a special appearance or a motion to transfer venue. By filing a motion to dismiss. a
        party submits to the court's jurisdiction in proceedings on the motion and is bound by the court's ruling,
        including an award of attorney fees and costs against the party.
    Dismissal Procedure Cumulative.--This rule is in addition to, and does not supersede or affect, other
       procedures that authorize dismissal.

History


Added    by   Texas     Supreme     Court,   Misc.    Docket    No.    13-9022,    effective   March     1,   2013.


EDITOR'S NOTE. --


Texas Supreme Court Misc. Docket No. 13-9022 provides: "Rule of Civil Procedure 91a and Rule of Evidence
902(10)(c) apply to all cases, including those pending on March 1, 2013. 11
Comment to 2013 change by G.O. 13-9022 Rule 91a is a new rule implementing section 22.004/q) of the Texas
Government Code, which was added in 2011 and calls for rules to provide for the dismissal of causes of action that
have no basis in law or fact on motion and without evidence. A motion to dismiss filed under this rule must be
ruled on by the court within 45 days unless the motion, pleading, or cause of action is withdrawn, amended, or non
suited as specified in 91a.5. If an amended motion is filed in response to an amended cause of action in
accordance with 91a.5(b), the court must rule on the motion within 45 days of the filing of the amended motion
and the respondent must be given an opportunity to respond to the amended motion. The term "hearing" in the rule
includes both submission and an oral hearing. Attorney fees awarded under 91 a. 7 are limited to those associated
with challenged cause of action, including fees for preparing or responding to the motion to dismiss.
TABN0.14
Texas Statutes
Civil Practice and Remedies Code
Title 2. Trial, Judgment, And Appeal
Subtitle B. Trial Matters
Chapter 27. Actions Involving The Exercise Of Certain Constitutional Rights
Current with legislation passed during the 2015 Regular Session effective through 1/1/2016

Browse this section
§ 27.001. Definitions


In this chapter:


      11
(1)    Communication 11 includes the making or submitting of a statement or
      document in any form or medium, including oral, visual, written,
      audiovisual, or electronic.

(2) "Exercise of the right of association" means a communication between
    individuals who join together to collectively express, promote, pursue, or
    defend common interests.

(3) "Exercise of the right of free speech" means a communication made in
    connection with a matter of public concern.

(4) "Exercise of the right to petition" means any of the following:
           (A) a communication in or pertaining to:
                 (i) a judicial proceeding;

                 (ii) an official proceeding, other than a judicial proceeding, to administer the
                      law;

                 (iii) an executive or other proceeding before a department of the state or federal
                       government or a subdivision of the state or federal government;

                 (iv) a legislative proceeding, including a proceeding of a legislative committee;

                 (v) a proceeding before an.entity that requires by rule that public notice be given
                     before proceedings of that entity;

                 (vi) a proceeding in or before a managing board of an educational or
                      eleemosynary institution supported directly or indirectly from public
                 revenue;

           (vii) a proceeding of the governing body of any political subdivision of this
                 state;

           (viii) a report of or debate and statements made in a proceeding described by
                  Subparagraph (iii), (iv), (v), (vi), or (vii); or

           (ix) a public meeting dealing with a public purpose, including statements and
                discussions at the meeting or other matters of public concern occurring at
                the meeting;

     (B) a communication in connection with an issue under consideration or review by a
         legislative, executive, judicial, or other governmental body or in another
         governmental or official proceeding;

     (C) a communication that is reasonably likely to encourage consideration or review of
         an issue by a legislative, executive, judicial, or other governmental body or in
         another governmental or official proceeding;

     (D) a communication reasonably likely to enlist public participation in an effort to effect
         consideration of an issue by a legislative, executive, judicial, or other governmental
         body or in another governmental or official proceeding; and

     (E) any other communication that falls within the protection of the right to petition
         government under the Constitution of the United States or the constitution of this
         state.


(5) "Governmental proceeding" means a proceeding, other than a judicial
    proceeding, by an officer, official, or body of this state or a political
    subdivision of this state, including a board or commission, or by an officer,
    official, or body of the federal government.

(6) "Legal action" means a lawsuit, cause of action, petition, complaint, cross-
    claim, or counterclaim or any other judicial pleading or filing that requests
    legal or equitable relief.

(7) "Matter of public concern" includes an issue related to:
     (A) health or safety;

     (B) environmental, economic, or community well-being;
      (C) the government;

      (D) a public official or public figure; or

      (E) a good, product, or service in the marketplace.


(8) "Official proceeding" means any type of administrative, executive,
    legislative, or judicial proceeding that may be conducted before a public
    servant.

(9) "Public servant" means a person elected, selected, appointed, employed, or
    otherwise designated as one of the following, even if the person has not yet
    qualified for office or assumed the person's duties:
      (A) an officer, employee, or agent of government;

      (B) ajuror;

      (C) an arbitrator, referee, or other person who is authorized by law or private written
          agreement to hear or determine a cause or controversy;

      (D) an attorney or notary public when participating in the performance of a
          governmental function; or

      (E) a person who is performing a governmental function under a claim of right but is not
          legally qualified to do so.

Cite as Tex. Civ. Prac. and Rem. Code § 27.001

History. Added by Acts 2011, 82nd Leg., R.S., Ch. 341, Sec. 2, eff. June 17, 2011.



Browse this section     I Top
§ 27.002. Purpose


The purpose of this chapter is to encourage and safeguard the constitutional
rights of persons to petition, speak freely, associate freely, and otherwise
participate in government to the maximum extent permitted by law and, at the
same time, protect the rights of a person to file meritorious lawsuits for
demonstrable injury.
Cite as Tex. Civ. Prac. and Rem. Code § 2 7.002

History. Added by Acts 2011, 82nd Leg., R.S., Ch. 341, Sec. 2, eff. June 17, 2011.



Browse this section I Top
§ 27.003. Motion To Dismiss



(a) If a legal action is based on, relates to, or is in response to a party's
    exercise of the right of free speech, right to petition, or right of association,
    that party may file a motion to dismiss the legal action.

(b) A motion to dismiss a legal action under this section must be filed not later
    than the 60th day after the date of service of the legal action. The court
    may extend the time to file a motion under this section on a showing of
    good cause.

(c) Except as provided by Section 27.006(b), on the filing of a motion under
    this section, all discovery in the legal action is suspended until the court
    has ruled on the motion to dismiss.
Cite as Tex. Civ. Prac. and Rem. Code § 27.003

History. Added by Acts 2011, 82nd Leg., R.S., Ch. 341, Sec. 2, eff. June 17, 2011.



Browse this section    I Top
§ 2 7.004. Hearing



(a) A hearing on a motion under Section 27.003 must be set not later than the
    60th day after the date of service of the motion unless the docket
    conditions of the court require a later hearing, upon a showing of good
    cause, or by agreement of the parties, but in no event shall the hearing
    occur more than 90 days after service of the motion under Section 27.003,
    except as provided by Subsection (c).
(b) In the event that the court cannot hold a hearing in the time required by
    Subsection (a), the court may take judicial notice that the court's docket
    conditions required a hearing at a later date, but in no event shall the
    hearing occur more than 90 days after service of the motion under Section
    27.003, except as provided by Subsection (c).

(c) If the court allows discovery under Section 2 7.006(b), the ~ourt may extend
    the hearing date to allow discovery under that subsection, but in no event
    shall the hearing occur more than 120 days after the service of the motion
    under Section 27.003.
Cite as Tex. Civ. Prac. and Rem. Code § 27.004

History. Amended by Acts 2013, 83rd Leg. - Regular Session, ch. 1042, Sec. 1, eff. 6/14/2013.


Added by Acts 2011, 82nd Leg., R.S., Ch. 341, Sec. 2, eff. June 17, 2011.



Browse this section     I Top
§ 27.005. Ruling



(a) The court must rule on a motion under Section 27.003 not later than the
    30th day following the date of the hearing on the motion.

(b) Except as provided by Subsection (c), on the motion of a party under
    Section 27.003, a court shall dismiss a legal action against the moving
    party if the moving party shows by a preponderance of the evidence that
    the legal action is based on, relates to, or is in response to the party's
    exercise of:
      ( 1) the right of free speech;

      (2) the right to petition; or

      (3) the right of association.


(c) The court may not dismiss a legal action under this section if the party
    bringing the legal action establishes by clear and specific evidence a prima
    facie case for each essential element of the claim in question.

(d) Notwithstanding the provisions of Subsection (c), the court shall dismiss a
    legal action against the moving party if the moving party establishes by a
    preponderance of the evidence each essential element of a valid defense to
    the nonmovant's claim.
Cite as Tex. Civ. Prac. and Rem. Code § 27.005

History. Amended by Acts 2013, 83rd Leg. - Regular Session, ch. 1042, Sec. 2, eff. 6/14/2013.


Added by Acts 2011, 82nd Leg., R.S., Ch. 341, Sec. 2, eff. June 17, 2011.



Browse this section    I Top
§ 2 7.006. Evidence



(a) In determining whether a legal action should be dismissed under this
    chapter, the court shall consider the pleadings and supporting and
    opposing affidavits stating the facts on which the liability or defense is
    based.

(b) On a motion by a party or on the court's own motion and on a showing of
    good cause, the court may allow specified and limited discovery relevant to
    the motion.
Cite as Tex. Civ. Prac. and Rem. Code § 2 7.006

History. Added by Acts 2011, 82nd Leg., R.S., Ch. 341, Sec. 2, eff. June 17, 2011.



Browse this section I Top
§ 27.007. Additional Findings
(a) At the request of a party making a motion under Section 27.003, the court
    shall issue findings regarding whether the legal action was brought to deter
    or prevent the moving party from exercising constitutional rights and is
    brought for an improper purpose, including to harass or to cause
    unnecessary delay or to increase the cost of litigation.

(b) The court must issue findings under Subsection (a) not later than the 30th
    day after the date a request under that subsection is made.
Cite as Tex. Civ. Prac. and Rem. Code § 27.007

History. Added by Acts 2011, 82nd Leg., R.S., Ch. 341, Sec. 2, eff. June 17, 2011.



Browse this section    I Top
§ 2 7.008. Appeal



(a) If a court does not rule on a motion to dismiss under Section 27.003 in the
    time prescribed by Section 27.005, the motion is considered to have been
    denied by operation of law and the moving party may appeal.

(b) An appellate court shall expedite an appeal or other writ, whether
    interlocutory or not, from a trial court order on a motion to dismiss a legal
    action under Section 27.003 or from a trial court's failure to rule on that
    motion in the time prescribed by Section 27.005.

(c) An appeal or other writ under this section must be filed on or before the
    60th day after the date the trial court's order is signed or the time
    prescribed by Section 27.005 expires, as applicable.
Cite as Tex. Civ. Prac. and Rem. Code § 27.008

History. Amended by Acts 2013, 83rd Leg. - Regular Session, ch. 1042, Sec. 5, eff. 6/14/2013.


Added by Acts 2011, 82nd Leg., R.S., Ch. 341, Sec. 2, eff. June 17, 2011.
Browse this section I Top
§ 27.009. Damages And Costs



(a) If the court orders dismissal of a legal action under this chapter, the court
    shall award to the moving party:
     ( 1) court costs, reasonable attorney's fees, and other expenses incurred in defending
          against the legal action as justice and equity may require; and

     (2) sanctions against the party who brought the legal action as the court determines
         sufficient to deter the party who brought the legal action from bringing similar
         actions described in this chapter.


(b) If the court finds that a motion to dismiss filed under this chapter is
    frivolous or solely intended to delay, the court may award court costs and
    reasonable attorney's fees to the responding party.
Cite as Tex. Civ. Prac. and Rem. Code § 27.009

History. Added by Acts 2011, 82nd Leg., R.S., Ch. 341, Sec. 2, eff. June 17, 2011.



Browse this section I Top
§ 27.01 0. Exemptions



(a) This chapter does not apply to an enforcement action that is brought in the
    name of this state or a political subdivision of this state by the attorney
    general, a district attorney, a criminal district attorney, or a county attorney.

(b) This chapter does not apply to a legal action brought against a person
    primarily engaged in the business of selling or leasing goods or services, if
    the statement or conduct arises out of the sale or lease of goods, services,
    or an insurance product, insurance services, or a commercial transaction in
    which the intended audience is an actual or potential buyer or customer.

(c) This chapter does not apply to a legal action seeking recovery for bodily
    injury, wrongful death, or survival or to statements made regarding that
    legal action.

(d) This chapter does not apply to a legal action brought under the Insurance
    Code or arising out of an insurance contract.
Cite as Tex. Civ. Prac. and Rem. Code § 27.010

History. Amended by Acts 2013, 83rd Leg. - Regular Session, ch. 1042, Sec. 3, eff. 6/14/2013.


Added by Acts 2011, 82nd Leg., R.S., Ch. 341, Sec. 2, eff. June 17,2011.



Browse this section I Top
§ 27.011 . Construction



(a) This chapter does not abrogate or lessen any other defense, remedy,
    immunity, or privilege available under other constitutional, statutory, case,
    or common law or rule provisions.

(b) This chapter shall be construed liberally to effectuate its purpose and intent
    fully.
Cite as Tex. Civ. Prac. and Rem. Code§ 27.011

History. Added by Acts 2011, 82nd Leg., R.S., Ch. 341, Sec. 2, eff. June 17, 2011.
TAB NO. 15
In re Memorial Hermann Hospital System, ••• S.W.3d -          (2015)



                                                                   involving a heart surgeon who claims his former hospital
                  2015 WL 2438752
                                                                   retaliated against him for joining a competing hospital-
    Only the Westlaw citation is currently available.              we must determine whether either the medical committee
                                                                   privilege or the medical peer review committee privilege
     NOTICE: THIS OPINION HAS NOT BEEN                             protects certain documents from disclosure. The trial court
     RELEASED FOR PUBLICATION IN THE                               concluded the documents sought were discoverable, and the
 PERMANENT LAW REPORTS. UNTIL RELEASED,                            court of appeals denied relief, prompting the parties resisting
 ITIS SUBJECTTO REVISION OR WITHDRAWAL.                            production to seek mandamus relief here. We hold that some
                                                                   of the documents are protected, and we conditionally grant
                 Supreme Court of Texas.                           mandamus relief as to them. But we are unconvinced that
                                                                   the remainder of the documents are confidential under either
      In re Memorial Hermann Hospital System;
                                                                   privilege.
       Memorial Hermann Physician Network;
        Michael Macris, M.D.; Michael Macris,
       M.D., P.A.; and Keith Alexander, Relators
                                                                                        BACKGROUND
        NO. 14-0171    Argued Februacy 25,
                                                                   Plaintiffs Miguel A. Gomez, ill, M.D. and Miguel A. Gomez,
   2015      OPINION DELIVERED: May 22, 2015
                                                                   M.D., P.A. (collectively, "Dr. Gomez") filed suit against
ON PETITION FOR WRIT OF MANDAMUS.                                  defendants Memorial Hermann Hospital System, 2 Memorial
                                                                   Hermann Physician Network, Michael P. Macris, M.D.,
Attorneys and Law Firms
                                                                   Michael P. Macris, M.D., P.A., 3 and Keith Alexander 4
Donald P. Wilcox, Attorney, Texas Medical Association, 401         (collectively, "defendants" or "Memorial Hermann") on
West 15th Street, 10th Floor, Austin TX 78701-1632, for            September 17, 2012. Dr. Gomez's original petition asserted
Amicus Curiae Texas Medical Association.                           causes of action for business disparagement, defamation,
                                                                   tortious interference with prospective business relations, and
Kimberly Rae Daspit Goodling, Doyle Raizner LLP, 1221              improper restraint of trade under the Texas Free Enterprise
McKinney, Suite 4100, One Houston Center, Houston TX               and Antitrust Act of 1983 ("TFEAA").
77010, Michael P. Doyle, Doyle Raizner LLP, 2402 Dunlavy
Street, Houston TX 77006, Peter M. Kelly, Kelly, Durham &          Dr. Gomez is a cardiothoracic surgeon who practiced
Pittard, L.L.P., 1005 Heights Boulevard, Houston TX 77008,         at Memorial Hermann Memorial City Medical Center
Attorneys, for Real Party in Interest Miguel A. Gomez, III,        ("Memorial City") 5 from 1998 until 2012 when he resigned
M.D. and Miguel A. Gomez, M.D., P.A.
                                                                   his privileges with Memorial City. 6 During his years of
Jesse Coleman, Robert J. Swift, Warren Szutse Huang,               practice at Memorial City, Dr. Gomez built a reputation in
Fulbright & Jaworski LLP, 1301 McKinney, Suite 5100,               the "West Houston and Katy community" for "quality patient
Houston TX 77010-3095, Attorneys, for Relator Memorial             care, technical excellence, and outstanding professionalism in
Hermann Hospital System, Memorial Hermann Physician                heart and general surgery."
Network; Michael Macris, M.D.; Michael Macris, M.D.,
P.A.; and Keith Alexander.                                         Dr. Gomez's "skills and specialized abilities" for patients
                                                                   who require heart and general surgeries range from" 'basic'
Opinion                                                            open heart surgery to advanced robotic-assisted surgical
                                                                   procedures." Robotic heart surgery "eliminates the need to
Justice Willett delivered the opinion of the Court.                mechanically crack open a patient's chest." Robotic heart
                                                                   surgery always involves significantly less recovery time than
 *1 A decade ago, we observed: "While the medical
                                                                   its non-robotic surgical analogue, and depending on the
privileges are important in promoting free discussion in the
                                                                   particular procedure, can spare the patient up to six days of
evaluation of health care professionals and health services, the
                                                                   recovery time in the hospital. Robotic heart surgery therefore
right to evidence is also important, and therefore privileges
                                                                   has the potential to save an individual patient $50,000 or more
must be strictly construed." 1 In this original proceeding-
                                                                   in medical expenses.



WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.
In re Memorial Hermann Hospital System, -S.W.3d-(2015)


                                                                    assisted heart surgeries. Memorial City faced sharing, or
 *2 In the Houston medical community, Dr. Gomez                     worse, losing that distinction to Methodist West.
"pioneer[ed] implementation of 'off-pump' surgery and
robotic-assisted heart surgeries." Memorial City heavily            When the defendants learned that Dr. Gomez was willing
promoted robotic heart surgery as well as Dr. Gomez himself         to associate himself with Methodist West, the defendants
-the only heart surgeon at Memorial City who was capable            began conducting a "whisper campaign" against Dr. Gomez.
of performing robotic heart surgeries. The hospital invested in     According to Dr. Gomez, the purpose of the campaign was "to
a million dollar "DA VINCI" machine, and spent significant          cast doubt on robotic heart surgery procedures," throughout
advertising dollars promoting the robotic-assisted surgical         the entire city of Houston and "evaporate" the "robotic heart
procedures.                                                         surgery market." If the campaign was successful, it would
                                                                    inoculate Memorial City from the advantage Methodist West
Referrals from other physicians are extremely important to          would otherwise gain from the ability to offer the superior
surgeons and specialists. The primary means for a physician         procedure.
"to build his practice is ... actually going out on his own
to doctor's offices, meeting the doctors, [and] developing          Rumors began spreading across the Memorial City campus
relationships" in order to get referrals from physicians. The       that Dr. Gomez was "having problems" with his mortality
success of a surgeon's practice depends on his ability to attract   rate, and the marketing director at Memorial City did an
referrals, and cardiologists are a cardiovascular surgeon's         "about-face" regarding Dr. Gomez. Portia Willis, who was
primary referral source. In turn, the surgeon's decision to         then employed in Memorial City's marketing department,
perform his surgeries at one hospital over another directly         had scheduled speaking engagements and other promotional
impacts the profitability of the hospitals.                         engagements for Dr. Gomez on behalf of Memorial City. But
                                                                    amidst the rumors, Ms. Willis was told not to push forward
In 2009, another hospital-Methodist West Houston Hospital           with any type of marketing or promotion of Dr. Gomez
-was in the process of opening, which caused a change in            indefinitely. Although the reasons for the marketing hiatus
the atmosphere at Memorial City. There was a growing fear           were not explained, Ms. Willis had the impression that the
at Memorial City that staff would leave to go to Methodist          move was related to the rumors that Dr. Gomez was "a crappy
West. Around this time, the then-CEO of Memorial City and           surgeon." By this point, rumors had become "rampant" that
the Chief of Staff 7 met with at least one of Memorial City's       Dr. Gomez "wasn't the surgeon that [the Hospital workers]
physicians, Dr. Jo Pollack, in order to express disapproval of      thought he was," and the hospital's employees began to
Dr. Pollack's pattern of referring her patients to non-affiliated   wonder how much longer Dr. Gomez's practice could endure.
facilities and physicians. According to Dr. Pollack's affidavit,
she was told she would be "committing political suicide" and         *3 At a "Cardiovascular and Thoracic CPC" meeting on
her practice "could be in jeopardy" if she did not refer her        November l, 2011, Dr. Macris displayed "false data and
patients to the Memorial City affiliated medical oncologists,       statements regarding Dr. Gomez's practice and mortality
radiation oncologists and imaging. Memorial City also began         rates of his patients to an entire room filled with Dr.
holding "Town Hall" meetings in order to "gain information          Gomez's professional colleagues, intending that it be
about who wanted to leave and to attempt to persuade people         thereafter widely disseminated." The presentation "create[d]
to stay at Memorial City."                                          the appearance that patients were more likely to die in
                                                                    Dr. Gomez's care." Dr. Macris had "manipulated" the
Of the heart surgeons who practiced at Memorial City, Dr.           presented data, eschewing generally accepted methodologies
Gomez was the first to agree to practice at Methodist West.         for proper peer review comparison as well as basic scientific
Dr. Gomez asserts that, because of his complaints about             principles. Although the "true" peer review committee at
staffing and equipment dysfunctions as well as Memorial             Memorial Hermann 8 intervened and ultimately determined
City's priorities regarding patient care, Memorial City knew        Dr. Macris's comparative data could not be relied upon for any
he would perform his surgeries at Methodist West in the             legitimate purpose, the defendants continued to disseminate
future. Consequently, despite having invested heavily in            the manipulated data within the medical community. This
promoting robotic-assisted heart surgery, Memorial City             spread the false impression of Dr. Gomez's practice. After
would no longer be the sole Houston hospital offering robotic-      Dr. Gomez's abilities were assessed in the cardiology section




WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
In re Memorial Hermann Hospital System, -S.W.3d-(2015)


meeting, his "referral patterns were ruined," and he lost his      the only reasonable conclusion on such matters. 16 A less
status as one of the most sought-after surgeons.                   deferential standard applies to the trial court's determination
                                                                   of the legal principles governing the discovery, however. 17
At a January 2012 meeting, Mr. Alexander publicly ridiculed
Dr. Gomez's skills as a heart surgeon. Mr. Alexander let the
physicians, nurses, and administrators in the room "know that      II. The trial court did not abuse its discretion in holding
he had targeted Dr. Gomez because of his affiliation with          that the "anticompetitive action" exception to the
Methodist West." Mr. Alexander "made clear ... he would            medical peer review committee privilege applied.
not tolerate physicians taldng business to Methodist West."
Destroying Dr. Gomez's reputation "served as a preemptive          A. Under certain circumstances, the medical peer review
warning" to other physicians considering an affiliation with       committee privilege limits the accessibility of the records
Methodist West.                                                    of, proceedings of, and communications to a medical
                                                                   peer review committee.
Dr. Gomez brought suit on the claims described above                *4 A medical peer review committee includes "a committee
and moved to compel the production of certain documents.           of a health care entity [including a hospital licensed under
Memorial Hermann asserted the documents were protected             Chapter 241 or 577 of the Health and Safety Code] ... or
from discovery under the medical committee privilege and           the medical staff of a health care entity" that (1) "operates
the medical peer review committee privilege. Following an in       under written bylaws" approved by either the policy-making
camera inspection, the trial court ordered Memorial Hermann        or governing board of the health care entity, and (2) "is
to produce certain documents. After the court of appeals           authorized to evaluate the quality of medical and health care
denied Memorial Hermann's petition for writ of mandamus, 9         services or the competence of physicians." 18
Memorial Hermann sought mandamus relief in this Court.
                                                                   "All proceedings and records of a medical peer review
                                                                   committee are confidential, and all records of, determinations
                                                                   of, and communications to a committee are privileged and
                        DISCUSSION
                                                                   are not discoverable, with certain exceptions...." 19 The
I. Standard of review                                              provision of confidentiality extends to the committee's initial
"Mandamus is proper when the trial court erroneously orders        and subsequent credentialing decisions, 20 as well as to
the disclosure of privileged information because the trial         documents "generated" by a committee or "prepared by or at
court's error cannot be corrected on appeal." 10 Pleading and           .   . of the committee
                                                                   the d1recuon             .   tior comm1ttee
                                                                                                           .   purposes."
                                                                                                                          21
producing evidence establishing the existence of a privilege       The minutes and recommendations of the committee as well
                                                        11         as the committee's inquiries about a physician to outside
is the burden of the party seeking to avoid discovery. The
party asserting the privilege must establish by testimony or       sources and responses thereto are also protected. 22 However,
affidavit a prima facie case for the privilege. 12 The party       "simply passing a document through a peer review committee
need produce "only the 'minimum quantum of evidence                does not make it privileged." 23 The privilege does not
necessary to support a rational inference that the allegation      prevent a party from discovering from a nonprivileged source
of fact is true,' " and tender the documents to the trial court,                                                        24
                                                                   material that has been presented to the committee.
at which point, "the trial court must conduct an in camera
inspection of [the] documents before deciding to compel
                                                                   Texas Occupations Code section 160.007's provisions
production." 13                                                    "expressly delineate and limit the circumstances under
                                                                   which the records of and communications to a peer
A reviewing court may not substitute its judgment for that
                                                                   review committee may [or must] be accessed." 25 The
of the trial court regarding "the resolution of fact issues
                                                                   committee may disclose its records and proceedings, and
or matters committed to the trial court's discretion." 14          communications made by the committee to other medical
"The scope of discovery and the admission of evidence is           peer review committees, appropriate governmental agencies,
principally within the discretion of the trial court." 15 The      national accreditation bodies, the Texas Medical Board,
relator must establish that the trial court failed to reach        and another state's board of registration or licensing of



WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 3
In re Memorial Hermann Hospital System, - S.W.3d -          (2015)



physicians. 26 The committee may disclose to a physician         committee privilege applies," which inherently implies a
under its review confidential infonnation relevant to the        finding that the relevant committees were medical peer
                                                                 review committees. Dr. Gomez argues that Memorial
matter without waiving confidentiality. 27 The committee
                                                                 Hennann failed to establish that the investigations were
must provide the physician with a written copy of its
                                                                 perfonned for the purpose of quality assessment, or that the
recommendation and final decision for certain actions,
                                                                 committee was established by bylaws.
including those that could result in "censure, suspension,
restriction, limitation, revocation, or denial of membership
                                                                 With one exception, 33 the medical peer review committee
or privileges in a health care entity." 28 Certain parties are
                                                                 privilege affords confidential status to the records of,
entitled to use the confidential infonnation in their defense
                                                                 proceedings of, and communications to a medical peer
or in rebuttal to such a defense. 29 Otherwise, the records      review committee regardless of whether the individual record,
and determinations of a medical peer review committee, as        proceeding, or communication relates to a peer review
well as communications to the committee, are "not subject to
                                                                 action. 34 Memorial Hennann submitted the committees'
subpoena or discovery and [are] not admissible as evidence in
                                                                 bylaws as well as affidavits stating that the committees
any civil judicial or administrative proceeding without waiver
                                                                 engaged in peer review. Although Dr. Gomez points us to
of the privilege of confidentiality executed in writing by the
                                                                 evidence to the contrary, the trial court had sufficient evidence
committee." 30                                                   before it to make a reasonable finding that the committees
                                                                 are medical peer review committees. We will not disturb that
*S However, under certain circumstances, the infonnation         finding.
may not be confidential, in which case it would not be
subject to a privilege. For example, the "records made
or maintained in the regular course of business by a             C. An "anticompetitive action" is one that requires proof
hospital ... [or] medical organization" are not covered by       of a net negative impact on competition within a defmed
section 160.007 and therefore are not confidential under         market.
that section. 31 In addition, section 160.007(b) provides a      The trial court found that the documents at issue "are relevant
limited exception to confidentiality for proceedings, records,   to an anticompetitive action." Before we can resolve the
or communications that are relevant to an anticompetitive        parties' dispute regarding the correctness of this finding, we
action. The anticompetitive action exception provides in full:   must first detennine the meaning of the statutory phrase
                                                                 "relevant to an anticompetitive action." 35
            If a judge makes a preliminary finding
            that a proceeding or record of a                     Statutory construction is a question of law we review de
            medical peer review committee or a
                                                                 novo. 36 Our objective is to determine and give effect to
            communication made to the committee
            is relevant to an anticompetitive                    the Legislature's intent, 37 and "the truest manifestation of
            action, or to a civil rights proceeding              what lawmakers intended is what they enacted." 38 Proper
            brought under 42 U.S.C. Section                      construction requires reading the statute as a whole rather than
            1983, the proceeding, record, or                     interpreting provisions in isolation. 39 "[C]ourts should not
            communication is not confidential to                 give an undefined statutory tenn a meaning out of harmony
             the extent it is considered relevant. 32            or inconsistent with other provisions, although it might be
                                                                                                                          40
                                                                 susceptible of such a construction if standing alone." "We
The parties dispute the applicability of this exception.
                                                                 presume that the Legislature chooses a statute's language with
                                                                 care," and we will not ignore the statute's use of a tenn that
B. The committees at issue are medical peer review               carries a "particular meaning." 41 "Privileges are not favored
committees.                                                                                                42
                                                                 in the law and are strictly construed."
As an initial matter, Dr. Gomez disputes that Memorial
Hennann proved the relevant committees are medical                *6 Neither section 160.007 nor any other peer
peer review committees. The trial court found "that the          review committee privilege that incorporates the phrase
anticompetitive exception to the medical peer review
                                                                 "anticompetitive action" defines the tenn. 43 Black's Law



WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                4
In re Memorial Hermann Hospital System, ••• S.W.3d •••• (2015)


Dictionary defines "anticompetitive" as "[h]aving a tendency       by the merger must be weighed against anticompetitive
to reduce or eliminate competition" in contrast to the tenn        consequences in the final determination whether the net
procompetitive. 44 Procompetitive is in tum defined as             effect on competition is substantially adverse." 56 Ultimately,
"[i]ncreasing, encouraging, or preserving competition." 45         the "use of the word 'competition' [is] a shorthand for the
Competition itself is defined as "[t]he struggle for commercial    invocation of the benefits of a competitive market," 57 and
advantage; the effort or action of two or more commercial          antitrust law acknowledges that "it is sometimes difficult to
interests to obtain the same business from third parties." 46      distinguish robust competition from conduct with long-run
The dictionary also notes that the tenn anticompetitive            anticompetitive effects." 58
"describes the type of conduct or circumstances generally
targeted by antitrust laws," 47 although the statement is "not      *7 We have no trouble holding that the Legislature intended
                                                                   the tenn "anticompetitive" in section 160.007 to denote an
purely definitional." 48
                                                                   overall substantially adverse effect on competition, rather
                                                                   than the existence of some negative effects. However, we
This framework accurately maps out the meaning afforded
                                                                   reject Memorial Hennann's characterization of the tenn
the tenn "anticompetitive" in court decisions in the antitrust
                                                                   "anticompetitive action" as synonymous with "antitrust
context. As noted by the Supreme Court of the United
                                                                   action." Although we agree that the tenn anticompetitive
States, to restrain competition is the "very essence" of every
                                                                   "describes the type of conduct or circumstances generally
agreement and regulation of trade. 49 Therefore, regarding
                                                                   targeted by antitrust laws," 59 the tenn itself is broader
restraints of trade, "[t]he true test of legality is whether the
                                                                   because the law of antitrust does not encompass all conduct
restraint imposed is such as merely regulates and perhaps
                                                                   that could substantially lessen competition in a particular
thereby promotes competition or whether it is such as
                                                                   market. For example, certain conduct-regardless of its
may suppress or even destroy competition." 50 As such, an          overall impact on competition-is immune from antitrust law
"abbreviated or 'quick-look' analysis" is appropriate only
                                                                   under the state action doctrine, 60 the exemption for political
when "an observer with even a rudimentary understanding
of economics could conclude that the arrangements in               activity, 61 or the exemptions, both implicit and explicit, for
question would have an anticompetitive effect on customers         labor unions. 62 The tenns anticompetitive and antitrust are
and markets." 51 The goal of judicial scrutiny of restraints       therefore not inherently coextensive, and we cannot ignore
on trade is to "distinguish[ ] between restraints with             the Legislature's use of the broader tenn, particularly in
anticompetitive effect that are harmful to the consumer and        juxtaposition to section 160.007(b)'s specificity regarding its
restraints stimulating competition that are in the consumer's      application to civil rights proceedings. 63
best interest." 52
                                                                   However, this does not mean that a litigant may successfully
Judicial scrutiny in other areas of antitrust law confinns         rely on subsection (b) simply by adding a gratuitous
that the antitrust laws were designed as a "consumer               allegation that the conduct at issue is anticompetitive.
welfare prescription" that requires consideration of both          Section 160.007(b) requires a "preliminary finding that a
                                                                   proceeding or record of a medical peer review committee or
anticompetitive and procompetitive effects. 53 Thus, proof
                                                                   a communication made to the committee is relevant to an
that a firm's dominant position is the "consequence
                                                                   anticompetitive action" and provides that "the proceeding,
of a superior product, business acumen, or historic
                                                                   record, or communication is not confidential to the extent it is
accident"-circumstances that either benefit the consumer
or are outside the flan's control-will defeat a claim of           considered relevant." 64 Relevance cannot be detennined in
                                                                   isolation of the elements of an asserted cause of action.
monopoly. 54 Claims of attempted monopolization require
the further showing that the defendant "pose[s] a danger of
                                                                    *8 Dr. Gomez's contrary construction treats the tenns action
monopolization," because judging unilateral conduct absent
actual potential to achieve a monopoly would "risk that            and conduct as synonymous, 65 but as we have previously
the antitrust laws will dampen the competitive zeal of a           noted, this Court has "equated 'action' with 'suit.' " 66
single aggressive entrepreneur." 55 Similarly, in scrutinizing     Although we have not previously discussed the meaning of
a proposed merger, the "economic efficiencies produced             the word action in this particular context, we have held that
                                                                   generally the term is "synonymous with 'suit,' which is a


WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 5
In re Memorial Hermann Hospital System, -S.W.3d-(2015)



demand of one's rights in court." 67 Had the Legislature             property has been injured by reason of any conduct declared
intended the focus to be on the defendant's conduct apart from       unlawful" in the Act. 80 This requires a plaintiff to prove
any asserted cause of action, it would have been more natural        "antitrust injury, which is to say injury of the type the
to say "an anticompetitive act" or "anticompetitive conduct."        antitrust laws were intended to prevent and that flows from
But the Legislature chose the term "action," which is a well-        that which makes defendants' acts unlawful." 81 Furthermore,
                                                               68
established legal term of art synonymous with lawsuit.               pennissible recovery is limited to "actual damages sustained"
This meaning also better fits the parallelism of the phrases         as a result of the unlawful conduct. 82 The damages must
"anticompetitive action" 69 and "a civil rights proceeding" 70       "reflect the anticompetitive effect either of the violation or of
in subsection (b).                                                   anticompetitive acts made possible by the violation" 83 -in
                                                                     other words, "the type of loss that the claimed violations of
At any rate, the exception's reference to relevance confirms
                                                                     the antitrust laws would be likely to cause." 84
that the Legislature intended the term action to refer to a "civil
or criminal judicial proceeding." 71 Our rules of evidence           In contrast, tortious interference with business relations
provide that evidence is relevant if "it has any tendency            "provides a remedy for injurious conduct that other tort
to make a fact more or less probable than it would be                actions might not reach ... but only for conduct that is
without the evidence" and if that "fact is of consequence in         already recognized to be wrongful under the common law
determining the action." 72 A purely voluntary showing that          or by statute." 85 Thus, in Wal-Mart Stores, Inc. v. Sturges,
the defendant's conduct is anticompetitive cannot constitute         we provided the example of "a defendant who threatened
a fact of consequence in a lawsuit-the limited waiver of             a customer with bodily harm if he did business with the
confidentiality for proceedings, records, and communications
                                                                     plaintiff." 86 We stated that such a defendant would be
"relevant to an anticompetitive action" 73 can only apply if         liable because the defendant's "conduct toward the customer
the plaintiff asserts a cause of action that requires proof of       -assault-was independently tortious," even though the
anticompetitive conduct or effects. 74                               plaintiff would not be able to sue the defendant for the assault
                                                                     itself. 87
In light of the rarity of claims that require proof of a net
anticompetitive effect, as a practical matter, our interpretation    In sum, we hold that the exception to the medical peer review
will not greatly expand the scope of an "anticompetitive             committee privilege for anticompetitive actions applies when
action" beyond valid antitrust claims. However, our caselaw          the plaintiff asserts a cause of action that requires proof
has already identified at least one cause of action that             that the conduct at issue has "a tendency to reduce or
potentially falls within the interstice between anticompetitive
                                                                     eliminate competition" 88 that is not offset by countervailing
and antitrust-tortious interference with prospective business
                                                                     procompetitive justifications. 89
relations. 75 As we have previously held, recovery for
tortious interference with a prospective business relation
requires a plaintiff to "prove that the defendant's conduct          D. Subsection (b) requires a plaintiff to plead, not
was independently tortious or wrongful" as an element of             present evidence of, an anticompetitive action.
the cause of action. 76 Thus, even without asserting a cause         We also reject Memorial Hermann's contention that section
of action under the TFEAA, 77 a plaintiff who asserts that           160.007(b) conditions its exception to confidentiality on
a defendant's conduct is independently wrongful because it           the plaintiffs satisfaction of an evidentiary burden. The
                                                                     Legislature knows how to provide this type of gatekeeping
violates the laws of antitrust 78 would, as part of proving
the violation, be required to show a negative effect on              function, 90 and subsection (b) is devoid of any language
competition.                                                         indicating intent to do so. The statute does not reference
                                                                     expert reports, 91 affidavits, 92 or categories of evidence
 *9 Such a plaintiff would still need to plead a valid antitrust     to be considered. 93 Significantly, other than requiring a
violation, however, he would not need to plead a valid               "preliminary finding" that the material be "relevant to
antitrust claim. 79 The TFEAA grants a private right of              an anticompetitive action," 94 subsection (b) contains no
action to bring suit, but only to persons ''whose business or
                                                                     indication of a threshold quantum of proof. 95 Determinations


WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    6
In re Memorial Hermann Hospital System, -S.W.3d--(2015)


of potential relevancy or privilege typically do not require a
litigant to produce evidence on the merits of his claim-as        E. Dr. Gomez pleaded an anticompetitive action.
                                                                  Dr. Gomez alleged that the defendants intentionally interfered
opposed to the merits of the privilege. 96 Furthermore, it is
                                                                  with his "longstanding and continuous relationships with
counter to the notion that "[a]ffording parties full discovery
                                                                  referring physicians in the West Houston and Katy medical
promotes the fair resolution of disputes by the judiciary," 97    community" and that the defendants' acts constituted a
to condition access to documents that could substantiate a        "concerted effort ... to restrain competition in and monopolize
plaintiffs claim on the plaintiffs ability to substantiate his    surgical procedures." Dr. Gomez also asserted that the
claim without the documents' aid.                                 defendants' acts "constitute illegal monopolization, attempted
                                                                  monopolization, and/or conspiracy to monopolize under
 *10 Although Memorial Hermann's concern that plaintiffs          applicable Texas law."
may circumvent the privilege through artful pleading is a
compelling one, defendants are not left without protection.       Memorial Hermann does not dispute that Dr. Gomez
First, by permitting defendants to recover costs incurred         alleged that Memorial Hermann violated the TFEAA, but
from defending against frivolous or bad faith pleadings,          rather, argues Dr. Gomez failed to plead a valid antitrust
section 160.00B(c) discourages the addition of groundless         claim. Memorial Hermann challenges the sufficiency of
allegations of injury to competition. 98 Second, nothing in       Dr. Gomez's allegations, taken as true, to establish (1) a
section 160.007 prevents defendants from seeking, as they         legally cognizable injury to competition, and (2) an adverse
do in all civil cases, to limit discovery on the grounds          effect on competition in the relevant market. The crux of
that ''the discovery sought is unreasonably cumulative or         Memorial Hermann's argument is its contention that caselaw
duplicative, or is obtain [able] from some other source that      overwhelmingly establishes that a claim for an injury to
is more convenient, less burdensome, or less expensive." 99       a single physician at a single hospital is insufficient. We
Defendants may also assert that "the burden or expense of the     disagree with Memorial Hermann's characterization of Dr.
proposed discovery outweighs its likely benefit, taking into      Gomez's allegations as well as its characterization of the law.
account the needs of the case ... the importance of the issues
                                                     I
at stake in the litigation, and the importance of the proposed     *11 We "construe the TFEAA in harmony with federal
                                                                  antitrust caselaw to promote competition for consumers'
discovery in resolving the issues." 100 Defendants may also
seek protective orders to protect themselves "from undue          benefit." 106 "Because our own caselaw is limited, we rely
burden, unnecessary expense, harassment, annoyance, or            heavily on the jurisprudence of the federal courts." 107
invasion of personal, constitutional, or property rights." 101
                                                                  The TFEAA declares that "[e]very contract, combination, or
Finally, because the statute provides that information "is        conspiracy in restraint of trade or commerce is unlawful," and
                                                                  that "it is unlawful for any person to monopolize, attempt to
not confidential to the extent it is considered relevant," 102
                                                                  monopolize, or conspire to monopolize any part of trade or
the exception's scope is still narrower than the otherwise
applicable scope of discovery, which permits discovery of         commerce." 108 As discussed above, however, the TFEAA
information that "appears reasonably calculated to lead to        does not operate as a qui tam provision, 109 but rather limits
the discovery of admissible evidence." 103 Defendants may         the ability to bring suit under the TFEAA to persons "whose
further limit the scope of discovery through the judicious use    business or property has been injured by reason of any
of special exceptions, which are "the appropriate vehicle ...     conduct declared unlawful in Subsection (a), (b), or (c) of
by which an adverse party may force clarification of vague        Section 15.05 of [the] Act." 110 Thus, courts have held that
pleadings," 104 thereby narrowing the range of facts that will    standing to pursue an antitrust suit exists only if a plaintiff
                                                                  shows (1) injury-in-fact, an injury to the plaintiff proximately
be of consequence in the action. lOS
                                                                  caused by the defendant's conduct; (2) antitrust injury; and (3)
                                                                  proper plaintiff status, which assures that other parties are not
As such, we hold that judges are to determine a subsection (b)
"preliminary finding" on the basis of the plaintiffs pleadings.   better situated to bring suit. 111
We now tum to the application of subsection (b) to Dr.
Gomez's pleadings.                                                On its own, the elimination of a single competitor does
                                                                  not constitute proof of an anticompetitive effect for every



WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 7
In re Memorial Hermann Hospital System, -- S.W.3d---(2015)



market and context. 112 Claims of improper restraint of trade      competition in that market." 125 However, the disposition
require a plaintiff to "plead ... a reduction of competition       of the question of "a dangerous probability of achieving
in the market in general and not mere injury to their own          monopoly power" is "typically one that is not resolved at the
positions as competitors in the market." 113 However, it is        pleading stage unless it is clear on the face of the complaint
also well established that the United States Supreme Court has     that the 'dangerous probability' standard cannot be met as a
"forb[idden] as a matter of law, a defense based upon a claim      matter of law." 126
that only one small firm, not competition itself, had suffered
         114                                                        *13 Here, Dr. Gomez is not complaining that the defendants
mJury,
• •    "     because "[m ]onopoIy can as sure1y thri ve by the
elimination of such small businessmen, one at a time, as it can    have prevented him from obtaining privileges at any of the
                                                                   hospitals in the area, but rather that the defendants have
by driving them out in large groups." 115
                                                                   prevented him from obtaining referrals. 127 According to Dr.
 *12 "In order to successfully allege injury to competition,       Gomez's petition, the number one source of referrals for a
a ... claimant may not merely recite the bare legal conclusion     cardiovascular surgeon is a cardiologist, and his ability to
                                                                   compete-regardless of whether he has staff privileges with
that competition has been restrained unreasonably." 116 At
                                                                   one hospital or another-is contingent upon his reputation
a minimum, the claimant must "sketch the outline of the
antitrust violation with allegations of supporting factual         with those cardiologists. 128 The alleged injury to Dr.
                                                                   Gomez's reputation is therefore not confined to a single
deta1·1." 117 Whether the practice
                               . constitutes
                                        ·         ·
                                              an improper
restraint of trade will depend upon whether the plaintiffs         hospital, 129 particularly if Dr. Gomez is able to show that
allegations "suggest[ ] a market in which the removal of           Memorial Hermann has the capacity to impact a substantial
[a single competitor] from the pool of competing sellers           number of the market's cardiologists' willingness to refer
would adversely and unreasonably affect overall competitive        patients to him. 130
conditions." 118 Under the rule ofreason, 119 courts consider
"a variety of factors, including 'specific information about the   Dr. Gomez also alleges that by disseminating false
relevant business, its condition before and after the restraint    information about his mortality rate, Memorial Hermann
was imposed, and the restraint's history, nature, and effect.'     cast doubt on robotic heart surgery procedures throughout
                                                                   Houston, inoculating itself from competition from a medical
" 120 A s sueh , "the ad equacy o f a phys1c1an
                                          . . 's contentions
                                                        .
                                                                   service that Memorial Hermann could no longer offer. The
regarding the effect on competition is typically resolved after
                                                                   deposition excerpts attached to and quoted in Dr. Gomez's
discovery, either on summary judgment or after trial." 121         petition suggest that "referral patterns changed" and that
                                                                   Dr. Gomez used to be the "Number One" physician, but
A successful claim of monopoly requires proof of "(1)              that following the conduct at issue, another physician, a Dr.
the possession of monopoly power in the relevant market
                                                                   Gibson, received more referrals. 131 Dr. Gomez also suggests
and (2) the willful acquisition or maintenance of that
                                                                   in his briefing that Dr. Macris may have improperly benefitted
power as distinguished from growth or development as
                                                                   from an increase in patients due to Dr. Gomez's decrease in
a consequence of a superior product, business acumen,
                                                                   patients.
or historic accident." 122 "The term 'relevant market'
encompasses notions of geography as well as product use,           Dr. Gomez alleges that as a result of the loss of trust in
quality, and description. The geographic market extends to         robotic heart surgery, patients would incur $50,000 or more
the 'area of effective competition' ... where buyers can turn
                                                                   in medical expenses due to longer hospital stays. 132 Dr.
                                 123
for alternate sources of supply."   Demonstrating attempted        Gomez also disputes the existence of any procompetitive
monopolization requires proof "(1) that the defendant has                                                                     133
                                                                   justifications for presenting manipulated mortality data.
engaged in predatory or anticompetitive conduct with (2) a
                                                                   As Dr. Gomez has not yet had an opportunity to obtain full
specific intent to monopolize and (3) a dangerous probability
                                                                   discovery, we are not in a position to predict whether he will
of achieving monopoly power." 124                                  ultimately be able to sustain his burden of proof on these
                                                                   issues, however, his petition sufficiently alleges an injury to
Under either claim, it is "necessary to consider the relevant
                                                                   competition under the TFEAA. 134
market and the defendant's ability to lessen or destroy



WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                8
In re Memorial Hermann Hospital System, -- S.W.3d -          (2015)


 *14 As for Memorial Hermann's arguments regarding Dr.            West, 140 Dr. Gomez could rely on the violation to show that
Gomez's identification of a relevant market in which the          the interference with his prospective business relations was
alleged injury to competition occurred, we hold that Dr.
                                                                  independently wrongful. 141
Gomez's petition sufficiently pleads viable markets. It may
be unlikely that the relevant market for a valid injury to
                                                                   *15 We hold that Dr. Gomez's petition presents multiple
competition can be limited to the market for robotic-assisted
                                                                  viable anticompetitive actions.
heart surgery. For example, if Memorial Hermann does not
have a heart surgeon capable of performing those surgeries,
then Memorial Hermann could not have hoped to capture the         F. The trial court did not abuse its discretion in making
patients who would otherwise have gone to Dr. Gomez. 135          a preliminary finding that the documents in question are
On the other hand, if those patients are willing to substitute    relevant to the anticompetitive actions pleaded by Dr.
traditional heart surgery procedures, then a cross-elasticity     Gomez.
of demand between the two types of procedures must exist,         The trial court ordered Memorial Hermann to produce a
in which case review of the competitive impact cannot be          number of documents. We review the trial court's preliminary
limited to robotic-assisted heart procedures. 136                 finding of relevance to each set of documents in the sealed
                                                                  record for an abuse of discretion. 142
However, although the trial court noted that Dr. Gomez
alleged that Memorial Hermann's actions "impacted the             Memorial Hermann argues that the various categories
referral market for heart surgeons specializing in robotic-       of documents are not relevant to Dr. Gomez's alleged
assisted heart surgeries in Houston," the trial court did not     anticompetitive action because (1) a number of the documents
base its conclusion that the anticompetitive exception applied    predate November 2011, which Dr. Gomez identified
on a finding of a particular market. Dr. Gomez's petition         in his deposition as the relevant time period for the
alleges multiple service markets, including the market for        case; (2) Dr. Gomez's action involves the purportedly
surgical procedures, the heart surgery market, and the referral   improper publication of false material through different
market. Precisely because Dr. Gomez alleged so many               peer review committees, but he has not alleged that
different potential markets for his claims-as Memorial            the documents themselves were publicly disseminated; (3)
Hermann itself complains 137 -the flaw at this stage can only     certain documents do not discuss individual or aggregated
be with the state of evidence regarding the relevant market       physician mortality rates, instead focusing on physician
and not with Dr. Gomez's pleadings. The same criticism            volume; (4) certain documents do not refer to Dr. Gomez;
applies to Memorial Hermann's complaints about Dr. Gomez          and (5) with regard to one particular slide, the slide is not
having alternatively pleaded different geographies for the        relevant to any actionable antitrust conduct under Texas
relevant market for services.                                     law. We conclude that the majority of the documents in
                                                                  the sealed record are relevant to essential elements of
Finally, Dr. Gomez's allegations suggest that Memorial            the anticompetitive causes of actions that Dr. Gomez has
Hermann targeted not only his own ability to compete for          asserted.
surgeries, but also Methodist West's competitive position.
Dr. Gomez claims the destruction of his reputation served to      Before discussing the relevance of otherwise protected
deter Memorial Hermann's other physicians from practicing         documents, however, we note that some of the documents
at Methodist West or from referring patients to physicians        included in the sealed record do not qualify for protection
                                                                  under the medical peer review committee privilege. Any
who are not affiliated with Memorial Hermann. 138 Dr.
                                                                  affidavits prepared for and submitted to the trial court are
Gomez's allegations, taken as true, suggest that Memorial
                                                                  neither records nor proceedings of the committees at issue nor
Hermann may have attempted to ( 1) intimidate a number of
                                                                  communications to that committee. They therefore receive no
physicians from making referrals to specialists at Methodist
                                                                  protection under either the medical peer review committee
West, thus cutting off Methodist West's patient base, and
                                                                  privilege or the medical committee privilege. The committee
(2) intimidate other doctors-Methodist West's "supply" for
                                                                  bylaws attached as exhibits to the affidavits also do not
its services-from practicing at Methodist West. 139 Even          qualify as a record of, proceeding of, or communication to
if Dr. Gomez himself would not have standing to bring a
                                                                  the committee, and are therefore not protected. 143 However,
suit under the TFEAA based on antitrust injury to Methodist
                                                                  the remaining documents in the sealed record are records


WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              9
In re Memorial Hermann Hospital System, -S.W.3d-(2015)


or proceedings of the committees, or communications to the         We note that the data on mortality and physician volume are
committee.                                                         associated with assigned numbers rather than the names of
                                                                   particular physicians in a number of the documents. However,
Dr. Gomez alleges that Memorial Hermann manipulated and            although Memorial Hermann would be free to present
disseminated data on his mortality rates in order to harm          evidence suggesting that the code effectively concealed the
his ability to compete for surgical procedures as well as to       physicians' identities, the existing overlap between some of
intimidate other doctors from defecting to Methodist West.         the coded and un-coded documents is sufficient to support a
As such, the withheld documents are relevant if they would         preliminary finding that the presentations' audiences as well
tend to make more or less probable Dr. Gomez's allegations         as a judicial fact finder would be able to understand which
that Memorial Hermann disseminated manipulated data on             physicians' rates and volumes appear in the documents.
Dr. Gomez's mortality rates, that the dissemination caused
Dr. Gomez's referral rates to decline, or that other doctors       Other documents are relevant because they discuss Memorial
were fearful that they could also be targeted in such a fashion.   Hermann's plans to differentiate itself from other hospitals'
These fact issues are at the core of Dr. Gomez's claims            cardiovascular surgery departments. This focus could make
that Memorial Hermann violated the TFEAA and tortiously            more or less probable the likelihood that Dr. Gomez's unique
interfered with his prospective business relations.                services were of sufficient importance to provide the impetus
                                                                   for the alleged improper conduct.
 *16 A number of the documents at issue are relevant
because they either contain data on mortality rates of             Another category of relevant documents consists of maps
cardiovascular surgeons, discuss obtaining or direct others to     that identify the locations of doctors or hospitals in the
obtain mortality rates of cardiovascular surgeons, establish       surrounding geographic area, and maps demarcating the
plans to review mortality data, or reference appropriate           geographic areas from which Memorial Hermann draws
parameters for calculating mortality data. Even if Memorial        its patients. Because they provide a basis for determining
Hermann never published some of the documents that contain         the feasibility of alternatives for patients in the area, these
data on mortality rates, the data could still be relevant to       documents-in conjunction with expert testimony-could
the veracity of any data that Memorial Hermann did publish,        make a particular geographic market for Dr. Gomez's claims
particularly if discrepancies appeared between the different       under the TFEAA more or less probable.
reports of the data. Similarly, evidence establishing that
Memorial Hermann did not follow what it knew to be the             On the other hand, Exhibit B to E. Leticia Mireles' affidavit,
appropriate parameters for calculating mortality data could        which consists of an email to a number of persons, is not
support an inference that Memorial Hermann intended to cast        relevant to Dr. Gomez's allegations. The body of the email
doubt on Dr. Gomez's ability as a surgeon.                         does not include any information that would make any of
                                                                   Dr. Gomez's allegations more or less probable. Although the
The documents discussing physician volume are relevant.            email includes an attachment, nothing before us suggests
Memorial Hermann's argument that these documents lack              that a record of the sending of this particular attachment to
any discussion of Dr. Gomez's mortality rates does not             a number of persons would make Dr. Gomez's allegations
negate the documents' potential relevance to Dr. Gomez's           more or less probable, because the attachment itself does not
allegations that he suffered a loss of referrals. The documents    contain any data about Dr. Gomez or a relevant competitive
could also tend to prove or disprove a corresponding               market. This email, appearing on pages 365-68 of the sealed
increase in referrals to Memorial Hermann's other physicians,      record, is therefore not relevant to an anticompetitive action,
which could support Dr. Gomez's allegations that Memorial          and retains its protection under the medical peer review
Hermann violated the TFEAA. Furthermore, although the              committee privilege.
data on physician volume predates the time period in which
Dr. Gomez alleges his referral rate declined, such data could       *17 In addition, the documents appearing on pages 119,
still provide a baseline for measuring the effect of the alleged   122-23, 129-30, 135,138,140,142,145, 154-55, 160-61,
conduct. Documents relating to referral patterns, either of        166-67, 174-75, 180-81, 188-89, 195-98, and 243 of the
particular physicians or Memorial Hermann itself, are also         sealed record also retain their protection under the medical
relevant for the same reasons.                                     peer review committee privilege. These documents do not
                                                                   discuss any data on mortality rates, physician volume, or



WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               10
In re Memorial Hermann Hospital System, -- S.W.3d--(2015)


referral pattern. Nor do they discuss plans to disseminate such      the same exception, 153 the "records and proceedings of a
data, any staffing concerns of the hospital, or the competitive      medical committee are confidential and are not subject to
positions of the hospital or Dr. Gomez. These documents lack
                                                                     court subpoena." 154
any apparent relevance to Dr. Gomez's claims, and we hold
the trial court therefore abused its discretion in compelling
                                                                      *18 Section 161.032 of the Health and Safety Code suggests
Memorial Hermann to produce them.
                                                                     that medical committees are at least potentially distinct

However, the trial court did not abuse its discretion in making      from medical peer review committees. 155 However, the
a preliminary finding that the other materials in the record         definitions of the two committees contain significant overlap.
are relevant to an anticompetitive action. We therefore tum to       Provided that the other statutory requirements are met, 156
whether these documents enjoy any residual protection under          the definition of a medical peer review committee includes
the medical committee privilege.                                     committees "of a health care entity, the governing board of
                                                                     a health care entity, or the medical staff of a health care
                                                                     entity." 157 But any "entity ... that provides or pays for
m. When both are applicable, the anticompetitive                     medical care or health services" and "follows a formal peer
exception to the medical peer review committee privilege
                                                                     review process to further quality medical care or health care"
limits the provision of confidentiality under the medical
committee privilege.                                                 will be considered a health care entity. 158
This question is contingent on the extent to which overlapping
provisions of two different statutes can concurrently                As such, although the committees of some health care entities

operate. 144 To the extent possible, we will construe the            may not be medical committees, 159 every committee of
different provisions in a way that harmonizes rather than            every entity listed in the definition of a medical committee
                                                                     that "follows a formal peer review process to further quality
conflicts. 145 When the provisions are irreconcilable, the
general rule is that the terms of the later-enacted statute should   medical care or health care" 160 will be considered a medical
                                                                     peer review committee-unless the committee does not
control. 146 However, conflicts between general and specific
                                                                     "operate[ ] under written bylaws approved by the policy-
provisions favor the specific, and when the literal terms of the
                                                                     making board or the governing board of the health care
two provisions cannot both be true, the terms of the specific
                                                                     entity." 161 By extension, no medical committee that satisfies
provision ordinarily will prevail. 147 We will construe the
                                                                     these two additional provisions necessary to be deemed a
general provision as controlling only when the manifest intent
                                                                     medical peer review committee can credibly claim that its
is that the general provision will prevail and the general
                                                                     records and proceedings are not governed by section 160.007
provision is also the later-enacted statute. 148
                                                                     of the Occupations Code. 162

Section 161.031 of the Health and Safety Code broadly
                                                                      *19 Here, because Memorial Hermann stipulated that the
defines a "medical committee" to include "any committee,
                                                                     relevant committees are medical peer review committees,
including a joint committee" of certain types of entities,
                                                                     the documents at issue cannot be considered confidential
including "a hospital'' or "a medical organization." 149             under section 161.032(a) of the Health and Safety Code
Medical committees may be "appointed ad hoc to conduct a             without ignoring section 160.007 of the Occupations Code.
specific investigation or established ... under the bylaws or        Memorial Hermann's argument that a document should enjoy
rules of the organization or institution." 150                       the combined protection of all applicable privileges relies on
                                                                     our previous references to section 161.032 of the Health and
The records and proceedings of a medical committee are               Safety Code and section 160.007 of the Occupations Code
governed by section 161.032 of the Health and Safety                 as "the medical committee privilege" and "the medical peer
Code. With the exception of "records maintained in the               review committee privilege," respectively. 163 However,
regular course of business by a hospital ... [or] medical            the statutes themselves confer confidentiality on records
organization," 151 medical committees and their members              and proceedings-not the committee itself. 164 Because the
may use the committee's records and proceedings "only in             records and proceedings here are subject to both sections,
the exercise of proper committee functions." 152 Subject to          both sections' provisions regarding confidentiality apply.



WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                11
In re Memorial Hermann Hospital System, --S.W.3d-(2015)



That the records and proceedings of some medical peer            committee, section 160.007(b) provides that those documents
review committees may not be considered records and              are "not confidential to the extent [they are] considered
proceedings of a medical committee-or the reverse-has no         relevant." 168 It is impossible to reconcile that provision with
bearing on the question before us, because such documents        a provision stating that the same documents "are confidential
would never be subject to both sections.                         and are not subject to court subpoena." 169 Section 160.007
                                                                 is both the later enacted statute as well as the more specific
Because the documents are subject to both sections, any
                                                                 regarding when records and proceedings are confidential. 170
reconcilable provisions will apply in concert. 165 For           We therefore hold that the records and proceedings of a dual
example, a medical committee that is also a medical peer         medical committee and medical peer review committee do
review committee could not use its records or proceedings        not enjoy any greater confidentiality under section 161 .032(a)
in the exercise of improper committee functions simply           than they do under section 160.007(b).
because section 160.007 does not explicitly forbid it. 166
By the same token, a dual medical committee and medical
peer review committee could not rely on the provision of         CONCLUSION
confidentiality in section 16I.032(a) to shirk its duty under    We hold that the trial court abused its discretion in ordering
section 160.007(d) to provide a physician with a written         Memorial Hermann to produce pages 119, 122-23, 129-30,
copy of its recommendation to suspend the physician's            135, 138, 140, 142, 145, 154-55, 160-61, 166-67, 174-
                                                                 75, 180-81, 188-89, 195-98, 243, and 365-68 of the sealed
privileges. 167
                                                                 record. We conditionally grant Memorial Hermann's writ of
                                                                 mandamus, directing the trial court to modify its discovery
However, a record or proceeding is either confidential or
                                                                 order insofar as the order compelled production of those
not; it cannot be both. As we have already discussed at
                                                                 documents. We are confident the trial court will comply, and
length, the majority of the documents that Dr. Gomez
                                                                 the writ will issue only if it does not. In all other respects,
seeks are relevant to an anticompetitive action. Because
                                                                 Memorial Hermann's petition for writ of mandamus is denied.
Memorial Hermann has stipulated that those documents
are the records and proceedings of a medical peer review


Footnotes
1      In re Living Ctrs. of Tex., Inc., 175 S.W.3d 253,258 (Tex.2005).
2      Memorial Hermann Hospital System is a business entity organized under the laws of the State of Texas that controls
       and manages a number of hospitals, out-patient facilities, and other health care seivice centers throughout the Houston
       Metropolitan area, Including Memorial Hermann Memorial City Medical Center.
3      Michael P. Maoris, M.D., P.A. is a professional association organized under the laws of Texas, and Michael P. Maoris,
       M.D. is its principal officer.
4      Mr. Alexander is the Chief Executive Officer of Memorial Hermann Memorial City Medical Center.
5      Memorial City is one of Memorial Hermann Hospital System's medical campuses.
6      The facts described in this section are drawn from allegations in Dr. Gomez's live petition and attached exhibits. They
       are presented in the light most favorable to the trial court's finding.
7      At the time of the meeting, Dave Jones was the CEO of Memorial City and Dr. Joel Abramowitz was the Chief of Staff.
       Shortly after the meeting took place, Mr. Alexander became CEO.
8      Dr. Gomez disputes whether the committee to which Dr. Macris presented the data falls within the definition of a medical
       peer review committee.
9      In re Mem'I Hermann Hosp. Sys., 2014 WL 866069 (Tex.App.-Houston [1st Dist.] March 4, 2014, orig. proceeding).
10     In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 222 (Tex.2004).
11     State v. Low,y, 802 S.W.2d 669, 671 (Tex.1991); Jordan v. Court of Appeals for Fourth Supreme Judicial Dist., 701
       S.W.2d 644, 648-49 (Tex.1985).
12     In re Living Ctrs. of Tex., Inc., 175 S.W.3d at 261; Lowry, 802 S.W.2d at 671.
13     In re E.I. DuPont de Nemours & Co., 136 S.W.3d at 222 (quoting Tex. Tech. Univ. Health Scis. Ctr. v. Apodaca, 876
       S.W.2d 402,407 (Tex.App.-EI Paso 1994, writ denied)).
14     Wa/kerv. Packer, 827 S.W.2d 833, 839-40 (Tex.1992).


WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                              12
In re Memorial Hermann Hospital System, -S.W.3d-(2015)


15    Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41 (Tex.1989).
16    Id.
17    Walker, 827 S.W.2d at 840 ("In determining whether the trial court abused its discretion in the present case, we treat the
      trial court's erroneous denial of the requested discovery on the sole basis of Russell as a legal conclusion to be reviewed
      with limited deference to the trial court."); see also Marathon Oil Co. v. Moye, 893 S.W.2d 585, 589 (Tex.App.-Dallas
      1994, orig. proceeding) ('When a trial court's interpretation of discovery law is at issue, we treat the trial court's order as
      a legal conclusion. We review the legal conclusion with limited deference to the trial court.").
18    TEX. OCC. CODEE § 151.002(a)(8); see also id. § 151.002(a)(5) (defining "Health care entity").
19    In re Univ. of Tex. Health Ctr. at Tyler, 33 S.W.3d 822,825 (Tex.2000); see also TEX. OCC. CODEE§ 160.007(a) ("Except
      as otherwise provided by this subtitle, each proceeding or record of a medical peer review committee is confidential, and
      any communication made to a medical peer review committee is privileged.").
20    Mem'I Hosp.-The Woodlands v. Mccown, 927 S.W.2d 1, 3-5 (Tex.1996).
21    Id. at 10; see also In re Living Ctrs. of Tex., Inc., 175 S.W.3d at 257.
22    In re Living Ctrs. of Tex., Inc., S.W.3d at 257.
23    Id.
24    Id. at 260; Mccown, 927 S. W.2d at 1o.
25    Irving Healthcare Sys. v. Brooks, 927 S.W.2d 12, 16 (Tex.1996).
26    TEX. acc. CODEE§ 160.007(c); see also id.§ 151.002(a)(1) (" 'Board' means the Texas Medical Board.").
27    Id. § 160.007(d).
28    Id.
29    See id. § 160.007(f).
30    Id. § 160.007(e).
31    TEX. HEALTH & SAFETY CODE § 161.032(f). However, the fact that a committee reviewed such records is protected.
      See In re Living Ctrs. of Tex., 175 S.W.3d at 257 ("The peer review privilege protects the products of the peer review
      process: reports, records (including those produced for the committee's review as part of the investigative review process),
      and deliberations."); Brooks, 927 S.W.2d at 18.
32    TEX. OCC. CODEE § 160.007(b).
33    See id.§ 151.002(a)(8)(B).
34     Compare id. § 151.002(a)(7) (defining medical peer review) with id. § 151.002(a)(8) (defining medical peer review
      committee).
35    TEX. acc. CODEE§ 160.007(b).
36     Tex. Dep'tof Transp. v. Needham, 82 S.W.3d 314,318 (Tex.2002).
37     LibertyMut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482,484 (Tex.1998).
38     Combs v. Roark Amusement & Vending, L.P., 422 S.W.3d 632,635 (Tex.2013).
39     Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004).
40     Needham, 82 S.W.3d at 318.
41     TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432,439 (Tex.2011).
42    Jordan, 701 S.W.2d at 647.
43     See, e.g., TEX. OCC. CODEE§§ 261.051 (dental peer review committee); 202.454(b) (podiatric peer review committee);
      564.103(b) (pharmacy peer review committee).
44     BLACK'S LAW DICTIONARY 113 (10th ed. 2014).
45     Id. at 1400.
46     Id. at 344.
47     Id. at 113.
48     See id. at xxxii (noting that "(b]ullets are used to separate definitional information (before the bullet) from information that
       is not purely definitional (after the bullet), such as encyclopedic information or usage notes").
49     Bd. of Trade of City of Chi. v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 62 L.Ed. 683 (1918).
50     Id.; see also State Oil Co. v. Khan, 522 U.S. 3, 10, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997) ("Although the Sherman Act, by
       its terms, prohibits every agreement 'in restraint of trade,' this Court has long recognized that Congress intended to outlaw
       only unreasonable restraints."); F. T.C. v. Ind. Fed'n of Dentists, 476 U.S. 447,459,106 S.Ct. 2009, 90 L.Ed.2d 445 (1986)
       ("Absent some countervailing procompetitive virtue-such as, for example, the creation of efficiencies in the operation



WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    13
In re Memorial Hermann Hospital System, ••• S.W.3d •••• (2015)


      of a market or the provision of goods and services ...-such an agreement limiting consumer choice by impeding the
      'ordinary give and take of the market place' cannot be sustained under the Rule of Reason."); United States v. Trans-
      Missouri Freight Ass'n, 166 U.S. 290,342, 17 S.Ct. 540, 41 L.Ed. 1007 (1897) (''The necessary effect of the agreement
      is to restrain trade or commerce, no matter what the intent was on the part of those who signed it.").
51    Ca/. Dental Ass'n v. F. T.C., 526 U.S. 756, 770, 119 S.Ct. 1604, 143 L.Ed.2d 935 (1999).
52    Leegin Creative Leather Prods., Inc. v. PSKS, Inc., 551 U.S. 877,886, 127 S.Ct. 2705, 168 L.Ed.2d 623 (2007).
53    Nat'/ Collegiate Athletic Ass'n v. Bd. of Regents of Univ. of Ok., 468 U.S. 85, 107, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984)
      (internal quotation marks omitted). See also TEX. BUS. & COMM. CODE § 15.04 ("The purpose of this Act is to maintain
      and promote economic competition in trade and commerce occurring wholly or partly within the State of Texas and to
      provide the benefits of that competition to consumers in the state.").
54    United States v. Grinnell Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966).
55    Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 767-68, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984); Swift &
      Co. v. United States, 196 U.S. 375, 402, 25 S.Ct. 276, 49 L.Ed. 518 (1905) ("Not every act that may be done with intent
      to produce an unlawful result is unlawful, or constitutes an attempt. It is a question of proximity and degree.").
56    F. T.C. v. Procter& Gamble Co., 386 U.S. 568,597, 87 S.Ct. 1224, 18 L.Ed.2d 303 (1967) (emphasis added).
57    Id.
58    Copperweld Corp., 467 U.S. at 767-68, 104 S.Ct. 2731.
59    BLACK'S LAW DICTIONARY 113 (10th ed. 2014) (emphasis added).
60    See, e.g., Cmty. Commc'ns Co. v. City of Boulder, Colo., 455 U.S. 40, 48,102 S.Ct. 835, 70 L.Ed.2d 810 (1982) (holding
      that federal antitrust law does not 11prohibit[ ] a State, in the exercise of its sovereign powers, from imposing certain
      anticompetitive restraints E.R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 136, 81 S.Ct. 523,
                                11
                                     );


      5 L.Ed.2d 464 (1961) ("[W]here a restraint upon trade or monopolization is the result of valid governmental action, as
      opposed to private action, no violation of the [Sherman] Act can be made out.''); Parker v. Brown, 317 U.S. 341, 351,
      63 S.Ct. 307, 87 L.Ed. 315 (1943) ( ''The Sherman Act makes no mention of the state as such, and gives no hint that
      it was intended to restrain state action or official action directed by a state."). See also TEX. BUS. & COMM. CODE §
      15.05(g) ("Nothing In this section shall be construed to prohibit activities that are exempt from the operation of the federal
      antitrust laws ... except that an exemption otherwise available under the McCarran-Ferguson Act ... does not serve to
      exempt activities under this Act.").
61    Noerr Motor Freight, Inc., 365 U.S. at 136, 81 S.Ct. 523 ("[T]he Sherman Act does not prohibit two or more persons
      from associating together in an attempt to persuade the legislature or the executive to take particular action with respect
      to a law that would produce a restraint or a monopoly."); see also Cal. Motor Transp. Co. v. Trucking Unlimited, 404
       U.S. 508, 92 S.Ct. 609, 611, 30 L.Ed.2d 642 (1972) (extending Noerr to "the approach of citizens ... to administrative
      agencies ... and to courts").
62     Brown v. Pro Football, Inc., 518 U.S. 231, 237, 116 S.Ct. 2116, 135 L.Ed.2d 521 (1996) ("[T]he implicit exemption
       recognizes that, to give effect to federal labor laws and policies and to allow meaningful collective bargaining to take place,
       some restraints on competition imposed through the bargaining process must be shielded from antitrust sanctions.");
       Connell Constr. Co. v. Plumbers & Steamfitters Local Union No. 100,421 U.S. 616, 621-22, 95 S.Ct. 1830, 44 L.Ed.2d
       418 (1975) (holding that certain federal statutes "declare that labor unions are not combinations or conspiracies in restraint
       of trade, and exempt specific union activities, including secondary picketing and boycotts, from the operation of the
       antitrust laws").
63                                                                                        11
       See TEX. OCC. CODEE§ 160.007(b) (limiting the exception's application to civil rights proceeding[s] brought under
       42 U.S.C. Section 1983").
64     Id. (emphases added).
65     See BLACK'S LAW DICTIONARY 35 (10th ed. 2014) (listing "[t]he process of doing something; conduct or behavior''
       as one definition of action).
66     Thomas v. Oldham, 895 S.W.2d 352,356 (Tex.1995).
67     Id.
68     See id. See also BLACK'S LAW DICTIONARY 35 (10th ed. 2014) (''The terms 'action' and 'suit' are nearly if not quite
       synonymous. But lawyers usually speak of proceedings in courts of law as 'actions,' and those In courts of equity as
       'suits.' " (quoting Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 3 (2d ed. 1899))).
69     TEX. acc. CODEE § 160.007(b).
70     Id.



WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   14
In re Memorial Hermann Hospital System, -S.W.3d- (2015)


71    BLACK'S LAW DICTIONARY 28 (7th ed. 1999), quoted in Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 564
      (Tex.2014) (plurality op.).
72    TEX. R. EVID. 401 (emphasis added).
73    TEX. OCC. CODEE§ 160.007(b).
74    As already illustrated in our brief review of the meaning of "anticompetitive," there is no practical difference between the
      terms anticompetitive conduct and anticompetitive effects as used in the caselaw, because we do not deem conduct
      anticompetitive unless it has a net anticompetitive effect.
75    Memorial Hermann argues that our decision in Irving Healthcare Sys. v. Brooks, 927 S.W.2d 12 (Tex.1996), forecloses
      argument that section 160.007(b)'s anticompetitive action exception encompasses routine business torts, including
      interference with prospective business relations. In Brooks, we noted that ''the statute provides that if a court makes a
      preliminary finding that a medical peer review committee's proceedings, records, or communications are relevant to an
      anticompetitive action ... they are not confidential," but that "a similar provision for a libel action in which the plaintiff claims
      malice" was "[n]oticeably absent from the statute." 927 S.W.2d at 16. We also held that the statute did not "explicitly
      exclude from its confidentiality provisions any of [the plaintiff's] other causes of action." Id.
          The plaintiff in Brooks sued for libel, slander, "intentional infliction of mental anguish," and interference with business
          relations. Id. at 14-15. The plaintiff alleged that the defendant had "Intentionally and maliciously supplied false
          information, thereby damaging or destroying [the plaintiff's] ability to gain admittance to the medical staffs of the
          hospitals to which he applied." Id. Thus, Brooks did not require us to review the applicability of subsection (b), because
          the trial court never made the required preliminary finding of relevance to an anticompetitive action. Furthermore,
          aithough the plaintiff's "other causes of action," Included an allegation that the defendant tortiously interfered with
          prospective business relations, the plaintiff did not allege that the conduct was independently wrongful because the
          provision of false information had a negative effect on competition and constituted an antitrust violation. Our decision
          today is therefore consistent with our holding in Brooks.
76     Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 726 (Tex.2001 ).
77    TEX. BUS. & COMM. CODE § 15.01 et seq.
78     See Sturges, 52 S. W.3d at 726 ("[A] plaintiff could recover for tortious interference by showing an illegal boycott, although
      a plaintiff could not recover against a defendant whose persuasion of others not to deal with the plaintiff was lawful.").
79     See generally Phillip Areeda, Antitrust Violations Without Damages Recoveries, 89 HARV. L. REV.. 1127 (1976)
      (discussing '1hree superficially paradoxical possibilities," each of which hypothesizes circumstances under which a
      plaintiff might be able to prove an antitrust violation, but not be able to recover damages under the antitrust laws).
80    TEX. BUS. & COMM. CODE § 15.21 (a)(1 ).
81     Brunswick Corp. v. PuebloBowl-0-Mat, Inc., 429 U.S. 4n, 489, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977); see also Austin v.
       Blue Cross & Blue Shield of Ala., 903 F.2d 1385, 1389-90 (11th Cir.1990) (" 1The antitrust injury concept ..• requires the
      private antitrust plaintiff to show that his own injury coincides with the public detriment tending to result from the alleged
      violation. This requirement increases the likelihood that public and private enforcement of the antitrust laws will further the
      same goal of increased competition.'" (quoting P. Areeda and H. Hovenkamp, Antitrust Law, 335.1, at 261 (Supp. 1987)).
82    TEX. BUS. & COMM. CODE § 15.21 (a)(1 ).
83     Brunswick Corp., 429 U.S. at 489, 97 S.Ct. 690.
84    Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 125, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969).
85     Sturges, 52 S.W.3d at 713.
86     Id.
87     Id. Compare Brunswick Corp., 429 U.S. at 488, 97 S.Ct. 690 (rejecting the lower court holding that "once a merger is
       found to violate [section 7 of the Clayton Act], all dislocations caused by the merger are actionable, regardless of whether
      those dislocations have anything to do with the reason the merger was condemned").
88     BLACK'S LAW DICTIONARY 113 (10th ed. 2014).
89     Cf. Ind. Fed'n of Dentists, 476 U.S. at 459, 106 S.Ct. 2009.
90     Cf. Bioderm Skin Care, LLC v. Sok, 426 S.W.3d 753, 756 (Tex.2014) (holding the Texas Medical Liability Act "requires
       claimants asserting health care liability claims to substantiate their claims with an expert report"); Crosstex Energy Srvs.,
       L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 387 (Tex.2014) (holding that the certificate of merit statute requires plaintiffs to
       "file an affidavit ... [that] substantiate[s] the plaintiffs claim on each theory of recovery").
91     Compare TEX. CIV. PRAC. & REM. CODEE§§ 74.351 (a) ("In a health care liability claim, a claimant shall ... serve on that
       [defendant] or the [defendant's] attorney one or more expert reports .... "); 128.053(a) ("In a suit against a sport shooting



WestlawNext· © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                      15
In re Memorial Hermann Hospital System, ••• S.W.3d •••• (2015)


       range •.. a claimant shall ... serve on each party or the party's attorney one or more expert reports ..•."); see also TEX.
       HEALTH & SAFETY CODE § 841.101 (b) ("In preparation for a judicial review conducted under Section 841.102, the case
       manager shall provide a report of the biennial examination to the judge.").
92     Compare TEX. CIV. PRAC. & REM. CODEE§§ 14.004(a) ("An inmate who files an affidavit or unsworn declaration of
       inability to pay costs shall file a separate affidavit or declaration...."); 150.002(a) ("In any action or arbitration proceeding
       for damages arising out of the provision of professional services by a licensed or registered professional, the plaintiff
       shall be required to file with the complaint an affidavit of a third-party licensed architect, licensed professional engineer,
       registered landscape architect, or registered professional land surveyor....").
93     Compare id.§ 27.00S(a) ("[T]he court shall consider the pleadings and supporting and opposing affidavits stating the
       facts on which the liability or defense is based.").
94     TEX. acc. CODEE§ 160.007(b). Compare Md. Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 457 (Tex.1982) ('We
       will assume for purposes of this opinion that the information ordered to be disclosed is relevant.").
95     Compare TEX. CIV. PRAC. & REM. CODEE § 27.005(c) ("The court may not dismiss a legal action under this standard
       if the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential
       element of the claim in question." (emphasis added)); TEX. HEALTH & SAFETY CODE§ 841.102(c) ("The judge shall
       set a hearing if the judge determines at the biennial review that ... probable cause exists to believe that the person•s
       behavioral abnormality has changed to the extent that the person is no longer likely to engage in a predatory act of sexual
       violence." (emphasis added)).
96     Cf. TEX. R. CIV. P. 193.4(a) (''The party making the objection or asserting the privilege must present any evidence
       necessary to support the objection or privilege." (emphasis added)); see also Lunsford v. Morris, 746 S.W.2d 471, 473
       (Tex.1988) CUAbsent a privilege or specifically enumerated exemption, our rules permit discovery of any 'relevant' matter;
       thus, there is no evidentiary threshold a litigant must cross before seeking discovery.").
97     See Lowry, 802 S.W.2d at 673 ("[Alli of the information sought to be discovered was gathered by the State during
       the investigation that led to the filing of this antitrust enforcement action. The State has refused to provide materials
       requested by the insurers that could lead to evidence supporting their defense. It is difficult for the insurers to make a
       more particularized showing of need for these documents, the contents of which are unknown to them.").
98     See TEX. acc. CODEE § 160.00S(c) ("A defendant subject to this section may file a counterclaim in a pending action
       or may prove a cause of action in a subsequent action to recover defense costs, including court costs, attorney's fees,
       and damages incurred as a result of the civil action, if the plaintiff's original action is determined to be frivolous or brought
       in bad faith.").
99     TEX. R. CIV. P. 192.4(a).
100    TEX. R. CIV. P. 192.4(b).
101    TEX. R. CIV. P. 192.6(b).
102    TEX. acc. CODEE§ 160.007(b) (emphasis added).
103    TEX. R. CIV. P. 192.3(a) (emphasis added).
104     Fort Bend Cnty. v. Wilson, 825 S.W.2d 251, 253 (Tex.App.-Houston [14th Dist.] 1992, no writ).
105     See Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982) ("A petition is sufficient if it gives fair and adequate notice of the
       facts upon which the pleader bases his claim. The purpose of this rule is to give the opposing party information sufficient
       to enable him to prepare a defense.").
106     Coca-Co/a Co. v. Harmar Bottling Co., 218 S.W.3d 671, 688-89 (Tex.2006); see also TEX. BUS. & COMM. CODE§
       15.04.
107     Coca-Co/a Co., 218 S.W.3d at 688-89. Accord Caller-Times Pub. Co. v. Triad Commc'ns, Inc., 826 S.W.2d 576,580
        (Tex.1992) ( "Because section 15.05(b) of the Texas Antitrust Act is comparable to section 2 of the Sherman Antitrust
        Act, we look to federal law interpreting section 2 of the Sherman Act for guidance in interpreting section 15.05(b) of the
       Texas Antitrust Act."); Desantis v. Wackenhut Corp., 793 S.W.2d 670, 687 (Tex.1990) ("Section 15.05 is comparable
       to, and indeed taken from, section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1 (1988). Accordingly, we look to federal
       judicial interpretations of section 1 of the Sherman Act in applying section 15.05(a) of our state antitrust law.").
108    TEX. BUS. & COMM. CODE§ 15.0S(a)-(b).
109     Cf. BLACK'S LAW DICTIONARY 1443 (10th ed. 2014) (defining qui tam action as "[a]n action brought under a statute
       that allows a private person to sue for a penalty, part of which the government or some specified public institution will
        receive"). See, e.g., TEX. HUM. RES. CODEE § 36.110.
11 0   TEX. BUS. & COMM. CODE § 15.21 (a)(1 ).



WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                     16
In re Memorial Hermann Hospital System, - S. W.3d -- (2015)


111   Doctor's Hosp. of Jefferson, Inc. v. Se. Med. Alliance, Inc., 123 F.3d 301, 305 (5th Cir.1997); but see Levine v. Cent. Fla.
      Med. Affiliates, Inc., 72 F.3d 1538, 1548 (11th Cir.1996) (" 'When a court concludes that no violation has occurred, it has
      no occasion to consider standing ... An increasing number of courts, unfortunately, deny standing when they really mean
                                      11
      that no violation has occurred.' (quoting P. Areeda & H. Hovenkamp, Antitrust Law,i 360f, at 202-03 (rev. ed. 1995))).
112   Austin v. McNamara, 979 F.2d 728, 739 (9th Cir.1992) (emphasis removed); see also Les Shockley Racing, Inc. v.
      Nat'/ Hot Rod Ass'n, 884 F.2d 504, 508 (9th Cir.1989) ("[R]emoval of one or more competing sellers from any market
      necessarily has an effect on competitive conditions within that market. But removal of one or a few competitors need
      not equate with injury to competition.").
113   Les Shockley Racing, Inc., 884 F.2d at 508.
114   NYNEX Corp. v. Discon, Inc., 525 U.S. 128, 134-35, 119 S.Ct. 493, 142 L.Ed.2d 510 (1998) (discussing Klor's, Inc. v.
      Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959)); see also Klor's, Inc., 359 U.S. at 213,
      79 S.Ct. 705 (holding that a group boycott was "not to be tolerated merely because the victim is just one merchant whose
      business is so small that his destruction makes little difference to the economy'').
115   Klor's Inc., 359 U.S. at 213, 79 S.Ct. 705. Cf. U.S. Healthcare, Inc. v. Healthsource, Inc., 986 F.2d 589,597 (1st Cir.1993)
      ( "Ultimately the issue turns upon antitrust policy, where a permanent tension prevails between the 'no sparrow shall fall'
      concept of antitrust ... and the ascendant view that antitrust protects 'competition, not competitors.' ").
116   Les Shockley Racing, Inc., 884 F.2d at 508.
117   Id.
118   Id. at 509. Compare Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 7, 104 S.Ct. 1551, 80 L.Ed.2d 2 (1984)
      (affirming dismissal of the claim where the defendant was only one hospital of several in a large metropolitan area)
      with Full Draw Prods. v. Easton Sports, Inc., 182 F.3d 745, 754 (10th Cir.1999) (holding that the loss of one or two
      competitors alleged an injury to competition where "[t]he allegation describes the anticompetitive effect of the boycott to
      be the loss of competition through the elimination of AMMO's sole archery trade show competitor and the resultant loss
      in exhibition space outpur) and Oltz v. St. Peter's Comm. Hosp., 861 F.2d 1440, 1446-47 (9th Cir.1988) (exclusion of a
      single nurse anesthetist from a single hospital constituted an unreasonable restraint of trade where that hospital "enjoyed
      the overwhelming majority of the market for general surgery" and "there was no evidence that patients could effectively
      turn outside [the hospital] for alternate sources of anesthesia services").
119   We note that "[o]nce experience with a particular kind of restraint enables [courts] to predict with confidence that the rule
      of reason will condemn it, [courts will] appl[y] a conclusive presumption that the restraint is unreasonable." Arizona v.
      Maricopa Cnty. Med. Soc., 457 U.S. 332, 344, 102 S.Ct. 2466, 73 L.Ed.2d 48 (1982). Dr. Gomez has not alleged that
      the conduct at issue falls within a category of behavior deemed unreasonable per se, however.
120   Ginzburg v. Mem'I Healthcare Sys., Inc., 993 F.Supp. 998, 1009 (S.D.Tex.1997) (quoting State Oil Co., 522 U.S. at 10,
      118 S.Ct. 275).
121   Brader v. Allegheny Gen. Hosp., 64 F.3d 869, 876 (3d Cir.1995).
122   Grinnell Corp., 384 U.S. at 570-71, 86 S.Ct. 1698.
123   Oltz, 861 F.2d at 1446.
124   Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447,456,113 S.Ct. 884,122 L.Ed.2d 247 (1993).
125   Id.
126   Brader, 64 F.3d at 876; see also Oltz, 861 F.2d at 1446 ("Defining the relevant market is a factual Inquiry ordinarily
      reserved for the jury.").
127   See Brader, 64 F.3d at 877 ("rr]he type of injury alleged by Brader (the loss of income due to an Inability to practice in
      the relevant market area) is directly related to the illegal activity in which the defendant allegedly engaged: a conspiracy
      to exclude Brader from the relevant market.").
128   See, e.g., Fuentes v. S. Hills Cardiology, 946 F.2d 196, 202 (3d Cir.1991) ("Fuentes alleges that the defendants acted in
      concert to deny Fuentes, a provider of cardiological services, access to the Pittsburgh cardiological market. Consequently,
      Fuentes asserts, that by eliminating him as a competitor, the boycott successfully reduced competition for the defendants'
      cardiological services.''). Compare BCB Anesthesia Care, Ltd. v. Passavant Mem'I Area Hosp. Ass'n, 36 F.3d 664, 668
      (7th Cir.1994) ('rrhe plaintiffs can practice at Passavant or elsewhere-they are not disabled from practicing wherever
      they choose.").
129   Cf. Bolt v. Halifax Hosp. Med. Ctr., 891 F.2d 81 o, 820 (11th Cir.1990) ("[A]s the defendants' own arguments suggest, a
      negative decision at one hospital could affect the decision at another hospital; therefore ... a negative decision by one
      hospital could be tantamount to excluding a doctor from the profession as a whole." (internal quotation marks omitted)),



WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                17
In re Memorial Hermann Hospital System, -S.W.3d-(2015)


      overruled in pat1 on other grounds by City of Columbia v. Omni Outdoor Adver., 499 U.S. 365, 111 S.Ct. 1344, 113
      L.Ed.2d 382 (1991 ).
130   Compare Coca-Cola Co., 218 S. W.3d at 688 (reversing a jury verdict where uthere is only evidence of harm in relatively
      isolated instances and no evidence of substantial foreclosure or anti-competitive effect in any relevant market'').
131   Compare id. ("There must be evidence of demonstrable economic effect, not just an inference of possible effect." (internal
      quotation marks omitted)).
132   Cf. Leegin Creative Leather Prods., Inc., 551 U.S. at 886, 127 S.Ct. 2705 (holding that the goal of judicial scrutiny is to
      "distinguish[ ] between restraints with anticompetitive effect that are harmful to the consumer and restraints stimulating
      competition that are in the consumer's best interest").
133   We note that there may be procompetitive justifications for allowing the presentation of even misleading data, such as
      allowing for freer and more informed discussions-particularly in light of procedures available to physicians to challenge
      the peer review process. For example, ensuring that the data cannot be challenged might delay the hospital's ability to
      respond to concerns raised by the data. It may be that such increased responsiveness is of greater value than the Interim
      damage to a physician's reputation.
          As we have already discussed, the inclusion and wording of the anticompetitive exception to the medical peer review
          committee privilege does not condition the exception on a pre-determination that the behavior at Issue is indeed
          anticompetitive. It requires only that the action seeks to establish that the behavior is anticompetitive. This case
          presents Itself to us at the discovery phase rather than summary judgment. The procompetitive value of allowing for
          the presentation of false data is a factual determination-one likely requiring the aid of expert reports-and it is not a
          determination that we can make as a matter of law.
134   See Brader, 64 F.3d at 876.
135    Cf. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,598, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ("[A]s
      presumably rational businesses, petitioners had every incentive notto engage in the conduct with which they are charged,
      for its likely effect would be to generate losses for petitioners with no corresponding gains."). But see Boczar v. Manatee
       Hasps. & Health Sys., Inc., 993 F.2d 1514, 1518 (11th Cir.1993) {''The jury could believe that the hospital would benefit
      economically by securing its pre-existing ob/gyn staff and revenues ....").
136    See United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 393, 76 S.Ct. 994, 100 L.Ed. 1264 (1956)
       ("Determination of the competitive market for commodities depends on how different from one another are the offered
      commodities in character or use, how far buyers will go to substitute one commodity for another.").
137   We note that Memorial Hermann filed special exceptions regarding Dr. Gomez's allegations of the relevant market.
       Memorial Hermann has not requested relief regarding the trial court's denial of those special exceptions, however, and we
      do not consider whether pleading these markets in the alternative provides Memorial Hermann with "information sufficient
       to enable [it] to prepare a defense." See Roark, 633 S.W.2d at 810.
138    See Boczar, 993 F.2d at 1517 ("When Dr. Boczar joined its staff, Manatee Hospital had suffered defections by members
       of its ob/gyn staff and feared still more ob/gyn departures to a competing hospital.").
139    Cf. Brown Shoe Co. v. United States, 370 U.S. 294, 323-24, 82 S.Ct. 1502, 8 L.Ed.2d 51 O(1962) ("The primary vice of a
       vertical merger or other arrangement tying a consumer to a supplier is that, by foreclosing the competitors of either party
       from a segment of the market otherwise open to them, the arrangement may act as a 'clog on competition.'" (emphasis
       added)); Klor's, Inc., 359 U.S. at 209, 79 S.Ct. 705 (''The concerted refusal to deal with Klor1s has seriously handicapped
       its ability to compete and has already caused it a great loss of profits, goodwill, reputation and prestige.").
140    See Doctor's Hosp. of Jefferson, Inc., 123 F.3d at 305 (holding that standing to bring suit for antitrust requires "proper
       plaintiff status, which assures that other parties are not better situated to bring suit").
141    See Sturges, 52 S.W.3d at 713.
142    All page references in this section are to the sealed record.
143    See Brownwood Reg'/ Hosp. v. Eleventh Cout1 of Appeals, 927 S.W.2d 24, 27 (Tex.1996) (holding "the bylaws, rules, and
       regulations of [the hospital's] medical staff or Board of Trustees ... are not records, reports, or proceedings of a hospital
       or medical peer review committee, nor do they reveal communications to such a committee").
144    See City of Waco v. Lopez, 259 S.W.3d 147, 153 (Tex.2008).
145    TEX. GOV'T CODE §§ 311.025, 311.026(a); Tex. Indus. Energy Consumers v. CenterPoint Energy Hous. Elec., LLC,
       324 S.W.3d 95, 107 (Tex.2010).
146    TEX. GOV'T CODE § 311.025(a); Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290, 297 (Tex. 2011 ).
147    TEX. GOV'T CODE § 311.026(b); TracFone Wireless, Inc. v. Comm'n on State Emergency Commc'ns, 397 S.W.3d 173,
       181 (Tex.2013).


WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                 18
In re Memorial Hermann Hospital System, -        S. W.3d -   (2015)



148 TEX. GOV'T CODE§ 311.026(b); Lopez, 259 S.W.3d at 153.
149 TEX. HEALTH & SAFETY CODE § 161.031 (a). The other categories of entities include university medical schools and
    health science centers, health maintenance organizations licensed under Chapter 843 of the Insurance Code, extended
    care facilities, hospital districts, and hospital authorities. Id. § 161.031 (a)(3)-(7).
150 Id.§ 161.031 (b).
151 Id. § 161.032(f).
152 Id.§ 161.032(d).
153 Id. § 161.032(f).
154 Id. § 161.032(a).
155 See id. § 161.032(b)(1) (proving that "a proceeding of a medical peer review committee ... or medical committee" may
    be held in a closed meeting (emphasis added)); id. § 161.032(b)(2) (providing for closed meetings of the governing
    board of certain hospitals or health maintenance organizations if at the meeting, ''the governing body receives records,
    information, or reports provided by a medical committee [or] medical peer review committee"); id.§ 161.032(c) (providing
    that the "[r]ecords, information, or reports of a medical committee [ot1 medical peer review committee" as well as "records,
    information or reports provided by a medical committee [ot1 medical peer review committee ••. to the governing board
    of a public hospital, hospital district, or hospital authority'' are exempt from the disclosure provisions of Chapter 552 of
    the Government Code).
156 In order to be considered a medical peer review committee, the committee must (1) "operate[ ] under written bylaws
    approved by the policy-making board or the governing board of the health care entity'' and (2) be "authorized to evaluate
    the quality of medical and health care services or the competence of physicians." TEX. OCC. CODEE§ 151.002(a)(8).
157 Id.
158 Id.§ 151.002(a)(5).
159 By way of example, "a health care collaborative certified under Chapter 848, Insurance Code" is specifically designated
       as a health care entity, TEX. OCC. CODEE§ 151.002(a)(5)(E), but such entitles would not fall neatly within any of the
       entity categories listed in the definition of a medical committee. Compare id. with TEX. HEALTH & SAFETY CODE §
       161.031(a)(1)-(8). But see Brooks, 926 S.W.2d at 20 ("[T]he statutory definition of "medical committee" is broad ... That
       definition encompasses a medical peer review committee....").
160    TEX. acc. CODEE§ 151.002(a)(5)(8)(ii).
161    Id. § 151.002(a)(8). In other words, any medical committee that both "operates under written bylaws" approved by either
       its policy-making or governing board, and follows a formal peer review process will also be considered a medical peer
       review committee. Id.
162    There is only one potential exception to this rule, and that exception applies to the records and proceedings of governing
       bodies of "public hospital[s] owned or operated by a governmental entity, ... hospital authorit[ies] created under Chapter
       262 or 264, Health and Safety Code, ... [or] hospital district[s] created under Article IX, Texas Constitution." TEX. OCC.
       CODEE§ 151.002(a)(8)(8). These governing bodies are considered to be medical peer review committees only in relation
       to their evaluation of the quality of the medical and health care services they provide or a physician's competence-
       and only "to the extent that the evaluation ... involves discussions or records that specifically or necessarily identify an
       individual patient or physician." Id. § 151.002(a)(B)(B)(i)-(ii). Thus, none of the governing bodies' records or proceedings
       that does not "specifically or necessarily identify an individual patient or physician," id. § 151.002(a)(8)(ii), would be
       subject to section 160.007 of the Occupations Code, although they would still enjoy the protections of section 161.032
       of the Health and Safety Code.
163    See, e.g., In re Living Ctrs. of Tex., Inc., 175 S.W.3d at 256.
164    See TEX. HEALTH & SAFETY CODE § 161.032(a) ("The records and proceedings of a medical committee are
       confidential and are not subject to court subpoena." (emphasis added)); TEX. OCC. CODEE§ 160.007(a) ( "Except as
       otherwise provided by this subtitle, each proceeding or record of a medical peer review committee is confidential, and
       any communication made to a medical peer review committee is privileged." (emphasis added)).
165    See Lopez, 259 S.W.3d at 153.
166    See TEX. HEALTH & SAFETY CODE § 161.032(d).
167    See TEX. acc. CODEE § 160.007(d).
168    Id. § 160.007(b).
169    TEX. HEALTH & SAFETY CODE § 161.032(a).
170     See TEX. GOV'T CODE§§ 311.025(a); 311.026(b).



WestlavvNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                               19
In re Memorial Hermann Hospital System, ••• S. W.3d -   (2015)




End of Document                                          © 2015 Thomson Reuters. No claim to original U.S. Government Works.




 WestlawNexr © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          20
TABN0.16
                                                  In re Lipsky
                                               Supreme Court of Texas
                            December 4, 2014, Argued; April 24, 2015, Opinion Delivered
                                                     NO. 13-0928

Reporter
460 S.W.3d 579; 2015 Tex. LEXIS 350; 58 Tex. Sup. J. 707; 45 ELR 20082; 43 Media L. Rep. 1793

IN RE STEVEN LIPSKY, RELATOR                                 LexisNexis® Headnotes
Prior History: Lipsky v. Range Prod. Co., 2012 Tex.
App. LEXIS 7059 (Tex. App. Fort Worth, Aug. 23, 2012)          Constitutional Law> ... > Fundamental
                                                               Freedoms > Freedom of Speech > Strategic Lawsuits
Core Terms                                                     Against Public Participation
                                                               Evidence > Burdens of Proof > Clear & Convincing Proof
specific evidence, defamation, disparagement, court of
appeals, contamination, defamatory, pet, circumstantial        Civil Procedure > ... > Defenses, Demurrers &
                                                               Objections > Motions to Dismiss > Failure to State Claim
evidence, motion to dismiss, damages, trial court,
reputation, essential element, defamation per se, prima        Evidence > Types of Evidence > Circumstantial Evidence
facie case, operations, argues, cases, evidentiary             Evidence > Relevance > Relevant Evidence
standard, defamation claim, general damages, aquifer,
no evidence, pleadings, drilling, defeat, interlocutory      HN1 The Texas Citizens Participation Act protects
appeal, special damage, inferences, remarks                  citizens who petition or speak on matters of public
                                                             concern from retaliatory lawsuits that seek to intimidate
Case Summary                                                 or silence them. Tex. Civ. Prac. & Rem. Code Ann. §§
                                                             27.001-27.011. The protection consists of a special
                                                             motion for an expedited consideration of any suit that
Overview
                                                             appears to stifle the defendant's communication on a
                                                             matter of public concern. Tex. Civ. Prac. & Rem. Code
HOLDINGS: [1)-ln determining whether there was clear
                                                             Ann. § 27.003. In reviewing that motion, the trial court is
and specific evidence to establish plaintiffs' prima facie
                                                             directed to dismiss the suit unless "clear and specific
case and avoid dismissal pursuant to Tex. Civ. Prac. &
                                                             evidence11 establishes the plaintiffs' "prima facie case."
Rem. Code Ann. § 27.005fc) of the Texas Citizens
                                                             Tex. Civ. Prac. & Rem. Code Ann. § 27.005fc). Some
Participation Act (TCPA), Tex. Civ. Prac. & Rem. Code
                                                             courts hold that only direct evidence is relevant when
Ann.§§ 27.001-27.011, relevant circumstantial evidence
                                                             considering a motion to dismiss under the Act, while
could be considered; [2)-The Supreme Court of Texas
                                                             others have concluded that relevant circumstantial
accordingly disapproved those cases that interpreted
                                                             evidence must also be considered. The Supreme Court
the TCPA to require direct evidence of each essential
                                                             of Texas agrees that clear and specific evidence under
element of the underlying claim to avoid dismissal; [3]-A
                                                             the Act includes relevant circumstantial evidence.
gas well driller's defamation counterclaim against a
property owner was properly not dismissed because              Constitutional Law> ... > Fundamental
clear and specific evidence showed the owner's                 Freedoms> Freedom of Speech> Strategic Lawsuits
statements were defamatory per se, as they reflected on        Against Public Participation
the driller's fitness and abilities as a natural gas
                                                               Civil Procedure > Appeals > Appellate
producer, and proof of particular damage was not
                                                               Jurisdiction> Interlocutory Orders
required.
                                                             HN2 An interlocutory appeal is permitted from any
Outcome
                                                             interlocutory order denying a motion to dismiss under
Requested writ of mandamus denied.
                                                             the Texas Citizens Participation Act, Tex. Civ. Prac. &
                                                             Rem. Code Ann. §§ 27.001-27.011. Tex. Civ. Prac. &
                                                                                                             Page 2 of 17
                                                       In re Lipsky

Rem. Code Ann. § 51.014(a)(12).                                 HN5 The "right to petition," as used in Tex. Civ. Prac. &
                                                                Rem. Code Ann. § 27.005(b), refers to a wide range of
  Constitutional Law > ... > Fundamental                        communications relating to judicial, administrative, or
  Freedoms > Freedom of Speech > Strategic Lawsuits             other governmental proceedings. Tex. Civ. Prac. &
  Against Public Participation                                  Rem. Code Ann.§ 27.001(4).
  Evidence > Burdens of Proof > Burden Shifting
                                                                  Constitutional Law > ... > Fundamental
  Evidence > Burdens of Proof > Clear & Convincing Proof          Freedoms > Freedom of Speech > Strategic Lawsuits
  Evidence > Burdens of Proof > Preponderance of Evidence         Against Public Participation
                                                                  Constitutional Law > ... > Fundamental
HN3 The Texas Citizens Participation Act, Tex. Civ.               Freedoms > Freedom of Speech > Scope
Prac. & Rem. Code Ann. §§ 27.001-27.011, protects
citizens from retaliatory lawsuits that seek to intimidate      HN6 The "right of associationi" as used in Tex. Civ.
or silence them on matters of public concern. The Act           Prac. & Rem. Code Ann. § 27.005(b), refers to people
provides a special procedure for the expedited dismissal        collectively expressing, promoting, pursuing, or
of such suits. A two-step process is initiated by motion        defending common interests. Tex. Civ. Prac. & Rem.
of a defendant who believes that the lawsuit responds to        Code Ann. § 27. 001 (2).
the defendant's valid exercise of First Amendment, U.S.
Const. amend. I, rights. Under the first step, the burden         Constitutional Law> ... > Fundamental
is initially on the defendant-movant to show "by a                Freedoms > Freedom of Speech > Strategic Lawsuits
preponderance of the evidence" that the plaintiffs claim          Against Public Participation
is based on, relates to, or is in response to the movant's        Civil Procedure> ... > Defenses, Demurrers &
exercise of: (1) the right of free speech; (2) the right to       Objections > Motions to Dismiss > Failure to State Claim
petition; or (3) the right of association. Tex. Civ. Prac. &
                                                                  Civil Procedure > Pleading & Practice > Pleadings > Rule
Rem. Code Ann. § 27.005(b). If the movant is able to
                                                                  Application & Interpretation
demonstrate that the plaintiffs claim implicates one of
these rights, the second step shifts the burden to the            Evidence > Burdens of Proof > Allocation
plaintiff to establish by clear and specific evidence a
prima facie case for each essential element of the claim        HN7 In determining whether a plaintiffs claim under the
in question. § 27.005(c).                                       Texas Citizens Participation Act, Tex. Civ. Prac. & Rem.
                                                                Code Ann. §§ 27.001-27.011, should be dismissed, the
  Constitutional Law > ... > Fundamental                        court is to consider the pleadings and any supporting
  Freedoms > Freedom of Speech > Strategic Lawsuits             and opposing affidavits. Tex. Civ. Prac. & Rem. Code
  Against Public Participation                                  Ann. § 27.006(a). Moreover, the motion to dismiss
                                                                ordinarily suspends discovery, Tex. Civ. Prac. & Rem.
  Constitutional Law > ... > Fundamental
  Freedoms > Freedom of Speech > Scope                          Code Ann. § 27.003(cJ, although the statute leaves the
                                                                possibility for a court to order limited discovery for "good
HN4 The "right of free speech," as used in Tex. Civ.            cause" as it relates to the motion itself. § 27.006(b).
Prac. & Rem. Code Ann. § 27.005(b), refers to                   Within defined time limits, the court must then rule on
communications related to "a matter of public concern"          the motion and must dismiss the plaintiffs claim if the
which is defined to include an issue related to: (A)            defendant's constitutional rights are implicated and the
health or safety; (B) environmental, economic, or               plaintiff has not met the required showing of a prima
community well-being; (C) the government; (D) a public          facie case. Tex. Civ. Prac. & Rem. Code Ann.§ 27.005.
official or public figure; or (E) a good, product, or service   The determination is to be made promptly, ordinarily
in the marketplace. Tex. Civ. Prac. & Rem. Code Ann.§           within 150 days of service of the underlying legal action.
27.001 (3), .0.{dl-(E).                                         Tex. Civ. Prac. & Rem. Code Ann. §§ 27.003(b).
                                                                27.004(a), 27.005(a).
  Constitutional Law > ... > Fundamental
  Freedoms > Freedom of Speech > Strategic Lawsuits               Evidence > Burdens of Proof > Clear & Convincing Proof
  Against Public Participation                                    Civil Procedure > ... > Defenses, Demurrers &
  Constitutional Law > Bill of Rights > Fundamental               Objections > Motions to Dismiss > Failure to State Claim
  Freedoms > Freedom to Petition                                  Constitutional Law > ... > Fundamental
                                                                  Freedoms > Freedom of Speech > Strategic Lawsuits
                                                                                                                Page 3 of 17
                                                        In re Lipsky

  Against Public Participation                                     Evidence > Burdens of Proof > General Overview
  Evidence > Types of Evidence > Circumstantial Evidence
                                                                 HN12 The applicable evidentiary standard is generally
HNB Some courts, focusing on the requirement of "clear           determined by the nature of the case or particular claim.
and specific evidence, 11 have interpreted Tex. Civ. Prac.       Criminal cases require proof beyond a reasonable
& Rem. Code Ann. § 27.005/c) of the Texas Citizens               doubt, a near certainty, whereas civil cases typically
Participation Act, Tex. Civ. Prac. & Rem. Code Ann. §§           apply the preponderance-of-the-evidence standard, that
27. 001-27. 011, to require a heightened evidentiary             is, a fact-finder's determination that the plaintiffs version
standard, unaided by inferences. Implicit in these               of the events is more likely than not true. Some civil
decisions is the assumption that circumstantial evidence         claims, including some defamation claims, elevate the
is not sufficiently "clear and specific" to satisfy the          evidentiary standard to require proof by clear-and-
statutory burden. Other courts, focusing on the prima-           convincing evidence. This standard requires that the
facie-case language, have concluded that the statute             strength of the plaintiffs proof produces in the mind of
                                                                 the trier of fact a firm belief or conviction as to the truth
permits the court to draw rational inferences from
circumstantial evidence when determining whether the             of the allegations.
plaintiff has met its threshold factual burden.
                                                                   Evidence > Burdens of Proof > General Overview
  Evidence > Burdens of Proof> Clear & Convincing Proof            Evidence > Burdens of Proof > Clear & Convincing Proof
  Civil Procedure > ... > Defenses, Demurrers &                    Evidence > Admissibility > Circumstantial & Direct Evidence
  Objections > Motions to Dismiss > Failure to State Claim
                                                                   Constitutional Law > ... > Fundamental
  Constitutional Law > ... > Fundamental                           Freedoms > Freedom of Speech > Strategic Lawsuits
  Freedoms > Freedom of Speech > Strategic Lawsuits                Against Public Participation
  Against Public Participation
                                                                 HN13 Clear and specific evidence is not a recognized
HN9 Tex. Civ. Prac. & Rem. Code Ann. § 27. 005/c)                evidentiary standard. Although it sounds similar to clear
does not define "clear and specific evidence."                   and convincing evidence, the phrases are not .legally
                                                                 synonymous. The Legislature well understands the
  Evidence > Inferences & Presumptions > Inferences              clear-and-convincing-evidence standard and uses that
  Evidence > Types of Evidence > Circumstantial Evidence         standard when it so intends. But even were courts to
                                                                 assume that the Legislature intended to apply the clear-
  Torts > ... > Fraud & Misrepresentation > Actual
                                                                 and-convi ncing standard in the Texas Citizens
  Fraud > Elements
                                                                 Participation Act, Tex. Civ. Prac. & Rem. Code Ann. §§
                                                                 27.001-27.011, it would still not exclude circumstantial
HN10 Intent to defraud is not susceptible to direct proof
                                                                 evidence.
and invariably must be proven by circumstantial
evidence. Fraud could not be inferred from the "vague,
                                                                   Evidence > Burdens of Proof > Clear & Convincing Proof
indefinite, and inconclusive" testimony of interested
witnesses.                                                         Evidence > Admissibility > Circumstantial & Direct Evidence
                                                                   Evidence > Relevance > Relevant Evidence
  Evidence > Inferences & Presumptions > Inferences
                                                                   Governments > Legislation > Interpretation
  Evidence > Admissibility > Circumstantial & Direct Evidence
                                                                   Civil Procedure > ... > Defenses, Demurrers &
HN11 Circumstantial evidence can be vague, indefinite,             Objections > Motions to Dismiss > Failure to State Claim
or inconclusive, but it is not so by definition. Rather, it is
simply indirect evidence that creates an inference to            HN14 All evidentiary standards, including clear and
establish a central fact. It is admissible unless the            convincing evidence, recognize the relevance of
connection between the fact and the inference is too             circumstantial evidence. In fact, courts have
weak to be of help in deciding the case. Tex. R. Evid.           acknowledged that the determination of certain facts in
401-402. The common law has developed several                    particular cases may exclusively depend on such
distinct evidentiary standards, but none of these                evidence. Circumstantial evidence may be used to
standards categorically rejects the use of circumstantial        prove one's case-in-chief or to defeat a motion for
evidence.                                                        directed verdict, and so it would be odd to deny its use
                                                                 to defeat a preliminary motion to dismiss under the
                                                                                                              Page 4 of 17
                                                         In re Lipsky

Texas Citizens Participation Act, Tex. Civ. Prac. & Rem.          Freedoms > Freedom of Speech > Strategic Lawsuits
Code Ann. §§ 27.001-27.011. That the statute should               Against Public Participation
create a greater obstacle for the plaintiff to get into the       Evidence > Burdens of Proof> Clear & Convincing Proof
courthouse than to win its case seems nonsensical.
Courts interpret statutes to avoid an absurd result.              Civil Procedure > ... > Defenses, Demurrers &
                                                                  Objections > Motions to Dismiss > Failure to State Claim
  Civil Procedure > ... > Defenses, Demurrers &                   Evidence > Inferences & Presumptions > Inferences
  Objections > Motions to Dismiss > Failure to State Claim
  Constitutional Law > ... > Fundamental                        HN17 The Texas Citizens Participation Act, Tex. Civ.
  Freedoms > Freedom of Speech > Strategic Lawsuits             Prac. & Rem. Code Ann.§§ 27.001-27.011, requires not
  Against Public Participation                                  only "clear and specific evidence" but also a "prima facie
                                                                case." In contrast to "clear and specific evidence." a
  Evidence > Burdens of Proof> Clear & Convincing Proof
                                                                "prima facie case" has a traditional legal meaning. It
                                                                refers to evidence sufficient as a matter of law to
HN15 The purpose of the Texas Citizens Participation
                                                                establish a given fact if it is not rebutted or contradicted.
Act (TCPA), Tex. Civ. Prac. & Rem. Code Ann. §§
                                                                It is the minimum quantum of evidence necessary to
27.001-27.011, is to identify and summarily dispose of
                                                                support a rational inference that the allegation of fact is
lawsuits designed only to chill First Amendment, U.S.
                                                                true.
Const. amend. /, rights, not to dismiss meritorious
lawsuits. Tex. Civ. Prac. & Rem. Code Ann. § 27.002               Evidence > Burdens of Proof > Clear & Convincing Proof
balances the constitutional rights of persons to petition,
speak freely, associate freely, and otherwise participate         Constitutional Law> ... > Fundamental
in government to the maximum extent permitted by law              Freedoms > Freedom of Speech > Strategic Lawsuits
                                                                  Against Public Participation
against the rights of a person to file meritorious lawsuits
for demonstrable injury. To accomplish its purpose, the           Civil Procedure > ... > Defenses, Demurrers &
TCPA endorses a summary process, requiring judicial               Objections > Motions to Dismiss > Failure to State Claim
review of the pleadings and limited evidence, typically
within 150 days following service. Tex. Civ. Prac. &            HN18 The direction of the Texas Citizens Participation
Rem. Code Ann. §§ 27.003(bJ, 27.004/a), 27.005/a).              Act (TCPA), Tex. Civ. Prac. & Rem. Code Ann. §§
To defeat an appropriate TCPA motion to dismiss, the            27.001-27.011, that a claim should not be dismissed if
opponent must establish by clear and specific evidence          the party bringing the legal action establishes by clear
a prima facie case for each essential element of the            and specific evidence a prima facie case for each
claim in question. § 27. 005/c).                                essential element of the claim in question describes the
                                                                clarity and detail required to avoid dismissal. Tex. Civ.
  Evidence > Burdens of Proof> Clear & Convincing Proof         Prac. & Rem. Code Ann. § 27. 005/c). Courts are further
                                                                directed to make that determination early in the
  Governments > Legislation > Interpretation
                                                                proceedings, typically on the basis of the pleadings and
  Constitutional Law> ... > Fundamental                         affidavits. But pleadings that might suffice in a case that
  Freedoms > Freedom of Speech > Strategic Lawsuits             does not implicate the TCPA may not be sufficient to
  Against Public Participation                                  satisfy the TCPA's "clear and specific evidence"
                                                                requirement.
HN16 Neither the Texas Citizens Participation Act, Tex.
Civ. Prac. & Rem. Code Ann. §§ 27.001-27.011, nor the              Civil Procedure > ... > Defenses, Demurrers &
common law provides a definition for "clear and specific           Objections > Motions to Dismiss > Failure to State Claim
evidence. Words and phrases that are not defined by
          11


                                                                   Civil Procedure > Pleading & Practice > Pleadings > Rule
statute and that have not acquired a special or technical
                                                                   Application & Interpretation
meaning are typically given their plain or common
meaning. The words "clear'' and "specific" in the context          Civil
of the Act have been interpreted respectively to mean,             Procedure > ... > Pleadings > Complaints > Requirements
for the former, "unambiguous," "sure," or "free from               for Complaint
doubt" and, for the latter, "explicit" or "relating to a           Constitutional Law> ... > Fundamental
particular named thing."                                           Freedoms > Freedom of Speech > Strategic Lawsuits
                                                                   Against Public Participation
  Constitutional Law > ... > Fundamental
                                                                   Evidence > Burdens of Proof > Clear & Convincing Proof
                                                                                                           Page 5 of 17
                                                        In re Lipsky

HN19 Texas procedural rules merely require that the             HN21 Though the Texas Citizens Participation Act
pleadings provide fair notice of the claim and the relief       (TCPA), Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-
sought such that the opposing party can prepare a               27. 011, initially demands more information about the
defense. Tex. R. Civ. P. 45 and 47. Even the omission           underlying claim, the TCPA does not impose an
of an element is not fatal if the cause of action may be        elevated evidentiary standard or categorically reject
reasonably inferred from what is specifically stated.           circumstantial evidence. In short, it does not impose a
Moreover, under notice pleading, a plaintiff is not             higher burden of proof than that required of the plaintiff
required to set out in his pleadings the evidence upon          at trial. The Supreme Court of Texas accordingly
which he relies to establish his asserted cause of action.      disapproves those cases that interpret the TCPA to
But the Texas Citizens Participation Act, Tex. Civ. Prac.       require direct evidence of each essential element of the
& Rem. Code Ann. §§ 27.001-27.011. requires that on             underlying claim to avoid dismissal.
motion the plaintiff present "clear and specific evidence"
of "each essential element.  11
                                                                  Torts> Intentional Torts> Defamation> General Overview
                                                                  Torts> Business Torts> Trade Libel> General Overview
  Evidence > Burdens of Proof > Clear & Convincing Proof

  Torts> ... > Defamation> Elements> General Overview           HN22 Business disparagement and defamation are
                                                                similar in that both involve harm from the publication of
  Constitutional Law > ... > Fundamental
                                                                false information. The respective torts, however, serve
  Freedoms > Freedom of Speech > Strategic Lawsuits
  Against Public Participation
                                                                different interests. Whereas defamation actions chiefly
                                                                serve to protect the personal reputation of an injured
  Civil Procedure > ... > Defenses, Demurrers &                 party, a business disparagement claim protects
  Objections > Motions to Dismiss > Failure to State Claim      economic interests. Business disparagement or
  Civil                                                         injurious falsehood applies to derogatory publications
  Procedure > ... > Pleadings > Complaints > Requirements       about the plaintiff's economic or commercial interests.
  for Complaint                                                 The tort does not seek to redress dignitary harms to the
                                                                business owner, but rather redresses aspersions cast
HN20 Fair notice of a claim under the Texas procedural          on the business's commercial product or activity that
                                                 11
rules may require something less than clear and                 diminishes those interests.
specific evidence" of each essential element of the
claim. Because the Texas Citizens Participation Act               Torts> Business Torts> Trade Libel> General Overview
(TCPA), Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-
                                                                  Torts> Intentional Torts> Defamation> General Overview
27. 011, requires more, mere notice pleading - that is,
general allegations that merely recite the elements of a        HN23 A corporation or other business entity that asserts
cause of action - will not suffice. Instead, a plaintiff must   a claim for defamation may assert an additional or
provide enough detail to show the factual basis for its         alternative claim for business disparagement if it seeks
claim. In a defamation case that implicates the TCPA,           to recover economic damages for injury to the business.
pleadings and evidence that establishes the facts of            Impugning one's reputation is possible without
when, where, and what was said, the defamatory nature           disparaging its commercial interests and vice versa.
of the statements, and how they damaged the plaintiff           Depending on the circumstances, then, a plaintiff may
should be sufficient to resist a TCPA motion to dismiss.        have a claim for defamation, or for business
                                                                disparagement, or both.
  Civil
  Procedure > ... > Pleadings > Complaints > Requirements
                                                                  Torts> Business Torts> Trade Libel> General Overview
  for Complaint

  Civil Procedure > ... > Defenses, Demurrers &                 HN24 A number of examples of commercial
  Objections > Motions to Dismiss > Failure to State Claim      disparagement or trade libel that are not strictly
  Constitutional Law > ... > Fundamental                        speaking defamatory in the sense of dignitary harm
  Freedoms > Freedom of Speech > Strategic Lawsuits             include: A publication that says the defendant's product
  Against Public Participation                                  is poisonous and contaminates the land or one that says
                                                                the plaintiff's wood products are inferior and will not
  Evidence > Burdens of Proof > Allocation
                                                                stand up. A false statement that the ratings of the
  Evidence > Types of Evidence > Circumstantial Evidence        plaintiff's radio show are too low to justify continuing the
                                                                show. A publication falsely stating the price the plaintiff
                                                                                                             Page 6 of 17
                                                         In re Lipsky

charges for his goods or that the plaintiff is no longer          Torts > Business Torts > Trade Libel > General Overview
carrying on a business or has insufficient funds to
continue in business.                                           HN28 Corporations and other business entities have
                                                                reputations that can be libeled apart from the
  Torts> Business Torts> Trade Libel> Elements                  businesses they own, and such entities can prosecute
  Evidence > Burdens of Proof > Allocation
                                                                an action for defamation in their own names. Moreover,
                                                                a corporation or other business entity asserting a claim
  Evidence > Burdens of Proof > Clear & Convincing Proof        for business disparagement may also assert additional
  Constitutional Law > ... > Fundamental                        or alternative claims for defamation to recover non-
  Freedoms > Freedom of Speech > Strategic Lawsuits             economic general damages such as injury to reputation
  Against Public Participation                                  that are not recoverable on a business-disparagement
                                                                claim.
  Civil Procedure > ... > Defenses, Demurrers &
  Objections > Motions to Dismiss > Failure to State Claim
                                                                  Torts> ... > Defamation> Elements> General Overview

HN25 To defend against a dismissal motion, a plaintiff's          Torts> Intentional Torts> Defamation> Procedural Matters
burden under the Texas Citizens Participation Act, Tex.           Torts> ... > Defamation> Public Figures> Actual Malice
Civ. Prac. & Rem. Code Ann. §§ 27.001-27.011, is to
establish by clear and specific evidence a prima facie          HN29 Defamation's elements include: (1) the publication
case for each essential element of the claim in question.       of a false statement of fact to a third party; (2) that was
Tex. Civ. Prac. & Rem. Code Ann. § 27. 005(c). To               defamatory concerning the plaintiff; (3) with the requisite
prevail on a business disparagement claim, a plaintiff          degree of fault; and (4) damages, in some cases. The
must establish that: (1) the defendant published false          status of the person allegedly defamed determines the
and disparaging information about it; (2) with malice; (3)      requisite degree of fault. A private individual need only
without privilege; (4) that resulted in special damages to      prove negligence, whereas a public figure or official
the plaintiff.                                                  must prove actual malice. "Actual malice" in this context
                                                                means that the statement was made with knowledge of
  Torts > ... > Defamation > Remedies > Damages
                                                                its falsity or with reckless disregard for its truth. Finally,
  Torts > Remedies > Damages > Types of Damages                 the plaintiff must plead and prove damages, unless the
                                                                defamatory statements are defamatory per se.
HN26 Special damages are synonymous with economic
damages and are distinguishable from general                      Torts> Intentional Torts> Defamation> Procedural Matters
damages. General damages are recoverable under a                  Torts> Intentional Torts> Defamation> Defamation Per Se
defamation claim for non-economic losses, such as loss
of reputation and mental anguish.                                 Torts> ... > Defamation> Remedies> Damages

                                                                   Evidence > Inferences &
  Evidence > Burdens of Proof > Clear & Convincing Proof           Presumptions > Presumptions > Effects
  Civil Procedure > ... > Defenses, Demurrers &
  Objections > Motions to Dismiss > Failure to State Claim      HN30 Defamation per se refers to statements that are
                                                                so obviously harmful that general damages may be
  Constitutional Law > ... > Fundamental
                                                                presumed. General damages include non-economic
  Freedoms > Freedom of Speech > Strategic Lawsuits
                                                                losses, such as loss of reputation and mental anguish.
  Against Public Participation
                                                                Special damages, on the other hand, are never
HN27 Bare, baseless opinions do not create fact                 presumed as they represent specific economic losses
questions, and neither are they a sufficient substitute for     that must be proven. And even though Texas law
the clear and specific evidence required to establish a         presumes general damages when the defamation is per
prima facie case under the Texas Citizens Participation         se, it does not presume any particular amount of
Act (TCPA), Tex. Civ. Prac. & Rem. Code Ann. §§                 damages beyond nominal damages. Any award of
27. 001-27. 011. General averments of direct economic           general damages that exceeds a nominal sum is thus
losses and lost profits, without more, do not satisfy the       reviewed for evidentiary support.
minimum requirements of the TCPA.
                                                                   Torts > ... > Defamation > Elements > General Overview

  Torts> Intentional Torts> Defamation> General Overview           Torts> Intentional Torts> Defamation> Procedural Matters
                                                                                                          Page 7 of 17
                                                      In re Lipsky

HN31 It is well settled that the meaning of a publication,   reputation are presumed, although the presumption
and thus whether it is false and defamatory, depends on      alone will support only an award of nominal damages.
a reasonable person's perception of the entirety of a        Pleading and proof of particular damage is not required
publication and not merely on individual statements.         to prevail on a claim of defamation per se, and thus
                                                             actual damage is not an essential element of the claim
  Torts> Intentional Torts> Defamation> Defamation Per Se    to which the burden under the Texas Citizens
  Torts> Intentional Torts> Defamation> Procedural Matters   Participation Act, Tex. Civ. Prac. & Rem. Code Ann. §§
                                                             27.001-27.011, of clear and specific evidence might
HN32 When an offending publication qualifies as              apply.
defamation per se, a plaintiff may recover general
damages without proof of any specific loss.                  Judges: [**1] JUSTICE DEVINE delivered the opinion
                                                             of the Court.
  Torts> Intentional Torts> Defamation> Defamation Per
  Quod                                                       Opinion by: John P. Devine
  Torts> Intentional Torts> Defamation> Defamation Per Se
                                                             Opinion
  Torts> Intentional Torts> Defamation> Procedural Matters

HN33 The common law distinguishes defamation claims          rs84] ON PETITION FOR WRIT OF MANDAMUS
as either per se or per quod. Defamation per se refers to
statements that are so obviously harmful that general        JUSTICE DEVINE delivered the opinion of the Court.
damages, such as mental anguish and loss of                                                                              1
reputation, are presumed. Defamation per quod is             HN1 The Texas Citizens Participation Act (TCPA)
defamation that is not actionable per se. Defamation per     protects citizens who petition or speak on matters of
se is itself broken down into separate categories of         public concern from retaliatory lawsuits that seek to
falsehoods. Accusing someone of a crime, of having a         intimidate or silence them. Tex. Civ. Prac. & Rem. Code
foul or loathsome disease, or of engaging in serious         §§ 27.001-.011. The protection consists of a special
sexual misconduct are examples of defamation per se.         motion for an expedited consideration of any suit that
Remarks that adversely reflect on a person's fitness to      appears to stifle the defendant's communication on a
conduct his or her business or trade are also deemed         matter of public concern. Id. § 27.003. In reviewing that
defamatory per se. And whether a statement qualifies         motion, the trial court is directed to dismiss the suit
as defamation per se is generally a question of law. The     unless "clear and specific evidence" establishes the
common law distinction between defamation per se and         plaintiffs' "prima facie case." Id. § 27. 005{cJ. When
per quod has been criticized as anachronistic and has        applying the Act's requirement for clear and specific
been abandoned in some jurisdictions, but Texas has          evidence, however, the courts of appeals disagree
not abandoned this distinction.                              about the role of circumstantial evidence.

  Torts> Intentional Torts> Defamation> Defamation Per Se    Some courts hold that only direct evidence is relevant
                                                             when considering a motion to dismiss under the Act,
HN34 To qualify as defamation per se under the               while others have concluded that relevant circumstantial
category of injuring one in his business, the disparaging    evidence must also be considered. The court of
words must affect the plaintiff in some manner that is       appeals [**2) here considered circumstantial evidence,
peculiarly harmful to the plaintiff's trade, business, or    and we agree that clear and specific evidence under the
profession and not merely upon the plaintiff's general       Act includes relevant circumstantial evidence. 411
characteristics.                                             S. W.3d 530, 546 {Tex. App.-Fort Worth 2013}. We
                                                             further agree, generally, with the court of appeals's
  Torts> Intentional Torts> Defamation> Defamation Per Se    disposition of the proceedings below and accordingly
  Torts> ... > Defamation> Elements> General Overview        deny all relief requested here.

  Torts> Intentional Torts> Defamation> Procedural Matters
  Evidence> Inferences &
                                                             1
  Presumptions > Presumptions > Effects                       See Act of May 18, 2011, 82nd Leg., R.S., ch. 341, § 1, 2011
                                                             Tex. Gen. Laws 961 (stating that "Act may be cited as the
HN35 As defamation per se, damages to one's                  Citizens Participation Act'').
                                                                                                           Page 8 of 17
                                                     In re Lipsky

I. Background and Procedural History                         EPA's action and his expert's opinions.

Steven and Shyla Lipsky own several acres in                 The Lipskys thereafter sued Range and others involved
Weatherford, Texas. In 2005 they drilled a well on their     in developing their residential area. As to Range, they
property to a depth of about two hundred feet to provide     alleged that its tracking operations near their property
water to a cabin and boathouse. In 2009 they finished a      were negligent, grossly negligent, and a nuisance. They
house on the property, connecting the well to their new      asserted that Range's operations contaminated their
home. That same year, Range Resources Corporation            water well, causing the water to become flammable and
and Range Production Company drilled two gas wells           their home uninhabitable. Range answered the suit and
about a half-mile from the Lipskys' property.                moved to dismiss all claims as an improper collateral
                                                             attack on the Railroad Commission's ruling. Range also
A few months after moving into their new home, the
                                                             filed a counterclaim against the Lipskys and a third-party
Lipskys experienced mechanical problems with their           claim against Rich (the Lipskys' environmental
well. They contacted a well-servicing company, which         consultant)       alleging     defamation,       business
identified the problem as "gas locking.'' a condition        disparagement, and a civil conspiracy. The Lipskys and
typically associated with an excess of natural gas in the    Rich responded by moving to dismiss Range's counter-
ground water. A submersible pump's ability to transport      attack as an improper attempt to suppress their First
water from a well can be affected when too much gas is       Amendment rights          guaranteed r·s1    under the
in the water.                                                Constitution and protected by the Texas Citizens
                                                             Participation Act. Tex. Civ. Prac. & Rem. Code §
rsssJ   Concerned about the gas in their well water, the
                                                             27.005.
Lipskys contacted local r*3] health officials who
referred them to Alisa Rich, an environmental consultant     The trial court granted Range's motion to dismiss,
with Wolf Eagle Environmental. After tests, Rich             agreeing that the Lipskys' claims were an improper
confirmed the presence of methane and other gases in         collateral attack on the Commission's determination.
the well. About this time, Lipsky made a video of himself    The court also declined to dismiss Range's claims
lighting gas escaping from a garden hose attached to         against the Lipskys and Rich by denying their motions to
his well. To produce this effect, Lipsky connected the       dismiss under the Texas Citizens Participation Act. The
hose to a vent on his water well. He shared his video        Lipskys and Rich attempted an interlocutory appeal from
with the Environmental Protection Agency (EPA) and           this latter ruling, but the court of appeals dismissed the
the media, which reported on the flammable nature of         appeal for want of jurisdiction.
                                                                                                    2
                                                                                                       See Lipsky v.
Lipsky's water well. He also complained about the gas in     Range rsB61 Prod. Co., No. 02-12-00098-CV 2012
his well to the Texas Railroad Commission. Lipsky's
own investigation led him to believe that Range, the oil
and gas operator closest to his property, had some           2
                                                              At the time, the courts of appeals disagreed about whether
responsibility for contaminating his ground water.           the Texas Citizens Participation Act granted an interlocutory
                                                             appeal from a signed order denying dismissal. Compare
Both the EPA and Railroad Commission began
                                                             Jennings v. Wal/Builder Presentations Inc., 378 S. W.3d 519,
investigating Lipsky's complaints. The EPA initially         524-29 (Tex. App. Fort Worth 2012, pet. denied} (rejecting
concluded that Range's production activities had             interlocutory appeal), with San Jacinto Title Servs. of Corpus
contributed to the gas in the Lipskys' well water and that   Christi, LLC. v. Kingsley Props., LP. 452 S.W.3d 343, 349
the situation could be hazardous to health and safety.       (Tex. App. Corpus Christi 2013, pet. denied) (accepting
The federal agency ordered Range to provide the              interlocutory appeal); see also r*6] Justice Nora Longoria &
Lipskys potable water and to install explosivity meters at   Nathaniel Beal, 'What Is A SLAPP Case?" Interlocutory
their property.                                              Appeals and the Texas Citizens' Participation Act, 26 APP.
                                                             ADVOC. 390, 395-96 (2014). The Legislature has since
The       Railroad    Commission      completed      its     clarified that HN2 an interlocutory appeal is permitted from any
investigation r*4] a few months later. Although invited      interlocutory order denying a motion to dismiss under the
to participate in the Commission's evidentiary hearing,      TCPA. See Tex. Civ. Prac. & Rem. Code§ 51.014faJf12); see
the Lipskys declined. The Commission thereafter              also Miller Weisbrod, L.L.P. v. L/amas-Soforo, S. W.3d , ,
concluded that Range's operations in the area were not       2014 Tex. App. LEXIS 12745, 2014 WL 6679122, at *6 fTex.
                                                             App.-EI Paso 2014, no pet.). Although an interlocutory
the source of the contamination. Lipsky immediately
                                                             appeal is clearly the appropriate remedy going forward, we
denounced the Railroad Commission's decision in the
                                                             nevertheless consider the issues presented here in the context
media and continued to blame Range, pointing to the          of the original mandamus proceedings filed in this Court.
                                                                                                                 Page 9 of 17
                                                        In re Lipsky

Tex. App. LEXIS 7059, 2012 WL 3600014, at *1 (Tex.               evidence" that the plaintiff's claim "is based on, relates
App.-Fort Worth Aug. 23, 2012, pet. denied) (mem.                to, or is in response to the [movant's] exercise of: (1) the
                                                                                        4
op.). The court, however, allowed the challenge to               right of free speech; (2) the right to petition; 5 or (3) the
proceed as an original proceeding. 411 S. W 3d at 536.           right of association. 116 rsa7] Tex. Civ. Prac. & Rem.
Meanwhile, the EPA withdrew its administrative order             Code§ 27.005(b). If the movant is able to demonstrate
against Range without explanation. See Joint Stipulation         that the plaintiff's claim implicates one of these rights,
of Dismissal Without Prejudice, United States v. Range           the second step shifts the burden to the plaintiff to
Prod. Co., No. 3:11-CV-00116-F (N.D. Tex. Mar. 30,               "establish[] by clear and specific evidence a prima facie
2012).                                                           case for each essential element of the claim in
                                                                 question." Id. § 27. 005(c).
The court of appeals thereafter determined that the
Texas Citizens Participation Act required the dismissal          HN7 In determining whether the plaintiff's [**9] claim
of Range's claims against Lipsky's wife, Shyla, and his          should be dismissed, the court is to consider the
environmental consultant, Rich, and that the trial court         pleadings and any supporting and opposing affidavits.
had accordingly abused its discretion in not dismissing          Id. § 27.006(aJ. Moreover, the motion to dismiss
those claims. 411 S. W3d at 554. The court further               ordinarily suspends discovery, id. § 27.003fcJ, although
determined that the TCPA did not similarly require               the statute leaves the possibility for a court to order
dismissal of all of Range's claims against Lipsky.3 Id. at       limited discovery for "good cause" as it relates to the
546. The court of appeals granted mandamus relief to             motion itself, id. § 27.006(b). Within defined time limits,
Lipsky's wife and consulant, while denying similar relief        the court must then rule on the motion and must dismiss
to Lipsky, prompting both Lipsky and Range to seek               the plaintiffs claim if the defendant's constitutional rights
mandamus relief in this Court. In their respective               are implicated and the plaintiff has not met the required
petitions, Lipsky argues that the TCPA required the trial        showing of a prima facie case. Id. § 27. 005. The
court to dismiss all claims [**7] against him also, while        determination is to be made promptly, ordinarily within
Range argues that the TCPA did not require the                   150 days of service of the underlying legal action. See
dismissal of any claims. The Lipsky petition accordingly         id. §§ 27.003(bJ, .004(a), .005(a).
concludes that the trial court abused its discretion in
failing to grant his TCPA motion. The Range petition, on         In this proceeding, only the second step is at issue-the
the other hand, concludes that the court of appeals              question being whether the plaintiff has met its burden
abused its discretion in granting mandamus relief to             of "establish[ing] by clear and specific evidence a prima
Lipsky's wife, his environmental consultant, and Lipsky          facie case for each essential element of the claim in
himself (in part) because the TCPA did not require it.           question." Id. § 27.005(cJ. The parties disagree about
                                                                 the evidentiary burden this language imposes. Lipsky
II. The Texas Citizens Participation Act                         argues that the phrase "clear and specific evidence"
                                                                 elevates the evidentiary standard, requiring Range to
As already mentioned, HN3 the Texas Citizens                     produce direct evidence as to each element of its claim.
Participation Act or TCPA protects citizens from                 Range, on the other r·10J hand, argues that
retaliatory lawsuits that seek to intimidate or silence
them on matters of public concern. See House Comm.
on Judiciary & Civil Jurisprudence, Bill Analysis, Tex.          4
                                                                   HN4 The "right of free speech" refers to communications
H.B. 2973, 82nd Leg., R.S. (2011). The Act provides a
                                                                 related to "a matter of public concern" which is defined to
special procedure for the expedited dismissal of such
                                                                 include an issue related to: "(A) health or safety; (B)
suits. A two-step process is initiated by motion of a
                                                                 environmental, economic, or community well-being; (C) the
defendant who believes that the lawsuit responds to the          government; (D) a public official or public figure; or (E) a good,
defendant's valid exercise of First Amendment rights.            product, or service in the marketplace." Id. § 27.001(3),
Under the first step, [**8] the burden is initially on the       f7)(Al-fE).
defendant-movant to show "by a preponderance of the
                                                                 5
                                                                  HN5 The "right to petition" refers to a wide range of
                                                                 communications relating to judicial, administrative, or other
                                                                 governmental proceedings. Id.§ 27.001(4).
3
 The court of appeals concluded that the trial court should
                                                                 6
have dismissed the civil conspiracy and aiding and abetting        HN6 The "right of association" refers to people "collectively
claims against all defendants, including Steven Lipsky. Id. at   express[ing], promotpng], pursu[ing], or defend[ing] common
551-52.                                                          interests." Id. § 27.001f2J.
                                                                                                            Page 10 of 17
                                                      In re Lipsky

circumstantial evidence and rational inferences may be        (Tex. Civ. App.-Tyler 1971, no writ) and S. Cantu &
considered by the court in determining whether clear          Son v. Ramirez, 101 S. W2d 820, 822 (Tex. Civ. App.
and specific evidence exists and that the TCPA's prima-       San Antonio 1936, no writ)); Rehak Creative Servs., 404
facie-case requirement does not impose a higher or            S. W3d at 726 (relying on same two cases).
unique evidentiary standard. The dispute mirrors a
similar disagreement among the courts of appeals.             Both cases involved fraud claims. In McDonald, the trial
                                                              court granted summary judgment on the fraud claim,
HNB Some courts, focusing on the requirement of "clear        and the appellate court affirmed, concluding no material
and specific evidence," have interpreted the statute to       fact issue existed as to one or more of the claim's
require a heightened evidentiary standard, unaided by         essential elements. McDonald, 464 S. W.2d at 456. The
inferences. See Shipp v. Malouf, 439 S. W.3d 432, 439         court noted that the summary judgment could not be
(Tex. App.-Dallas 2014, pet. denied); Young v. Krantz,        reversed on the presumption of fraud but rather required
434 S.W.3d 335, 342-43 ([ex. App.-Dallas 2014, no             the existence of a fact issue raised by more than mere
/JfilJ.; KBMT Operating Co. v. Toledo, 434 S.W.3d 276,        conjecture:
282 (Tex. App.-Beaumont 2014, pet. granted); Farias
v. Gana, 426 S.W.3d 808, 814 (Tex. App.-San                          As to appellants' claim of fraud, the burden was
Antonio 2014, pet. filed); Rio Grande H20 Guardian v.                upon them to raise a fact issue as to its existence
Robert Muller Family P'ship, Ltd., No. 04-13-00441-cv,               by competent evidence. This burden could not be
2014 Tex. App. LEXIS 915, 2014 WL 309776, at *2                      discharged in the absence of a showing that all of
(Tex. App.-San Antonio Jan. 29, 2014, no pet.) (mem                  the elements of actionable fraud were present.
op.); Sierra Club v. Andrews Cnty., Tex., 418 S.W.3d                 Mere conjecture or evidence which does not
 711, 715 (Tex. App.-EI Paso 2013, pet. filed);                      necessarily tend to that conclusion is insufficient.
Alphonso v. Deshotel, 417 S. W.3d 194, 198 (Tex.                     Charges of fraud must be established by clear and
App.-EI Paso 2013, no pet.J; Fitzmaurice v. Jones, 417               specific         evidence          unaided         by
S.W3d 627, 632 (Tex. App.-Houston [14th Dist.12013,                  presumptions, [**12] inferences or intendments.
no pet.J; Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d            Until or unless fraud is proved, the presumption is
 716, 726 (Tex. App.-Houston [14th Dist.1 2013, pet.                 in favor of the fairness of a transaction and specific
denied). Implicit in these decisions is the assumption               acts of fraud must be both alleged and proved by
that circumstantial evidence is not sufficiently "clear and          appellants in response to appellee's motion for
       11
specific to satisfy the statutory burden. Other courts,              summary judgment.
focusing on the prima-facie-case language, have
                                                              Id. (emphasis added).
concluded that the statute permits the court to draw
 rational inferences from circumstantial evidence when
                                                              The context establishes that the court was not
determining whether the plaintiff has met its threshold
                                                              attempting to define "clear and specific evidence" to
factual burden. See Schimmel [*5881 v. McGregor. 438
                                                              exclude circumstantial evidence or to require only direct
 S. W3d 847, 855 (Tex. App.-Houston [1st Dist.12014,
                                                              evidence to create a fact question. Such a definition
pet. denied); Combined Law Enforcement Ass'ns of Tex.
                                                              would, of course, have been erroneous "[s]ince HN10
 v. Sheffield, No. 03-13-00105-CV, 2014 Tex. App.
                                                              intent to defraud is not susceptible to direct proof [and]
 LEXIS 1098, 2014 WL 411672, at *10 (Tex. App.-
                                                              invariably must be proven by circumstantial evidence."
 Austin Jan. 31, 2014, pet. filed) (mem. op.); Newspaper
                                                              Spo/iaric v. Percival Tours, Inc., 708 S. W 2d 432, 435
 Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416
                                                              (Tex. 1986). Similarly, the court in S. Cantu & Son did
 S.W3d 71, 80 (Tex. App.-Houston [1st Dist.I 2013,
                                                              not define "clear and specific evidence" to exclude
 pet. denied}; In re Lipskv, 411 S. W.3d at 539.
                                                              circumstantial evidence but instead said that fraud could
                                                              not be inferred from the "vague, indefinite, and
HN9 The statute does not define clear and specific
                                      11
                                                                                                               7
                                                              inconclusive" testimony of interested witnesses.
evidence," but the courts that r•111 have interpreted the
phrase to impose a heightened evidentiary standard
have purportedly found support in the case law. Those
                                                              7
courts invariably rely on two cases predating the Act for         The court wrote:
the proposition that "clear and specific evidence" means
"evidence unaided by presumptions, inferences or                     Charges of fraud must be established by clear and
                                                                     specific evidence, which may not be aided by
intendments." See, e.g., Sierra Club, 418 S. W3d at 715
                                                                     presumptions or inferences, or intendment. The evidence
(citing McDonald v. Clemens, 464 S. W. 2d 450, 456
                                                                     and findings of the representations complained of in this
                                                                                                              Page 11 of 17
                                                         In re Lipsky

HN11 Circumstantial evidence can, of course, be vague,            HN14 All evidentiary standards, including clear and
indefinite, or inconclusive, but it is not so by definition.      convincing evidence, recognize the relevance of
Rather, rss9] it is simply indirect evidence that creates         circumstantial evidence. In fact, we have acknowledged
an inference to establish a central fact. See Felker v.           that the determination of certain facts in particular cases
Petro/on, Inc., 929 S.W.2d 460, 463-64 fTex. App.-                may exclusively depend on such evidence. See, e.g.,
Houston {1st Dist.1 1996, writ denied). It is admissible          Bentley, 94 S. W.3d at 596 (noting, in a defamation
unless the connection between the fact and the                    case, that claims involving an element of a
inference is too weak to be of help in deciding the case.         defendant's r•1s1 state of mind "must usually [] be
Tex. R. Evid. 401-02. The common law has developed                proved by circumstantial evidence"). Circumstantial
several distinct evidentiary standards, but none of these         evidence may be used to prove one's case-in-chief or to
standards categorically rejects the use of circumstantial         defeat a motion for directed verdict, and so it would be
evidence.                                                         odd to deny its use here to defeat a preliminary motion
                                                                  to dismiss under the TCPA. That the statute should
HN12 The applicable evidentiary standard is generally             create a greater obstacle for the plaintiff to get into the
determined by the nature of the case or particular claim.         courthouse than to win its case seems nonsensical. See
Criminal cases require proof beyond a reasonable                  Carreras v. Marroquin, 339 S. W.3d 68, 73 (Tex. 2011)
doubt, a near certainty, whereas civil cases typically            (noting that we "interpret statutes to avoid an absurd
apply the preponderance-of-the-evidence standard, that            result").
is, a fact-finder's determination that the plaintiff's version
of the events is more likely than not true. Some civil            HN15 The TCPA's purpose is to identify and summarily
claims, including some defamation claims, elevate the             dispose of lawsuits designed only to chill First
evidentiary standard to require proof by clear-and-               Amendment rights, not to dismiss meritorious lawsuits.
convincing evidence. Bentley v. Bunton, 94 S. W.3d 561,           See Tex. Civ. Prac. & Rem. Code § 27. 002 (balancing
596 fTex. 2002). This standard requires that                      "the constitutional rights of persons to petition, speak
the [**14] strength of the plaintiff's proof produces in the      freely, associate freely, and otherwise participate in
mind of the trier of fact a firm belief or conviction as to       government to the maximum extent permitted by law"
the truth of the allegations. Id. at 597.                         against "the rights of a person to file meritorious lawsuits
                                                                  for demonstrable injury"). To accomplish its purpose, the
HN13 Clear and specific evidence is not a recognized              Act endorses a summary process, requiring judicial
evidentiary standard. Although it sounds similar to clear         review of the pleadings and limited evidence, typically
and convincing evidence, the phrases are not legally              within 150 days following service. Tex. Civ. Prac. &
synonymous. The Legislature well understands the                  Rem. Code §§ 27.003fbJ, rs90J .004fa}, .005faJ;
clear-and-convincing-evidence standard and uses that              Jennings, 378 S. W.3d at 526. To defeat an appropriate
standard when it so intends. See, e.g., Tex. Civ. Prac. &         TCPA motion to dismiss, the opponent must
Rem. Code §§ 18.033(c), 41.001(2), 41.003(b), {Ql,                establish [**16] "by clear and specific evidence a prima
                       8
134A.004fb}. 147.122. But even were we to assume                  facie case for each essential element of the claim in
that the Legislature intended to apply the clear-and-             question." Tex. Civ. Prac. & Rem. Code§ 27.005fc).
convincing standard in this statute, the statute would still
not exclude circumstantial evidence.                              As discussed, HN16 neither the Act nor the common
                                                                  law provides a definition for "clear and specific
                                                                  evidence. 119 Words and phrases that are not defined by
     case are vague, indefinite, and inconclusive, and,
                                                                  statute and that have not acquired a special or technical
     moreover, are so qualified by the testimony [**13] of
     appellee and her sister-in-law, upon which her case rests,
                                                                  meaning are typically given their plain or common
     as to rob them of the implications of active fraud           meaning. FKM P'ship, Ltd. v. Bd. of Regents of Univ. of
     necessary to destroy a written contract.                     Hous. Sys., 255 S.W.3d 619, 633 (Tex. 2008). The
                                                                  words "clear'' and "specific" in the context of this statute
S. Cantu & Sons, 101 S. W.2d at 822.

8
 The phrase 11clear and specific evidence" appears in only
                                                                  9
three statutes. See Tex. Civ. Prac. & Rem. Code §§ 22.025,         Before the TCPA's enactment, the phrase appeared in two
27.005fc); Tex. Code Crim Proc. art. 38.11, §6. "Clear and        reported cases. See McDonald, 464 S. W.2d at 456; S. Cantu
specific showing" appears in two others. See Tex. Civ. Prac. &    & Son, 101 S. W.2d at 822. Since its enactment, the phrase
Rem. Code§ 22.024; Tex. Code Crim. Proc. art. 38.11 §§            has appeared in over thirty reported cases tied to a discussion
4fa), {Ql, 5fa).                                                  of the statute.
                                                                                                           Page 12 of 17
                                                         In re Lipsky

have been interpreted respectively to mean, for the              evidence" of each essential element of the claim.
former, "'unambiguous,' 'sure,' or 'free from doubt"' and,       Because the Act requires more, mere notice pleading-
for the latter, "'explicit' or 'relating to a particular named   that is, general allegations that merely recite the
thing."' See KTRK Television, Inc. v. Robinson, 409              elements of rss11 a cause of action-will not suffice.
S.W3d 682, 689 fTex. App.-Houston (1st Dist.I 2013,              Instead, a plaintiff must provide enough detail to show
pet. denied) (quoting BLACK'S LAW DICTIONARY 268,                the factual basis for its claim. In a defamation case that
1434 (8th ed. 2004)).                                            implicates the TCPA, pleadings and evidence that
                                                                 establishes the facts of when, where, and what was
HN17 The statute, however, requires not only "clear and          said, the defamatory nature of the statements, and how
specific evidence" but also a "prima facie case." In             they damaged the plaintiff should be sufficient to resist a
contrast to "clear and specific evidence," a "prima facie        TCPA motion to dismiss.
case" has a traditional legal meaning. It refers to
evidence sufficient as a matter of law to establish a            HN21 Though the TCPA initially demands more
given fact if it is not rebutted r•111 or contradicted.          information about the underlying claim, the Act does not
Simonds v. Stano/ind Oil & Gas Co.• 134 Tex. 348, 136            impose an elevated evidentiary standard or categorically
S.W.2d 207, 209 (Tex. 1940). It is the "minimum                  reject circumstantial evidence. In short, it does not
quantum of evidence necessary to support a rational              impose a higher burden of proof than that required of
inference that the allegation of fact is true." In re E.I.       the plaintiff at trial. We accordingly disapprove those
DuPont de Nemours & Co., 136 S.W.3d 218. 223 (Tex.               cases that interpret the TCPA r•1s1 to require direct
2004} (per curiam) (quoting Tex. Tech Univ. Health               evidence of each essential element of the underlying
Scis. Ctr. v. Apodaca, 876 S.W.2d 402, 407 (Tex.                 claim to avoid dismissal. With that understanding of the
App.-EI Paso 1994, writ deniedJJ.                                Act's requirements, we turn to pleadings and evidence
                                                                 in this case.
HN18 The TCPA's direction that a claim should not be
dismissed "if the party bringing the legal action                Ill. Steven Lipsky's Petition
establishes by clear and specific evidence a prima facie
case for each essential element of the claim in question"        Range sued Steven Lipsky, alleging defamation,
thus describes the clarity and detail required to avoid          business disparagement, and civil conspiracy. The court
dismissal. Tex. Civ. Prac. & Rem. Code § 27. 005(cJ              of appeals found no evidence of a civil conspiracy, but
(emphasis added). Courts are further directed to make            some evidence of the other claims, concluding "that the
that determination early in the proceedings, typically on        trial court did not abuse its discretion by denying Steven
the basis of the pleadings and affidavits. But pleadings         Lipsky's motion to dismiss Range's defamation and
that might suffice in a case that does not implicate the         business disparagement claims." 411 S.W.3d at 547.
TCPA may not be sufficient to satisfy the TCPA's "clear          Contrary to the court of appeals's opinion, Lipsky argues
and specific evidence" requirement.                              that no clear and specific evidence shows he defamed
                                                                 Range or disparaged its business. He concludes then
HN19 Our procedural rules merely require that the                that the trial court should have granted his motion to
pleadings provide fair notice of the claim and the relief        dismiss pursuant to the TCPA.
sought such that the opposing party can prepare a
defense. See Tex. R. Civ. P. 45 & 47. Even the                   HN22 Business disparagement and defamation are
omission of an element is not fatal if the cause of action       similar in that both involve harm from the publication of
"may be reasonably inferred from what is specifically            false information. Waste Mgmt. of Tex., Inc. v. Tex.
stated." Boyles v. Kerr, 855 S. W.2d 593, 601 (Tex.              Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 155 fTex.
1993}. Moreover, under notice pleading, a plaintiff is not       2014}. The respective torts, however, serve different
required to "set out in his pleadings the r*1 B] evidence        interests. Whereas "defamation actions chiefly serve to
upon which he relies to establish his asserted cause of          protect the personal reputation of an injured party, [] a
action." Paramount Pipe & Supply Co. v. Muhr. 749                business disparagement claim protects economic
S. W.2d 491, 494-95 (Tex. 1988}. But the TCPA requires           interests." Forbes Inc. v. Granada Biosciences, Inc.. 124
that on motion the plaintiff present "clear and specific         S. W.3d 167. 170 fTex. 2003}. Business disparagement
evidence" of "each essential element."                           or "injurious r•201 falsehood applies to derogatory
                                                                 publications about the plaintiff's economic or commercial
HN20 Fair notice of a claim under our procedural rules           interests." 3 DAN B. DOBBS, PAUL T. HAYDEN & ELLEN M.
                                          11
thus may require something less than clear and specific          BUBLICK, THE LAW OF TORTS§ 656, at 615 (2d ed. 2011 ).
                                                                                                                  Page 13 of 17
                                                            In re Lipsky

The tort does not seek to redress dignitary harms to the             S. W.2d at 766). Lipsky contends that the trial court
business owner, but rather redresses aspersions cast                 should      have    dismissed   Range's      business-
on the business's commercial product or activity that                disparagement claim because no evidence established
diminishes those interests. Hurlbut v. Gulf At/. Life Ins.           that his remarks caused Range any special or economic
Co., 749 S.W.2d 762, 766-67 /Tex. 1987).                             damages.

HN23 A corporation or other business entity that asserts             The court of appeals disagreed. It concluded that an
a claim for defamation may assert an additional or                   affidavit from Range's senior vice president was
alternative claim for business disparagement if it seeks             sufficient proof of Range's damages, at this stage, to
to recover economic damages for injury to the business.              defeat Lipsky's motion to dismiss. See 411 S. W.3d at
Burbage v. Burbage. 447 S.W.3d 249. 261 n.6 /Tex.                    547 (noting that the affidavit "provided the trial court with
2014}. Impugning one's reputation is possible without                minimum but sufficient facts, at this stage in the
disparaging its commercial interests and vice versa.                 litigation, to raise a rational inference, and therefore
Depending on the circumstances, then, a plaintiff may                serve as prima facie proof' of Range's losses).
have a claim for defamation, or for business
                        10
disparagement, or both.                                              Range's vice president averred in general terms that
                                                                     Lipsky's statements caused Range to suffer "direct
rs92J    A.      Business       Disparagement         (Injurious     pecuniary and economic losses and costs, lost profits,
Falsehood)                                                           loss of its reputation, and loss of goodwill in the
                                                                     communities in which it operates ... in excess of three
HN25 To defend against Lipsky's dismissal motion,                    million dollars. 1112 The court of appeals concluded that
Range's burden under the TCPA was to "establish[] by                 the affidavit, "by stating that Range had suffered direct
clear and specific evidence a prima facie case for each              economic losses and 'lost profits,"' was sufficient "to
essential element of the claim in question." Tex. Civ.               raise a rational inference . . . that Range lost 'trade or
Prac. & Rem. Code § 27.00S(c). "To prevail on a                      other dealings' as a result of statements made by
business disparagement claim, a plaintiff must establish             Steven Lipsky." Id. (quoting Hurlbut. 749 S. W.2d at
that (1) the defendant published false and disparaging               76l).
information about it, (2) with malice, (3) without
                                                 11
privilege, (4) that resulted in special damages to the               Lipsky argues, however, that the affidavit is conclusory
          11
plaintiff. Forbes, 124 S. W.3d at 170 (citing Hurlbut. 749
                                                                     12
                                                                       The court of appeals quoted from the vice president's
10
                                                                     affidavit as indicated below: r*23]
  Professor Dobbs offers HN24 a number of examples of
commercial disparagement or trade libel that are not strictly              As a direct and proximate result and consequence of the
speaking defamatory in the sense of dignitary harm:                        ... false, disparaging, and defamatory public statements
                                                                           made by Steven Lipsky . . . regarding Range and its
     [A] publication that says the defendant's product is                  operations, Range's business and reputation have been
                                                 a
     poisonous and contaminates the land or one that says                  harmed . . . . The numerous false, disparaging, and
     the plaintiffs wood products are inferior and will not stand          defamatory public statements made by Mr. Lipsky . . .
     up.... A false statement that the ratings [**21] of the               have caused Range to be associated in the public as a
     plaintiffs radio show are too low to justify continuing the           polluter of water and the environment, and nothing could
     show . . . . [A] publication falsely stating the price the            be further from the truth.
     plaintiff charges for his goods [or] that the plaintiff is no
     longer carrying on a business or has insufficient funds to            ... As a direct and proximate result and consequence of
     continue in business.                                                 the false, disparaging, and defamatory statements made
                                                                           by Mr. Lipsky ... , Range has suffered direct pecuniary
3 DAN 8. DOBBS, PAUL T. HAYDEN & ELLEN M. BUBLICK, THE l.AW                and economic losses and costs, lost profits, loss of its
OF TORTS§ 656, at 618-19 (2d ed. 2011) (footnotes omitted).                reputation, and loss of goodwill in the communities in
                                                                           which it operates. To date, the damages suffered by
11
   HN26 Special damages are synonymous with economic                       Range as a direct and proximate result and consequence
damages      and     are    distinguishable from  general                  of the conspiracy and . . . defamatory public statements
damages. [**22) General damages are recoverable under a                    made by Lipsky and Rich are in excess of three million
defamation claim for non-economic losses, such as loss of                  dollars.
reputation and mental anguish. Hancock v. Varivam, 400
S. W.3d 59, 65 (Tex. 2013).                                          411 S. W.3d at 546-47 {omissions in original).
                                                                                                        Page 14 of 17
                                                      In re Lipsky

and therefore insufficient to satisfy the TCPA's              at 146 n. 7. The status of the person allegedly defamed
requirement of "clear and specific evidence, 11 and we        determines the requisite degree of fault. A private
agree. HN27 Bare, baseless opinions do not                    individual need only prove negligence, whereas a public
create r*24] fact questions, and neither are they a           figure or official must prove actual malice. WFAA-TV,
sufficient substitute for the clear and specific evidence     Inc.• 978 S. W.2d at 571. "Actual malice" in this context
required to establish a prima facie case under the            means that the statement was made with knowledge of
TCPA. See Elizondo v. C5931 Krist, 415 S.W.3d 259,            its falsity or with reckless disregard for its truth.
264 fTex. 2013) ("Conclusory statement[s] . . . [are]         Huckabee v. Time Warner Entm't Co., 19 S.W.3d 413.
insufficient to create a question of fact to defeat           420 (Tex. 2000). Finally, the plaintiff must plead
summary judgment."); City of San Antonio v. Pollock.          and r•2s1 prove damages, unless the defamatory
284 S. W.3d 809. 816 fTex. 2009) (holding conclusory,         statements are defamatory per se. Waste Mgmt. of
baseless testimony to be no evidence). Opinions must          Tex., 434 S. W.3d at 162 n. 7.
be based on demonstrable facts and a reasoned basis.
Elizondo, 415 S. W.3d at 265. We accordingly disagree         HN30 Defamation per se refers to statements that are
with the court of appeals that general averments of           so obviously harmful that general damages may be
direct economic losses and lost profits, without more,        presumed. Hancock, 400 S.W.3d at 63-64. General
satisfy the minimum requirements of the TCPA.                 damages include non-economic losses, such as loss of
Although the affidavit states that Range "suffered direct     reputation and mental anguish. Id. Special damages, on
pecuniary and economic losses," it is devoid of any           the other hand, are never presumed as they represent
specific facts illustrating how Lipsky's alleged remarks      specific economic losses that must be proven. Id. at 65-
about Range's activities actually caused such losses.         66. And even though Texas law presumes general
See, e.g., Burbage. 447 S.W.3d at 262 {noting that a          damages when the defamation is per se, it does not
jury could not reasonably infer that cancellations for a      "presume any particular amount of damages beyond
funeral home business were caused by defamation               nominal damages." Salinas v. Salinas. 365 S.W.3d 318.
when any number of reasons could have caused the              320 (Tex. 2012) {per curiam). Any award of general
cancellations).                                               damages that exceeds a nominal sum is thus reviewed
                                                              for evidentiary support. Burbage. 447 S. W.3d at 259;
Range, however, asserted not only business                    see also Bentley, 94 S. W. 3d at 606-07 (criticizing award
disparagement but also defamation. HN28 Corporations          of mental anguish damages in defamation per rs94] se
and other business entities have reputations that can be      case because it was excessive and beyond any figure
libeled apart from the businesses they own, and such          the evidence supported).
entities can prosecute r·2s1 an action for defamation in
their own names. See Waste Mgmt. of Tex .. 434 S. W.3d        { 1) The Falsehoods
at 147, 150-51 & n.35 {recognizing that a corporation,
                                                              Lipsky complains that the trial court should have
as owner of a business, may sue for defamation that
                                                              dismissed the defamation claim against him because
injures its reputation). Moreover, a corporation or other
                                                              Range failed to establish the defamatory nature of his
business entity asserting a claim for business
                                                              alleged statements. The court of appeals listed the
disparagement may also assert additional or alternative
                                                              following   published    statements   as    potentially
claims for defamation to recover non-economic general
                                                              defamatory to Range:
damages such as injury to reputation that are not
recoverable on a business-disparagement claim. Id. at                · Range's drilling went under the Lipskys house
 155-156 & n.81. We turn then to Range's defamation                  while omitting that Range's wellbore r•211 was
claim and Lipsky's complaint that the trial court should             over a mile below the surface;
have also dismissed it.
                                                                     · the Lipskys' well no longer pumped water (when it
B. Defamation                                                        actually could);

HN29 Defamation's elements include (1) the publication               · the Lipskys had found unnatural detergents in the
of a false statement of fact to a third party, (2) that was          water;
defamatory concerning the plaintiff, (3) with the requisite
degree of fault, and (4) damages, in some cases.                     · the Lipskys could not live in their home (although
WFAA-TV. Inc. v. Mclemore, 978 S. W.2d 568, 571                      they continued to do so);
fTex. 1998); see also Waste Mgmt. of Tex .. 434 S. W.3d
                                                                                                           Page 15 of 17
                                                       In re Lipsky

    · Range would eventually "own" the Lipskys' home           nevertheless continued its investigation.
    (which implied that Range was responsible for
    contaminating the Lipskys' water source and would          Meanwhile, the EPA decided that Range's two gas wells
    be liable for doing so);                                   were an "imminent and substantial endangerment to a
                                                               public drinking water aquifer," and issued an Emergency
    · Range was politically powerful and had prevailed         Administrative Order to that effect on December 7
    with the Railroad Commission through corruption,           2010. The next day, rs95] the Commission issued it~
    even though the Railroad Commission had                    Notice of Hearing, inviting the EPA and the Lipskys to
    considered extensive evidence to support its               participate in an evidentiary hearing on the cause of the
    decision and the Lipskys had not participated in the       aquifer's contamination. Neither the EPA nor the Lipskys
    Railroad Commission's hearing;                             chose to participate, however.

    · the Lipskys could literally light their water on fire,   After hearing testimony on the groundwater
    and the water was unsafe to drink;                         investigation and Range's operations in the area, as well
    . Range's drilling operations contaminated the             as expert testimony on geology, hydrogeology,
                                                               microseismic analysis, hydraulic fracturing, geochemical
    water (even though the Ra1·1road Comm1·ss1·on had          gas fingerprinting, and petroleum engineering, the
    found that the operations had not); and                    Commission's hearing examiners concluded that
                                                               Range's gas wells had not contributed to the
    · Range treated the Lipskys like "criminals."
                                                               contamination of any domestic water wells. The
411 S.W.3d at 545 (footnotes omitted). Lipsky argues           examiners concluded instead that the Strawn formation
that these statements are not defamatory either                was the most likely source of the gas in the Lipskys'
because they are true, do not explicitly refer to Range,       well.
are unverifiable statements of opinion, or are statements
                                                               The Strawn is a shallow formation, lying directly beneath
subject to a bona fide scientific dispute. Lipsky made
                                                               the Trinity aquifer at a depth of 200 to 400 feet. There
these [**28] statements to the media and to his family
                                                               had been gas production from the Strawn in r*30] the
and friends, as well as to the EPA, the Parker County
                                                               mid-1980s about a mile from Range's current wells.
Appraisal Review Board, and the Texas Railroad
                                                               Range's two wells, however, did not produce from the
Commission.
                                                               Strawn. They were instead completed in the Barnett
                                                               Shale, a formation lying more than a mile below the
HN31 "It is well settled that the meaning of a publication,
                                                               aquifer. And although Range used hydraulic fracturing
and thus whether it is false and defamatory, depends on
                                                               of the Barnett Shale to extract its gas, the examiners
a reasonable person's perception of the entirety of a
                                                               found that this caused no communication with the
publication and not merely on individual statements."
                                                               aquifer, as nearly a mile of rock remained between the
Bentley. 94 S. W. 3d at 579 (internal quotation marks
                                                               highest fracture point and the aquifer. The examiners
omitted). While some of the statements may, in
                                                               further confirmed the mechanical integrity of Range's
isolation. not be actionable, in looking at the entirety of
                                                               wells, finding its production casings properly cemented
Lipsky's publications the gist of his statements were that
                                                               and in compliance with the Texas Commission on
Range was responsible for contaminating his well water
                                                               Environmental Quality's recommendations for water
and the Railroad Commission was unduly influenced to
                                                               quality protection. The examiners noted that gas
rule otherwise.
                                                               contamination in water wells throughout the county had
The Commission's investigation coincided with the              occurred since at least 2003, several years before
EPA's, beginning in August 2010, after Lipsky                  Range drilled the two wells in question.
complained to the Abilene District Office about gas in
his water well. That month, the Commission collected           Adopting the examiners' findings and conclusions, the
water and gas samples from the Lipskys' well, asked            Railroad Commission signed its final order on March 22,
Range to test the mechanical integrity of its wells, and       2011. Afterward, Lipsky was quoted in news articles to
further obtained a gas analysis from Range's operations        state that the Commission's decision was "ridiculous,"
for comparison with the gas in the Lipskys' well. After        the product of a "corrupt system," and that "it was kind
comparing the respective gas samples, the Abilene              of sad." Although he had not participated in [**31] the
District      Office    found        them    to     have       hearing, he referenced the earlier EPA order and his
"distinct [**29] characteristics, 11 but the Commission        own expert, who suspected that the contamination
                                                               resulted from Range's nearby drilling. Thus, despite the
                                                                                                       Page 16 of 17
                                                      In re Lipsky

Commission's conclusions to the contrary, Lipsky              itself broken down into separate categories of
continued to maintain that Range was responsible for          falsehoods. Accusing someone of a crime, of having a
contaminating the aquifer and his domestic water well.        foul or loathsome disease, or of engaging in serious
The court of appeals concluded that there was some            sexual misconduct are examples of defamation per se.
evidence of a defamatory statement concerning Range           Moore v. Waldrop, 166 S.W.3d 380, 384 /Tex. App.-
sufficient to defeat Lipsky's TCPA motion to dismiss,         Waco 2005, no pet.). Remarks that adversely reflect on
and we agree. His statements were not presented as            a person's fitness to conduct his or her
opinion but were "sufficiently factual to be susceptible of   business r*33] or trade are also deemed defamatory
being proved true or false. 11 Milkovich v. Lorain Journal    per se. Hancock, 400 S. W.3d at 66. And whether a
Co., 497 U.S. 1, 21, 110 S. Ct. 2695, 111 L. Ed. 2d 1         statement qualifies as defamation per se is generally a
(1990).                                                       question of law. Id.

(2) The Damages                                               Range argues that Lipsky's remarks in this case were
                                                              defamatory per se because they reflected on Range's
Lipsky also argues that the trial court should have           fitness and abilities as a natural gas producer. HN34 To
dismissed Range's defamation claim because no                 qualify as defamation per se under this category the
evidence established that his remarks caused the              disparaging words must affect the plaintiff in some
company specific damages. The court of appeals again          manner that is peculiarly harmful to the plaintiff's trade,
disagreed. It concluded that the affidavit from Range's       business, or profession and not merely upon the
senior vice president, which discussed Range's losses         plaintiff's general characteristics. See id. at 66-67
in very general terms, was sufficient to defeat Lipsky's      (noting that a statement injures one in his profession
TCPA motion to dismiss. See 411 S.W.3d at 547. As we          when it would "adversely affect his fitness for the proper
have already determined, the vice president's affidavit       conduct" of the business). Range submits that by being
was insufficient proof of Range's special damages for         falsely branded as a polluter and a threat to public
purposes of the TCPA.                                         health and safety, Lipsky has portrayed Range as
                                                              incompetent, even reckless, as a gas producer, thereby
Range argues, however, that it did [**32) not have to         injuring the company's reputation.
submit proof of special damages as part of its
defamation claim because Lipsky's statements were             Environmental responsibility is an attribute particularly
defamatory rs9&] per se. HN32 When an offending               important to those in [**34) the energy industry-none
publication qualifies as defamation per se, a plaintiff       more so than natural gas producers, such as Range,
may recover general damages without proof of any              who employ horizontal drilling and hydraulic fracturing in
specific loss. Hancock, 400 S. W 3d at 63-64. Thus, if        their business. Accusations that Range's tracking
Lipsky's remarks concerning Range are actionable per          operations contaminated the aquifer thus adversely
se, then any failure in proof as to special damages is        affect the perception of Range's fitness and abilities as a
irrelevant. In other words, if such losses are not an         natural gas producer. HN35 As defamation per se,
essential element of Range's defamation claim, they can       damages to its reputation are presumed, although the
have no bearing on Lipsky's dismissal motion under the        presumption alone will support only an award of nominal
TCPA. See Tex. Civ. Prac. & Rem. Code § 27. 005/c).           damages. Salinas, 365 S. W.3d at 320. Pleading and
                                                              proof of particular damage is not required to prevail on a
HN33 The common law distiniuishes defamation claims           claim of defamation per se, and thus actual damage is
                             1
as either per se or per quod. Hancock. 400 S. W.3d at         not an essential element of the claim to which the
63. Defamation per se refers to statements that are so        TCPA's burden of clear and specific evidence might
obviously harmful that general damages, such as               apply. Although Range's affidavit on damages may have
mental anguish and loss of reputation. are presumed.           been insufficient to substantiate its claim to special
Id. at 63-64. Defamation per quod is defamation that is       damages, it was not needed to defeat Lipsky's dismissal
not actionable per se. Id. at 64. Defamation per se is         motion because Range's defamation claim was
                                                               actionable per se. The trial court accordingly did not
                                                               abuse its discretion in denying Lipsky's motion to
13
  The common law distinction between defamation per se and     dismiss.
per quod has been criticized as anachronistic and has been
abandoned in some jurisdictions, but Texas has not            IV. Range's Petition
abandoned this distinction. See Waste Mgmt. of Tex., 434
S.W.3d at 146 & nn.8-9.
                                                                                                      Page 17 of 17
                                                     In re Lipsky

The court of appeals concluded that the TCPA required        media reports about "water being lit on fire." Id. The
the     dismissal   of    rss11 Range's business-            court of appeals considered the evidence of Rich's
disparagement and defamation claims against Shyla            alleged predisposition but concluded it was not clear
Lipsky and Alisa Rich because no (**35] evidence             and specific evidence that "Rich had conspired with the
showed that either party published any false statements      Lipskys to blame Range on this occasion." Id. The court
about Range concerning contamination of the aquifer in       further considered the email documenting Rich's
general or the Lipsky well in particular. 411 S. W 3d at     "strategy," but found it to be no evidence of a conspiracy
547-49. The court also concluded that the TCPA               to defame or disparage Range. Instead, the court
required the dismissal of Range's civil conspiracy claim     observed that the email focused 110n the contamination
because no evidence established that the Lipskys and         of the Lipksys' well and on executing a plan to trigger an
Rich agreed to defame Range, an essential element of         investigation into the contamination rather than on
Range's civil-conspiracy claim as pied. Id. at 551. In its   blaming Range or pursuing an action against Range for
petition, Range seeks reinstatement of its defamation        the contamination." Id.
and business-disparagement claims against Shyla
Lipsky, as well as reinstatement of its civil-conspiracy     We agree that no clear and specific evidence
claim against all defendants.                                establishes a prima facie case that Shyla Lipsky or Alisa
                                                             Rich published any defamatory remarks concerning
Range complains that the court of appeals failed to give     Range or conspired with Steven Lipsky "to publicly
it the benefit of rational inferences drawn from the         blame Range for the contamination." r*37] Id. The court
voluminous evidence it presented. It argues that Rich        of appeals accordingly did not abuse its discretion in
had a history of publicly blaming drilling, in general-      holding that the TCPA required the dismissal of Range's
and Range in particular-for contaminating the                claims against Steven Lipsky's wife and environmental
environment and that she devised a "strategy" to get the
                                                             consultant and Range's conspiracy claim against all
EPA to investigate the Lipsky contamination claim,
                                                             parties.
which she documented in an email to the Lipskys.
Range further complains that Rich played a role in the
                                                             ***
distribution of Lipsky's "misleading" garden hose video
in furtherance of the conspiracy to defame and               The respective petitions filed in this Court by Steven
disparage Range. r*36]
                                                             Lipsky and by Range Production Co. and Range
The court observed, however, that Rich, although             Resources Corp. are denied.
mentioning Lipsky's video to the EPA, had not used it to
                                                             John P. Devine
mislead the agency but rather explained that the hose
had been attached to the well vent. 411 S.W3d at 551.        Justice
The court found no evidence that Rich participated in
distributing the video to the media or contributed to        Opinion Delivered: April 24, 2015


  End of Document
TABN0.17
~    Positive
As of: November 7, 2016 12:50 PM EST


                                        City of Dallas v. Sanchez
                                               Supreme Court of Texas
                                           July 1, 2016, Opinion Delivered
                                                     NO. 15-0094

Reporter
494 S.W.3d 722; 2016 Tex. LEXIS 615; 59 Tex. Sup. J. 1540

CITY OF DALLAS, PETITIONER, v. DIANE SANCHEZ,               Outcome
INDIVIDUALLY AND AS REPRESENTATIVE OF THE                   Court of appeals' judgment            reversed;    judgment
ESTATE OF MATTHEW SANCHEZ, DECEASED, AND                    rendered dismissing the case.
ARNOLD SANCHEZ, RESPONDENTS
                                                            LexisNexis® Headnotes
Prior History:   r·11 ON
                   PETITION FOR REVIEW
FROM THE COURT OF APPEALS FOR THE FIFTH
DISTRICT OF TEXAS.                                            Governments > Local Governments > Claims By & Against
                                                              Torts> ... > Liability> State Tort Claims Acts> Construction
City of Dallas v. Sanchez, 449 S. W.3d 645, 2014 Tex.         & Interpretation
App. LEXIS 11755 /Tex. App. Dallas, 2014)
                                                            HN1 Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2)
Core Terms                                                  provides a limited waiver of governmental immunity
                                                            arising from the condition or use of tangible personal
malfunction, proximate cause, dispatcher, responders,       property.
emergency, pleadings, phone, governmental immunity,
causing injury, disconnected, telephone, immunity,            Civil Procedure > ... > Defenses, Demurrers &
overdose, waived                                              Objections > Motions to Dismiss > Failure to State Claim

Case Summary                                                HN2 Tex. R. Civ. P. 91a authorizes dismissal of a cause
                                                            of action that has no basis in law or fact.

Overview                                                      Civil Procedure > ... > Defenses, Demurrers &
                                                              Objections > Motions to Dismiss > Failure to State Claim
HOLDINGS: [1]-An alleged defect in a city's 9-1-1
telephone system was not the proximate cause of a           HN3 Dismissal is appropriate under Tex. R. Civ. P. 91 a
drug overdose victim's death because the defect did not     if the allegations, taken as true, together with inferences
actually cause the victim's death, nor was his death        reasonably drawn from them, do not entitle the claimant
hastened or exacerbated by a telephone malfunction;         to the relief sought, or no reasonable person could
the malfunction was merely one of a series of factors       believe the facts pleaded. Tex. R. Civ. P. 91a.1.
that contributed to the victim not receiving timely         Whether the dismissal standard is satisfied depends
medical assistance; [2)-The victim's death was caused       solely on the pleading of the cause of action. Tex. R.
by drugs, the passage of time, and misinterpretation of     Civ. P. 91 a.6.
information by dispatchers and emergency responders,
who had received two 9-1-1 calls ten minutes apart,           Civil Procedure > Appeals > Standards of Review > De
both seeking assistance for a drug-overdose victim in         Novo Review
the same apartment complex; [3)-Because public                Civil Procedure > ... > Defenses, Demurrers &
property did not cause the victim's death, city immunity      Objections > Motions to Dismiss > Failure to State Claim
was not waived under Tex. Civ. Prac. & Rem. Code
Ann. § 101.021(2). and dismissal under Tex. R. Civ. P.      HN4 An appellate court reviews the merits of a Tex. R.
91a was proper.                                             Civ. P. 91 a motion de novo because the availability of a
                                                            remedy under the facts alleged is a question of law, and
the rule's factual-plausibility standard is akin to a legal-       of Harm
sufficiency review.                                                Torts> ... > Elements> Causation> Causation in Fact

  Civil Procedure > ... > Defenses, Demurrers &
                                                                 HNB Proximate cause requires both cause in fact and
  Objections > Motions to Dismiss > Failure to State Claim
                                                                 foreseeability. For a condition of public property to be a
  Civil Procedure > Appeals > Standards of Review > De           cause in fact so that governmental immunity is waived
  Novo Review                                                    under Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2).
                                                                 the condition must serve as a substantial factor in
HN5 The dismissal grounds under Tex. R. Civ. P. 91a              causing the injury and without which the injury would not
have been analogized to a plea to the jurisdiction, which        have occurred. When a condition or use of property
requires a court to determine whether the pleadings              merely furnishes a circumstance that makes the injury
allege facts demonstrating jurisdiction. Whether a               possible, the condition or use is not a substantial factor
pleader has alleged facts affirmatively demonstrating            in causing the injury. To be a substantial factor, the
the existence of subject-matter jurisdiction is a question       condition or use of the property must actually have
of law reviewed de novo. In a suit against a government          caused the injury. Thus, the use of property that simply
entity claiming immunity, to determine whether dismissal         hinders or delays treatment does not actually cause the
under Rule 91a is required, an appellate court considers         injury and does not constitute a proximate cause of an
whether the pleadings, liberally construed, allege               injury.
sufficient facts to invoke a waiver of governmental
immunity under the Tort Claims Act.                              Counsel: For City of Dallas, Petitioner: Barbara E.
                                                                 Rosenberg, James B. Pinson, Patricia Medrano De La
  Civil Procedure > Appeals > Appellate Jurisdiction > State     Garza, Assistant City Attorney, Dallas TX; Warren M.S.
  Court Review                                                   Ernst, Dallas City Attorney, Dallas TX.

HN6 The Supreme Court of Texas has jurisdiction over             For Arnold Sanchez, Diane Sanchez, Respondents:
a petition for review if the court of appeals' decision is       Charles {Chad) E. Baruch, Johnston Tobey Baruch,
inconsistent with prior Supreme Court decisions. Tex.            P.C., Dallas TX; Michael Brett Anthony, Anthony &
Gov't Code Ann. §§ 22.001(a)(2). lfil., 22.225(b). {Ql, lfil.,   Peterson, L.L.P, Corpus Christi TX.
51.014{a}{8}.

  Torts> ... > Elements> Causation> Proximate Cause              Opinion
  Torts > Public Entity Liability > Immunities > Qualified
  Immunity                                                       r124J PER CURIAM
  Governments > Local Governments > Claims By & Against
                                                                 Hours before Matthew Sanchez died from a drug
  Torts> ... > Liability> State Tort Claims Acts> Construction   overdose, a 9-1-1 operator dispatched an ambulance to
  & Interpretation                                               his apartment complex. Once on scene, however,
                                                                 emergency personnel provided assistance to a different
HN7 The Texas Tort Claims Act waives governmental                drug-overdose victim at the same complex and then left
immunity from suit for personal injury and death so              the premises without aiding Sanchez, erroneously
caused by a condition or use of tangible personal or real        concluding that two closely timed 9-1-1 calls concerning
property if the governmental unit would, were it a private       overdose victims at the same locale were redundant. In
person, be liable to the claimant according to Texas law.        a wrongful-death suit against the City of Dallas,
Tex. Civ. Prac. & Rem. Code Ann. § 101.02112). For               Sanchez's parents allege the 9-1-1 telephone system
immunity to be waived under § 101.021(2), personal               malfunctioned and disconnected Sanchez's call before
injury or death must be proximately caused by a                  the responders could establish the overdose reports
condition or use of tangible personal or real property.          were not duplicative.

  Governments > Local Governments > Claims By & Against          The issue in this Rule 91a dismissal proceeding is
  Torts> Public Entity Liability> Immunities> Qualified          whether the Texas Tort Claims Act waives the
  Immunity                                                       City's [**2] immunity from suit based on allegations in
                                                                 the wrongful-death suit that a condition of the City's
  Torts> ... > Liability> State Tort Claims Acts> Construction
                                                                 telephone system proximately caused Sanchez's death
  & Interpretation
                                                                 by preventing him from receiving potentially life-saving
  Torts> ... > Causation> Proximate Cause> Foreseeability        medical care. See HN1 Tex. Civ. Prac. & Rem. Code §
101.02112) (providing a limited waiver of governmental         Miranda, 133 S. W. 3d at 226; see a/so Ryder Integrated,
immunity arising from the "condition or use" of tangible       453 S. W.3d at 926.
personal property); HN2 Tex. R. Civ. P. 91a (authorizing
dismissal of a cause of action that has no basis in law or     In the early hours of November 16, 2012, City of Dallas
fact). We hold governmental immunity is not waived and         9-1-1 dispatchers received two 9-1-1 calls within
dismissal is required because the requisite causal nexus       approximately ten minutes of one another. Both calls
between the alleged condition and Sanchez's injury is          originated from the same apartment complex and both
lacking. See Dallas County v. Posey. 290 S. W.3d 869.          requested assistance for a drug-overdose victim;
872 /Tex. 2009) (the alleged condition must actually           however, the calls were placed from different phone
have caused the injury to invoke the Tort Claims Act's         numbers and concerned different residents.
immunity waiver; mere involvement of property is not
                                                               This wrongful-death and survival action arises from the
sufficient). We therefore reverse the court of appeals'
                                                               second 9-1-1 call, which was placed at 2:55 a.m. on
judgment and render judgment dismissing the case.
                                                               Matthew Sanchez's behalf. The 9-1-1 dispatcher
                                                               acquired information regarding the nature of the
HN3 Dismissal is appropriate under Rule 91a "if the
                                                               emergency and Sanchez's address, including the
allegations, taken as true, together with inferences
                                                               apartment number, and informed the caller that
reasonably drawn from them, do not entitle the claimant
                                                               emergency responders were en route. The call was
to the relief sought . . . [or] no reasonable person could
                                                               subsequently disconnected and not reestablished. After
believe the facts pleaded." Tex. R. Civ. P. 91a.1.
                                                               emergency responders arrived at the apartment
Whether the dismissal standard is satisfied depends
                                                               complex to assist the subject of the first 9-1-1 call, they
"solely on the pleading of the cause of action." Tex. R.
                                                               erroneously concluded that the two 9-1-1 calls were
Civ. P. 91 a. 6. HN4 We review r*3] the merits of a Rule
                                                               redundant and that a single individual was the subject of
91 a motion de nova because the availability of a
                                                               both calls. Consequently, the emergency responders
~edy under the facts alleged is a question of law and
                                                               never went to Sanchez's apartment to provide aid.
the rule's factual-plausibility standard is akin to a legal-
                                                               Sanchez died at approximately 8:40 a.m.
sufficiency review. See Wooley v. Schaffer, 447 S.W.3d
71. 75-76 /Tex. App. Houston (14th Dist.1 2014. pet.
denied}; cf. Marsh USA Inc. v. Cook. 354 S. W.3d 764.
                                                               Sanchez's parents sued the City of Dallas          r·51   for
                                                               negligence alleging: (1) the City's 9-1-1 dispatcher
768 /Tex. 2011) (application of the law to undisputed          misused the phone system by hanging up before
facts is reviewed de nova); City of Keller v. Wilson. 168      emergency responders arrived to assist Sanchez, or in
S.W.3d 802. 827 /Tex. 2005) ("[L]egal-sufficiency review       the alternative, the 9-1-1 phone system malfunctioned,
in the proper light must credit favorable evidence if          causing the call to disconnect prematurely; (2) the 9-1-1
reasonable jurors could, and disregard contrary                dispatcher failed to follow proper procedure and violated
evidence unless reasonable jurors could not.").                various federal, state, and local laws and regulations by
                                                               either disconnecting the call or failing to redial after the
HN5 The dismissal grounds under Rule 91a have been
                                                               call disconnected; and (3) if the emergency responders
analogized to a plea to the r12s1 jurisdiction, which
                                                               had located Sanchez before leaving the premises, they
requires a court to determine whether the pleadings
                                                               "would have most likely saved [his] life."
allege facts demonstrating jurisdiction. See Wooley. 447
s. W.3d at 75. In this case, the analogy is particularly apt   In a Rule 91a motion to dismiss asserting
because the City's Rule 91 a motion challenges the trial       governmental immunity from suit, the City argued the
court's subject-matter jurisdiction on the pleaded facts.      allegations in the lawsuit did not invoke a waiver of
Whether a pleader has alleged facts affirmatively              immunity under the Tort Claims Act because (1) the
demonstrating the existence of subject-matter                  allegations complained about communication of
jurisdiction is a question of law reviewed de nova. See        information and the failure to dispatch an ambulance,
 Tex. Dep't of Parks & Wildlife v. Miranda. 133 S. W 3d        not a condition or misuse of tangible property, and (2)
217, 226 /Tex. 2004); see a/so Ryder Integrated                Sanchez's death was caused by a drug overdose, not
Logistics, Inc. v. Fayette County, 453 S.W.3d 922. 927         the 9-1-1 telephone system. See Tex. Civ. Prac. & Rem.
 /Tex. 2015) (per curiam) ('We review jurisdiction and         Code§ 101.021(2). Alternatively, to the extent immunity
pleading sufficiency de nova."). To determine whether          might otherwise be waived under the Tort Claims Act,
dismissal under Rule 91a is required in this case, we          the City asserted the pleadings failed to overcome a
thus consider whether the pleadings, liberally construed,      statutory exception making r·&J the Act inapplicable to
allege sufficient facts to invoke a waiver of                  9-1-1 emergency services, except for actions that
governmental r*4] immunity under the Tort Claims Act.          "violate[] a statute or ordinance applicable to the action."
Id.§ 101.062fb}.                                             more than mere involvement of property; rather, the
                                                             condition must actually have caused the injury."). Thus,
The trial court granted the City's motion to dismiss as      the use of property that simply hinders or delays
to all claims except the allegation r12s1 that the 9-1-1     treatment does not "actually cause[] the injury" and does
phone system failed or malfunctioned. On interlocutory       not constitute a proximate cause of an injury. See Miller.
appeal, the court of appeals affirmed, holding Sanchez's     51 S.W.3d at 588.
parents (1) sufficiently alleged a defect in the phone
system proximately caused his death and (2)                  In Miller, prison staff misdiagnosed a prisoner's
adequately pleaded a violation of a statute or ordinance     meningitis and provided treatment-including pain-
                                                        1    relievers,    anti-nausea     medicine,    and    fluids-
as an exception to section 101. 062's waiver exclusion.
449 S.W.3d 645, 653-54.                                      that r*B] masked the symptoms and made it more
                                                             difficult to correctly diagnose the meningitis. Id. We
HN6 We have jurisdiction over the City's petition for        concluded the treatment was not a proximate cause of
review because the court of appeals' decision is             the prisoner's death because it "did not actually cause
inconsistent with our decisions in Dallas County v.          his death." Id. Instead, the prisoner's death was caused
Posey, 290 S.W.3d 869 (Tex. 2009}. and Texas                 by meningitis, "the passage of time[,] and an alleged
Department of Criminal Justice v. Miller, 51 S. W.3d 583     error in medical judgment." Id.
fTex. 2001 }. See Tex. Gov'T Code §§ 22. 001 fa}(2}, {!U,
22.225fb}, {Ql, ffil, 51.014fa}(8J; see also Austin State    Even construing the pleadings liberally, see Miranda,
Hosp. v. Graham, 347 S.W.3d 298, 300 (Tex. 2011}.            133 S. W. 3d at 226, the alleged telephone-system
                                                             malfunction was not a proximate cause of Sanchez's
HN7 The Texas Tort Claims Act waives governmental            death. Between the alleged malfunction and Sanchez's
immunity from suit for 11 personal injury and death so       death, emergency responders erroneously concluded
caused by a condition or use of tangible personal or real    separate 9-1-1 calls r1271 were redundant and left the
property if the governmental unit would, were it a private   apartment complex without checking the specific
person, be liable to the claimant according to Texas         apartment unit the dispatcher had provided to them.
law." Tex. Civ. Prac. & Rem. Code § 101.021(2). For          Moreover, approximately six hours passed between the
immunity to be waived under section 101.021(2},              phone malfunction and Sanchez's death, further
"personal       injury   or       death     must        be   attenuating     the   causal     connection.    Although
proximately r•11 caused by a condition or use of             disconnection of the telephone call may have
tangible personal or real property." Dallas Cty. Mental      contributed to circumstances that delayed potentially
Health & Mental Retardation v. Bossley, 968 S. W. 2d         life-saving assistance, the malfunction was too
339, 342-43 fTex. 1998). To establish a waiver of the        attenuated from the cause of Sanchez's death-a drug
City's immunity under section 101. 021 (2}. we must          overdose-to be a proximate cause. See Bossley, 968
therefore determine whether the phone's condition was        S. W.2d at 343 (use of property is not a proximate cause
a proximate cause of Sanchez's death.                        when it is too attenuated from the injury). The
                                                             alleged r*9] defect did not actually cause Sanchez's
HNB Proximate cause requires both "cause in fact and         death nor was his death "hastened or exacerbated" by a
foreseeability." Ryder. 453 S. W.3d at 929. For a            telephone malfunction. See Posey, 290 S.W.3d at 872;
condition of property to be a cause in fact, the condition   Miller, 51 S. W.3d at 588. The malfunction was merely
must "serve[] as 'a substantial factor in causing the        one of a series of factors that contributed to Sanchez
injury and without which the injury would not have           not receiving timely medical assistance. See Miller, 51
occurred."' Id. (quoting Del Lago Partners. Inc. v. Smith,    S. W. 3d at 588. Sanchez's death was caused by drugs,
307 S.W.3d 762. 774 fTex. 2010V. When a condition or         the passage of time, and misinterpretation of
use of property merely furnishes a circumstance "that        information. See id. (concluding the death was caused
makes the injury possible," the condition or use is not a     by meningitis, time, and an alleged error in judgment,
substantial factor in causing the injury. Bossley, 968        not by symptom-masking treatment). Accordingly, the
S. W.2d at 343. To be a substantial factor, the condition     pleadings do not establish a defect in the 9-1-1
or use of the property "must actually have caused the        telephone system was a proximate cause of Sanchez's
injury." Posey, 290 S. W.3d at 872 ("This nexus requires     death as required to establish a waiver of governmental
                                                              immunity under the Tort Claims Act.

1
 The court of appeals also affirmed dismissal of the         Without hearing oral argument, we reverse the court of
Sanchezes' negligent use/misuse claim, but they have not     appeals' judgment and render judgment dismissing the
appealed that ruling.
case. See Tex. R. App. P. 59. 1.
OPINION DELIVERED: July 1, 2016
