                                                                                  ACCEPTED
                                                                             04-14-00803-CV
                                                                  FOURTH COURT OF APPEALS
                                                                       SAN ANTONIO, TEXAS
                                                                         3/3/2015 5:53:20 PM
                                                                               KEITH HOTTLE
                                                                                      CLERK




                 ORAL ARGUMENT REQUESTED                      FILED IN
                                                       4th COURT OF APPEALS
                                                        SAN ANTONIO, TEXAS
                        NO. 04-14-00803-CV             03/3/2015 5:53:20 PM
                                                         KEITH E. HOTTLE
                        IN THE                                 Clerk
        FOURTH COURT OF APPEALS AT SAN ANTONIO
     ____________________________________________________

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

                                  v.

                       GABRIELA LOPEZ
                            Appellee.
      ___________________________________________________

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


                 AMENDED BRIEF OF APPELLEE


                                       Darrell L. Keith
                                       SBOT No. 11186000
                                       dkeith@keithlaw.com
                                       Laura A. Russell
                                       SBOT No. 24046777
                                       lrussell@keithlaw.com
                                       KEITH LAW FIRM, P.C.
                                       301 Commerce Street, Suite 2850
                                       Fort Worth, Texas 76102
                                       T. 817. 338.1400
                                       F. 817. 870.2448
                                       ATTORNEYS FOR APPELLEE
                                NO. 04-14-00803-CV

                              IN THE
              FOURTH COURT OF APPEALS AT SAN ANTONIO
         ____________________________________________________
        JUAN FRANCISCO MONTALVO, M.D., F.A.C.O.G, ET AL.
                         Appellants,

                                           v.

                           GABRIELA LOPEZ
                                Appellee.
          ___________________________________________________

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


                   IDENTITY OF PARTIES AND COUNSEL


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

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

judgment and their counsel:

Appellee:                                       Gabriela Lopez

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




                                                                                       i
Appellate Counsel for Appellee:       Darrell L. Keith
                                      Laura A. Russell
                                      Keith Law Firm, P.C.
                                      301 Commerce Street, Suite 2850
                                      Fort Worth, Texas 75102

Trial Counsel for Appellee:           Darrell L. Keith
                                      Keith Law Firm, P.C.
                                      301 Commerce Street, Suite 2850
                                      Fort Worth, Texas 75102

Appellate Counsel for Appellants      Diana L. Faust
Juan Francisco Montalvo, M.D.,        R. Brent Cooper
Miguel E. Najera, J.D., Executor      Kyle M. Burke
of Estate Of Miguel E. Najera,        Cooper & Scully, P.C.
M.D., Deceased, Winder N. Vasquez,    900 Jackson St., Suite 100
M.D., Laredo Regional Medical         Dallas, Texas 75202
Center, L.P. d/b/a Doctors Hospital
of Laredo:

Trial Counsel for Juan                Mr. James Kevin Oncken
Francisco Montalvo, M.D.:             Roger A. Berger
                                      Uzick & Oncken, P.C.
                                      238 Westcott Street
                                      Houston, Texas 77007

Trial Counsel for Miguel E.           Mr. W. Richard Wagner
Najera, J.D., Executor of Estate      Mr. Peter Cario
Of Miguel E. Najera, M.D.,            Wagner Cario, L.L.P
Deceased:                             7718 Broadway, Suite 100
                                      San Antonio, Texas 78209

Trial Counsel for Winder N.           Mr. Bruce E. Anderson
Vasquez, M.D.:                        Mr. James W. Veale, Jr.
                                      Ms. Lorien L. Whyte
                                      Brin & Brin, P.C.
                                      6223 IH 10 West
                                      San Antonio, Texas 78201
                                                                        ii
Trial Counsel for Laredo            Mr. Steven M. Gonzalez
Regional Medical Center, L.P.       Mr. Edward J. Castillo
d/b/a Doctors Hospital of Laredo:   Gonzalez Castillo, LLP
                                    1317 E. Quebec Avenue
                                    McAllen, Texas 78503




                                                             iii
                               NO. 04-14-00803-CV


                            IN THE
            FOURTH COURT OF APPEALS AT SAN ANTONIO
         ____________________________________________________

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

                                          v.

                           GABRIELA LOPEZ
                                Appellee.
          ___________________________________________________

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


                      REQUEST FOR ORAL ARGUMENT


      Appellee Gabriela Lopez respectfully requests oral argument in this case and

believes it will help the Court in evaluating the case and resolving this appeal.

Tex. R. App. P. 39.1, 39.7.




                                                                                    iv
                                      TABLE OF CONTENTS


IDENTITY OF PARTIES & COUNSEL ................................................................ i

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

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

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

STATEMENT OF THE CASE ............................................................................... x

ISSUES PRESENTED......................................................................................... xii

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

SUMMARY OF THE ARGUMENT ...................................................................... 3

ARGUMENT AND AUTHORITIES ..................................................................... 4
   I. THE COURT SHOULD AFFIRM THE TRIAL COURT’S ORDER................................. 4

        A.      STANDARD OF REVIEW......................................................................... 4

        B.      GABRIELA LOPEZ’S CAUSE WAS TIMELY FILED . .................................. 4

                      1. THIRTY YEARS OF PRECEDENT SUPPORTS THE TRIAL COURT
                         HOLDING § 74.251(a) FACIALLY UNCONSTITUTIONAL. ............. 4

                      2. THE STATUTE OF LIMITATIONS APPLICABLE TO GABRIELA
                         LOPEZ’S CAUSE IS TEXAS CIVIL PRACTICE AND REMEDIES CODE
                         § 16.003, AS TOLLED BY § 16.001. . ........................................ 11

                      3. GABRIELA LOPEZ’S NOTICE OF HEALTH CARE LIABILITY CLAIM
                         TOLLED THE APPLICABLE STATUTE OF LIMITATIONS FOR 75
                         DAYS. . .................................................................................... 12


                                                                                                                      v
CONCLUSION .................................................................................................... 19

PRAYER .............................................................................................................. 21

CERTIFICATE OF COMPLIANCE .................................................................... 22

CERTIFICATE OF SERVICE.............................................................................. 23




                                                                                                                     vi
                                  TABLE OF AUTHORITIES


                                                CASES

Adams v. Gottwald,
179 S.W.3d 101 (Tex. App.—San Antonio 2005, pet. denied) ...................... 7, 8, 10

De Romo v. St. Mary of Plains Hosp. Fnd.,
843 S.W.2d 72 (Tex. App.—Amarillo 1992, writ denied) ..................................... 16

Garcia v. Gomez,
319 S.W.3d 638, 643 (Tex. 2010) ................................................................... 13, 15

In re Collins,
286 S.W.3d 911, 916-17 (Tex. 2009) ............................................................... 13,15

Jose Carreras, M.D., P.A. v. Marroquin,
339 S.W.3d 68 (Tex. 2011) ...................................................................... 13, 15, 17

Karley v. Bell,
24 S.W.3d 516 (Tex. App.—Fort Worth 2000, pet. denied) .................................. 16

Mock v. Presbyterian Hosp.,
379 S.W.3d 391 (Tex. App.—Dallas 2012, pet. denied) ................................. 15, 17

Rabatin v. Kidd,
281 S.W.3d 558 (Tex. App.—El Paso 2008, no pet.) ............................................ 15

Safeco Lloyds Ins. Co. v. Allstate Ins. Co.,
308 S.W.3d 49 (Tex. App.—San Antonio 2009, no pet.) ........................................ 4

Sax v. Votteler,
648 S.W.2d 661 (Tex. 1983) ........................................................................6-11, 14

Schepps v. Presbyterian Hosp. of Dallas,
652 S.W.2d 934, 938 (Tex. 1983) ......................................................................... 13

                                                                                                        vii
Tejada v. Gernale,
363 S.W.3d 699 (Tex. App.—Houston 2011, no pet.). .......................................... 16

Tenet Hosps. Ltd. v. Rivera,
445 S.W.3d 698 (Tex. 2014). .............................................................................. 8-9

Texas Indus. Traffic League v. Railroad Comm’n of Tex.,
628 S.W.2d 187 (Tex. App. —Austin 1982),
rev’d on other grounds, 633 S.W.2d 821 (Tex. 1982) .......................................... 18

VanDevender v. Woods,
222 S.W.3d 430 (Tex. 2006) ................................................................................. 18

Weiner v. Wasson,
900 S.W.2d 316 (Tex. 1995) .................................................................. 6-12, 14, 16

                                                STATUTES

Tex. Const. art. I § 13. ................................................................... 1-2, 6-8,10,12,19

Tex. Civ. Prac. & Rem. Code § 16.001 ................................... 2-4, 11-12, 16, 18-20

Tex. Civ. Prac. & Rem. Code § 16.003 ................................... 2-4, 11-12, 16, 18-20

Tex. Civ. Prac. & Rem. Code § 74.051 .............................................. 1-4, 12, 14-19

Tex. Civ. Prac. & Rem. Code § 74.052 ........................................ 2-3, 12, 15, 17, 20

Tex. Civ. Prac. & Rem. Code § 74.251(a) ............................1-5, 7-10, 12, 14, 18-20

Tex. Rev. Civil Stat. art. 4590i § 10.01(a) ................................................ 5-8, 11, 16

Tex. Rev. Civil Stat. art. 4590i § 4.01 ............................................................. 13, 16

Tex. Ins. Code art. 5.82 § 4 ................................................................................. 6, 9




                                                                                                              viii
                              NO. 04-14-00803-CV


                            IN THE
            FOURTH COURT OF APPEALS AT SAN ANTONIO
         ____________________________________________________

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

                                         v.

                          GABRIELA LOPEZ
                               Appellee.
         ___________________________________________________

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


                      AMENDED BRIEF OF APPELLEE


TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF
APPEALS:

      Appellee Gabriela Lopez submits this Amended Brief of Appellee in

accordance with Texas Rules of Appellate Procedure 9.4 and 38 and the Local

Rules of this Court. In support of affirming the trial court’s denial of Appellants’

motions for summary judgment and affirming the trial court’s substantive rulings,

Appellee Gabriela Lopez respectfully alleges as follows:




                                                                                  ix
                          STATEMENT OF THE CASE

      The underlying proceeding is a medical malpractice action brought by

Appellee Gabriela Lopez against Appellants Juan Francisco Montalvo, M.D.,

F.A.C.O.G., Winder N. Vasquez, M.D., Miguel E. Najera, J.D., Executor of the

Estate of Miguel E. Najera, M.D., Deceased, and Laredo Regional Medical Center,

L.P. d/b/a Doctors Hospital of Laredo based on claims of the Appellants’ medical

negligence and gross negligence which proximately caused Appellee Lopez’s

injuries, harm, and damages. (CR 27, 33-46, 267-271, 453-460).

      Appellee Gabriela Lopez filed this cause against Appellants on May 17,

2013, in the 341st Judicial District Court, Webb County, Texas, the Honorable

Beckie Palomo presiding (the “Trial Court”). (CR 27).

      On March 19, 2014, the Trial Court entered four interlocutory orders

denying the motions for summary judgment filed by each of the Defendants in

cause no. 2013-CVT000841-D3, styled Gabriela Lopez v. Juan Francisco

Montalvo, M.D., F.A.C.O.G., Winder N. Vasquez, M.D., Miguel E. Najera, J.D.,

Executor of the Estate of Miguel E. Najera, M.D., Deceased, and Laredo Regional

Medical Center, L.P. d/b/a Doctors Hospital of Laredo. (CR 587, 599, 611, 623).

On April 2, 2014, the Defendants filed a motion to appeal interlocutory order in the

Trial Court. (CR 635-640). On April 22, 2014, Plaintiff Gabriela Lopez filed her

response in opposition.    On November 3, 2014, the Trial Court entered its

                                                                                  x
Amended Order Denying Defendants’ Motions for Summary Judgment and

Granting Defendants’ Motion for Permission to Appeal Interlocutory Order. (CR

656-662).

      On November 14, 2014, Appellants filed their Appellants’ Petition for

Permission to Appeal Amended Order Denying Defendants’ Motions for Summary

Judgment and Granting Defendants’ Motion for Permission to Appeal

Interlocutory Order with this Court (hereinafter “Appellants’ Petition”). Appellee

Gabriela Lopez opposed Appellants’ Petition for Permission to Appeal.          On

January 7, 2015, the Court granted Appellant’s Petition.




                                                                                xi
                        ISSUES PRESENTED

1. Whether the trial court erred when it concluded that TMLA § 74.251(a)
   is facially unconstitutional and violates Texas Constitution article I, §
   13’s Open Courts provision as to minors, and determined that Texas Civil
   Practice and Remedies Code §§ 16.001 and 16.003 govern limitations as
   to Plaintiff’s health care liability claim when it is undisputed that
   Gabriela Lopez was a minor at the time of the health care made the basis
   of her claims in this cause, and thirty years of precedent in the Texas
   Supreme Court and the San Antonio Court of Appeals holds the language
   in section 74.251(a) and its predecessor statutes unconstitutional as
   applied to minors.

2. Whether the trial court erred when it concluded that TMLA section
   74.051(c) provides a 75-day tolling period for presuit notice for Gabriela
   Lopez where it is undisputed that (i) Gabriela Lopez’s claim is a health
   care liability claim, which, by statute, requires presuit notice; (ii)
   Gabriela Lopez complied with TMLA’s section 74.051’s 60-day presuit
   notice requirement; (iii) the statute states: “Notice given as provided in
   this chapter shall toll the applicable statute of limitations to and including
   a period of 75 days following the giving of the notice,” and does not limit
   the “applicable statute of limitations” to TMLA 74.251(a); and (iv) the
   purpose of the 60-day notice and concomitant 75-day tolling provision is
   to encourage investigation of claims, negotiation, and settlement.




                                                                              xii
                           STATEMENT OF FACTS

      This is a medical malpractice action brought by Appellee, Gabriela Lopez,

against Appellants based on claims of the Appellants’ medical negligence and

gross negligence which occurred when Gabriela Lopez was 12 years old. (CR 27-

32, 429-440). Gabriela Lopez turned 18 years old on March 11, 2011.

      On March 8, 2013, Gabriela Lopez served written notice of her health care

liability claim under Texas Civil Practice and Remedies Code § 74.051 on

Appellants. (CR 184-90, 287-94). Less than 75 days later, on May 17, 2013,

Gabriela Lopez filed her lawsuit against Appellants. (CR 26-27).

      In August 2013, each Appellant filed a traditional motion for summary

judgment which alleged that Gabriela Lopez’s health care liability claims were

barred by the statute of limitations in section 74.251(a) of the Civil Practice and

Remedies Code. (CR 77-82, 105-10, 119-24, 174-83).

      Gabriela Lopez timely filed responses to each of the motions for summary

judgment, asserting that Texas Medical Liability Act (TMLA) section 74.251(a) is

unconstitutional as to minors as violative of the Open Courts provision of the

Texas Constitution Article I, § 13, and that she was a minor at the time Appellants’

medical negligence and gross negligence occurred. (CR 280-83, 339-41, 488-91).

For this reason, Gabriela Lopez responded that her claims were governed by the

statute of limitations and tolling provision in Texas Civil Practice of Remedies

                                                                                  1
Code sections 16.001 and 16.003.       Id. Additionally, because Gabriela Lopez

provided the mandatory 60-day notice of her health care liability claim

accompanied by the authorization forms for release of protected health information

in accordance with TMLA sections 74.051 and 74.052, she asserted the 75-day

tolling provision provided by that section. (CR 283-84, 342-43, 361-62, 491-92).

Appellants filed their replies (CR 421-22, 558-59, 580-81), and Gabriela Lopez

filed supplemental responses. (CR 464-788, 563-78).

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

summary judgment, and on March 19, 2014, signed orders denying Appellants’

motions. (CR 587, 599, 611, 623).

      On April 2, 2014, Appellants filed a motion for permission to appeal

interlocutory order [sic] with the Trial Court. (CR 635-43). Gabriela Lopez timely

filed a response in opposition. (Id.). Following a hearing held May 5, 2014, on

November 3, 2014, the trial court entered its Amended Order Denying Defendants’

Motions for Summary Judgment and Granting Defendants’ Motion for Permission

to Appeal Interlocutory Order. (CR 656-72).

      The trial court made the following substantive rulings:

            (1)   Because TMLA § 74.251(a) is facially unconstitutional and
                  violates Texas Constitution article I, § 13’s Open Courts
                  provision as to minors, Texas Civil Practice and Remedies
                  Code §§ 16.001 and 16.003 govern limitations as to Plaintiff’s
                  health care liability claim; and

                                                                                2
             (2)    TMLA § 74.051(c) applies to further toll limitations under
                    Texas Civil Practice and Remedies Code §§ 16.001 and 16.003
                    for Plaintiff’s health care liability claim, for a period of 75 days
                    following her giving of notice and authorization for release of
                    protected health information to Defendants on March 8, 2013,
                    which was prior to the expiration of the applicable two-year
                    statute of limitations. As applied, TMLA §§ 74.051(c) and
                    74.052 tolled Plaintiff’s health care liability claim until May 22,
                    2013. Because Plaintiff filed her health care liability claim
                    lawsuit on May 17, 2013, the applicable statute of limitations
                    does not bar Plaintiff’s health care liability claim against
                    Defendants.
(CR 657-58).

                       SUMMARY OF THE ARGUMENT

       It is settled precedent of the Texas Supreme Court and this Court that

section 74.251(a) of the Texas Medical Liability Act (TMLA)1 and its predecessor

limitations provisions are unconstitutional as applied to minors like the Appellee

Gabriela Lopez. Consequently, the statute of limitations applicable to Gabriela

Lopez is Texas Civil Practice and Remedies Code section 16.003, as tolled by

section 16.001. Further, it is well established that timely notice of a health care

liability claim provided under TMLA section 74.051(a) tolls “the applicable statute

of limitations.” The two year statute of limitations under section 16.003 started to

run on Gabriela Lopez’s eighteenth birthday, March 11, 2011. Gabriela Lopez

served notice of her claim, accompanied by the authorization for release of


1
 Texas Medical Liability Act (TMLA), Tex. Civ. Prac. & Rem. Code § 74.251(a) (Acts 2003,
78th Leg., ch. 204, § 10.01, eff. Sept. 1, 2003).

                                                                                      3
protected health information on March 8, 2013, prior to the expiration of the two

year statute of limitations, and filed this cause on May 17, 2013, well within the

statute of limitations as tolled. Appellants’ argument that adequate and timely

notice under TMLA § 74.051(c) did not toll the statute of limitations for seventy-

five days (due to the unconstitutionality 74.251(a) as applied to minors and the

operation of Texas Civil Practice and Remedies Code section 16.003, as tolled by

section 16.001 in its place) lacks any support and is an attempt to create a trap for

the unwary who, heaven forfend, merely follow the letter of TMLA § 74.051(c).

                      ARGUMENT AND AUTHORITIES

      I.     The Court Should Affirm the Trial Court’s Order.

             A.    Standard of Review

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

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

(Tex. App.—San Antonio 2009, no pet.).

             B.    Gabriella Lopez’s Cause Was Timely Filed.

                   1. Thirty Years of Precedent Support the Trial Court
                      Holding § 74.251(a) Facially Unconstitutional.

      Thirty years of precedent from the Texas Supreme Court and this Court of

Appeals demonstrates that the statute of limitations provision for minors in section




                                                                                   4
74.251(a) of the Texas Medical Liability Act (TMLA)2 is facially unconstitutional,

yet Appellants argue otherwise.                Because the Appellants’ argument is

unsupportable, it should be rejected.

       The TMLA limitations provision, Section 74.251(a), provides:

       Notwithstanding any other law and subject to Subsection (b), no
       health care liability claim may be commenced unless the action is
       filed within two years from the occurrence of the breach or tort or
       from the date the medical or health care treatment that is the subject of
       the claim or the hospitalization for which the claim is made is
       completed; provided that, minors under the age of 12 years shall have
       until their 14th birthday in which to file, or have filed on their behalf,
       the claim. Except as herein provided this section applies to all persons
       regardless of minority or other legal disability.

Tex. Civ. Prac. & Rem. Code § 74.251(a) (emphases added).                            The

predecessor statute to the TMLA, the Texas Medical Liability and Insurance

Improvement Act (TMLIIA), Texas Revised Civil Statutes article 4590i,

section 10.01(a),3 included identical language to that contained in the

TMLA section 74.251(a). TMLIIA section 10.01(a), provided:

       Notwithstanding any other law, no health care liability claim may be
       commenced unless the action is filed within two years from the
       occurrence of the breach or tort or from the date the medical or health
       care treatment that is the subject of the claim or the hospitalization for
       which the claim is made is completed; provided that, minors under the

2
 Texas Medical Liability Act (TMLA), Tex. Civ. Prac. & Rem. Code § 74.251(a) (Acts 2003,
78th Leg., ch. 204, § 10.01, eff. Sept. 1, 2003).
3
  Texas Medical Liability and Insurance Improvement Act (TMLIIA), Tex. Rev. Civ. Stat. art.
4590i § 10.01(a) (Acts, 65th Leg., p. 2039, ch. 817, Part 1, eff. Aug. 29, 1977) (Repealed by Acts
2003, 78th Leg., ch. 204, § 10.09, eff. Sept. 1, 2003).

                                                                                                5
       age of 12 years shall have until their 14th birthday in which to file, or
       have filed on their behalf, the claim. Except as herein provided, this
       subchapter applies to all persons regardless of minority or other legal
       disability.

TMLIIA, Tex. Rev. Civ. Stat. art. 4590i § 10.01(a) (emphases added). The Texas

Supreme Court held Section 10.01(a) of the TMLIIA “unconstitutional as applied

to minors” because a minor cannot sue on her own behalf until she reaches

majority; therefore, section 10.01(a) violates article I section 13 of the Texas

Constitution. Weiner v. Wasson, 900 S.W.2d 316, 318-21 (Tex. 1995) (emphases

added).

       Before the Texas Supreme Court held TMLIIA section 10.01(a) to be

unconstitutional, it found section 10.01(a)’s predecessor statute, Texas Insurance

Code Art. 5.82, section 4 unconstitutional as applied to minors for the same

reason. Sax v. Votteler, 648 S.W.2d 661, 667 (Tex. 1983).4 Significantly, the

Weiner Court found this provision facially unconstitutional, and refused to limit

Sax to an “‘as applied’ or case-by-case basis” or to “somehow limit the holding of

[Sax] to its facts.” Weiner, 900 S.W.2d at 320. Instead, it has come to stand for the

larger premise that “the Legislature has no power to make a remedy contingent


4
 Article 5.82 established a two-year statute of limitations, except that children under the age of 6
were granted until their 8th birthday in which to file a claim. Tex. Ins. Code Art. 5.82, § 4. In
Weiner, the Texas Supreme Court noted that § 10.01 and its predecessor, Article 5.82, were
substantially the same. Weiner v. Wasson, 900 S.W.2d at 318.



                                                                                                  6
upon an impossible condition.” Id. at 319. The Weiner Court further stated that

“undeniably, Sax has become firmly ensconced in Texas jurisprudence.” Id. at 320.

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

2005, pet. denied), this Court of Appeals held that TMLA section 74.251 is

unconstitutional as applied to minors under the open courts provision of article I,

section 13 of the Texas Constitution. The Court compared the language of TMLA

§ 74.251(a) with the language of TMLIIA § 10.01(a), and deemed them “virtually

identical.”   Id.   The Adams Court concluded that it was “bound by Sax and

Weiner.” Id. at 103.

      Given the precedent of the Texas Supreme Court and this Court, the law is

well-settled regarding the unconstitutionality of section 74.251(a) as applied to

minors. The Appellants’ argument that the Texas Supreme Court has not ruled on

section 74.251(a) fails because the language of TMLA § 74.251(a) and the

language in TMLIIA § 10.01(a) that the Weiner Court found unconstitutional is—

in the words of this Court—“virtually identical.” Id. Furthermore, as much as the

Appellants might wish otherwise, the holding in Adams is binding authority in the

Fourth Court of Appeals.

      Next, the Appellants contend that the Texas Legislature “undertook a major

overhaul of medical malpractice law in 2003,” i.e., when it enacted the TMLA to

replace the TMLIIA, but explain that the Legislature purposefully ignored Weiner

                                                                                 7
in enacting the same statute of limitations for minors in the TMLA that had

previously existed and had been ruled unconstitutional in Weiner, namely that

“minors under the age of 12 years shall have until their 14th birthday in which to

file, or have filed on their behalf, the claim.” (Appellants’ Brief at 16,18). Taken

as true, the Legislature may have chosen to ignore Weiner, but the Legislature

cannot render the language of TMLA § 74.251(a) constitutional, when it is

“virtually identical” to the language in TMLIIA § 10.01(a) that the Weiner Court

found facially unconstitutional as violative of article I section 13 of the Texas

Constitution. Id.5

       As explained in Weiner, 900 S.W.2d at 318-21, and Adams, 179 S.W.3d at

103, because Gabriela Lopez could not sue on her own behalf until she reached

majority, TMLA § 74.251(a) violates article I section 13 of the Texas Constitution.

Appellants contend (for the first time) that it is Gabriela Lopez’s burden to

demonstrate that TMLA § 74.251(a) is an unreasonable exercise of the police

power in the interest of the general welfare, citing the recent decision Tenet Hosps.

Ltd. v. Rivera, 445 S.W.3d 698 (Tex. 2014). Significantly, the Rivera Court

expressly distinguished itself from Sax and Weiner as (a) concerning TMLA


5
 Indeed, it is unclear why Appellants repeatedly refer to “wholesale revisions to Texas medical
malpractice law in 2003” as though it would alter the Court’s consideration of § 74.251(a),
where that language remains unchanged from its predecessor statute. (See, e.g., Brief of
Appellants at 18-19).

                                                                                                  8
section 74.251(b), a ten year statute of repose that is not limited to minors, and (b)

explaining that Sax and Weiner considered statutes of limitations provisions that

were expressly applied to minors, which were facially unconstitutional, whereas

the challenge to the statute of repose in Rivera was an as-applied attack. Id. at 706.

It is worth noting, moreover, that the Sax Court engaged in the police power

analysis and weighed many of the same arguments raised by the 2003 Legislature.

Sax, 648 S.W.2d at 666.6 Ultimately, the Sax Court concluded that while “both the

purpose and basis for article 5.82 are legitimate” and the “length of time that

insureds are exposed to potential liability has a bearing on the rates that insurers

must charge . . . . [w]e cannot agree, however, that the means used by the

legislature to achieve this purpose, article 5.82, section 4, are reasonable when they

are weighed against the effective abrogation of a child’s right to redress.” Sax , 648

S.W.2d at 667.


6
    The Court summarized:

         Specifically, the legislation’s proponents argued that the number and amount of
         health care claims had increased to the point that it was indirectly affecting the
         availability and quality of health care. This effect was due to the higher costs of
         medical malpractice insurance and its unavailability. The general purpose of the
         statute, therefore, was to provide an insurance rate structure that would enable
         health care providers to secure liability insurance and thereby provide
         compensation for their patients who might have legitimate malpractice claims.
         The specific purpose of the provision in question was to limit the length of time
         that the insureds would be exposed to potential liability.

Sax, 648 S.W.2d at 666.

                                                                                               9
       Finally, Appellants’ assertions that Gabriela Lopez’s cause should be treated

differently from Adams and Weiner even though Gabriela Lopez was a minor at the

time of her medical and/or health care treatment because “Adams involved a claim

filed by the plaintiff’s parents well before the child’s 20th birthday, and no other

Texas appellate court has considered whether section 74.251(a) is unconstitutional

as applied to all minors, or under the facts of this case” impermissibly attempts to

limit Appellee Gabriela Lopez’s constitutional challenge to an “‘as applied’ or

case-by-case basis” something the Texas Supreme Court flatly rejected. Weiner,

900 S.W.2d at 320. There is no individual burden,7 and Appellants cannot create

one out of whole cloth, in direct contradiction of Texas Supreme Court precedent.

       Appellants can attempt to cloud the issue, but Weiner, Sax, and Adams are

clear: TMLA § 74.251(a) and its predecessors are facially unconstitutional as

applied to minors under the open courts provision of article I, section 13 of the

Texas Constitution because a minor cannot sue on his or her own behalf until

reaching the age of majority. Weiner, 900 S.W.2d at 318-21, Sax, 648 S.W.2d at

667, Adams, 179 S.W.3d at 103. Appellants cite no authority contrary to Weiner,

Sax, or Adams. Indeed, there is no authority which holds TMLA § 74.251(a)’s

limitations provisions for minors (or its predecessors) constitutional.

7
  See id. “We fail to see any benefit in requiring a minor to show that his or her parent was
incompetent or failed to act in the minor’s best interests by not pursuing a medical malpractice
claim, especially when the very failure of the parent to do so leaves the minor without any legal
recourse.”
                                                                                              10
                   2. The Statute of Limitations Applicable to Gabriela
                      Lopez’s Cause is Texas Civil Practice and Remedies
                      Code § 16.003, as Tolled by § 16.001.

       The Texas Supreme Court in Weiner v. Wasson held that the limitations

period that applies to minors’ health care liability claims under former TMLIIA §

10.01 is set forth in Texas Civil Practice and Remedies Code sections 16.001 and

16.003, which “together provide a general statute of limitations for minors’

personal injury claims.” Weiner, 900 S.W.2d at 321. (citing Sax, 648 S.W.2d at

663) (noting “these provisions date back to at least 1911”). As the Supreme Court

explained, “Section 16.003 establishes a two-year limitations period, but section

16.001 tolls this period until the minor reaches age eighteen.” Weiner, 900 S.W.2d

at 321. Specifically, section 16.001 provides, “a person is under a legal disability

if the person is: [] younger than 18 years of age.” Tex. Civ. Prac. & Rem. Code §

16.001(a)(1). “If a person entitled to bring a personal action is under a legal

disability when the cause of action accrues, the time of the disability is not

included in a limitations period.” Id. § 16.001(b). Accordingly, the Texas Supreme

Court stated, “we conclude that the limitations period provided by the general

tolling and limitations provisions of Texas Civil Practice and Remedies Code

sections 16.001 and 16.003 apply to [the plaintiff’s] claim.” Weiner, 900 S.W.2d at

321.



                                                                                 11
      Because it is undisputed that Gabriela Lopez was a minor at the time at the

time of the health care which is the basis of her claims in this cause, Gabriela

Lopez could not sue on her own behalf until she reached majority. Accordingly,

TMLA § 74.251(a) violates article I section 13 of the Texas Constitution, and

Texas Civil Practice and Remedies Code sections 16.001 and 16.003 apply to her

claim. Id.

      3.     Gabriela Lopez’s Notice of Health Care Liability Claim Tolls the
             Applicable Statute of Limitations for 75 Days.

      The presuit notice provision of the Texas Medical Liability Act (TMLA),

Texas Civil Practice and Remedies Code section 74.051(a), provides that

             Any person or his authorized agent asserting a health care
             liability claim shall give written notice of such claim by
             certified mail, return receipt requested, to each physician or
             health care provider against whom such claim is being made at
             least 60 days before the filing of a suit in any court of this state
             based upon a health care liability claim. The notice must be
             accompanied by the authorization form for release of protected
             health information as required under Section 74.052.

      Timely notice provided under TMLA § 74.051(a) tolls “the applicable

statute of limitations.” TMLA § 74.051(c) provides that

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

(emphases added).     Nowhere does section 74.051(c) limit its application to only

claims brought within the TMLA’s § 74.251(a) limitations provision, as Appellants
                                                                              12
ask this Court to hold. Indeed, such a limitation would not only be without basis in

the language of the statute but also in the Supreme Court’s analysis of its

legislative history.8     The Texas Supreme Court has, on multiple occasions,

explained “the purpose of the [presuit] notice provision,” “is to encourage

negotiations and settlement of disputes prior to suit, thereby reducing litigation

costs.” Jose Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 68, 72-73 (Tex.

2011) (citing Garcia v. Gomez, 319 S.W.3d 638, 643 (Tex. 2010)). The Carreras

Court expounded that “by requiring a potential claimant to authorize the disclosure

of otherwise privileged information sixty days before suit is filed, the statute

[would] provide[] an opportunity for health care providers to investigate claims

and possibly settle those with merit at an early stage.” Id. at 73 (quoting In re

Collins, 286 S.W.3d 911, 916-17 (Tex. 2009)); see also Schepps v. Presbyterian

Hosp. of Dallas, 652 S.W.2d 934, 938 (Tex. 1983) (interpreting the predecessor

notice provision, TMLIIA § 4.01) (“The intent of the Keeton Commission and the

Legislature was to encourage pre-suit negotiations so as to avoid excessive cost of

litigation.”).




8
 Jose Carreras, M.D., P.A. v. Marroquin, 339 S.W.3d 68, 72-73 (Tex. 2011) (explaining that the
Legislature originally introduced the 60-day notice requirement provision TMLIIA in 1977 65th
Leg., R.S., ch. 817, § 4.01, 1977 Tex. Gen. Laws 2039, 2047-48, repealed by Act of June 2,
2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884).

                                                                                           13
      It is undisputed that Gabriela Lopez’s claims are health care liability claims.

It is undisputed that under the TMLA, Gabriela Lopez must provide at least 60-

days’ notice of claim before filing of a suit based upon a health care liability claim.

Tex. Civ. Prac. & Rem. Code § 74.051(a). It is undisputed that Gabriela Lopez

complied with TMLA § 74.051’s 60-day presuit notice requirement. It cannot be

disputed that the notice statute provides as follows: “Notice given as provided in

this chapter shall toll the applicable statute of limitations to and including a period

of 75 days following the giving of the notice,” and does not limit the “applicable

statute of limitations” to TMLA § 74.251(a). Tex. Civ. Prac. & Rem. Code at

§74.051(c) (emphasis added).

      Rather than look to the Supreme Court’s analysis of the legislative history of

the purpose of the presuit notice provision, Appellants attempt to read the minds of

legislators to limit the universe of the undefined term “applicable statute of

limitations.” While it may be true that Sax and Weiner had not been decided in

1977, they had certainly been decided when the TMLA was enacted in 2003. If

the Legislature were so intent on restricting the “applicable statute of limitations”

to TMLA § 74.251(a) as Appellants contend, they certainly could have done so in

2003, when they were well aware of Sax and Weiner, and according to Appellants,

were purposefully ignoring Weiner in leaving the language of TMLA § 74.251(a)

unchanged. (Brief of Appellants at 16,18).

                                                                                    14
      Appellants cite no reason why the purpose of the presuit notice statute would

or should be any different for Gabriela Lopez than it is for any other potential

claimant.   But rather than utilize the 60-day presuit notice provision and its

concomitant 75-day tolling provision to “investigate” and “encourage negotiations

and settlement of disputes prior to suit, thereby reducing litigation costs,”

Carreras, 339 S.W.3d 72-73 (citing Garcia, 319 S.W.3d at 643; In re Collins, 286

S.W.3d at 916-17), Appellants have instead chosen to attack Appellee Gabriela

Lopez for having followed Supreme Court and San Antonio Court of Appeals

precedent and abided by the provisions of TMLA §§ 74.051-74.052.

      Indeed, it is well-settled in Texas that pursuant to TMLA § 74.051(c), a

notice of health care liability claim and authorization form served in accordance

with section 74.051(a) tolls the running of the applicable statute of limitations for

seventy-five days. See, e.g., Rabatin v. Kidd, 281 S.W.3d 558, 562 (Tex. App.—El

Paso 2008, no pet.) (where notice of claim and authorization form were served

prior to the second anniversary of the medical treatment that was the subject of the

claim, plaintiff’s petition, filed two years and seventy-five days after the treatment,

was timely); Mock v. Presbyterian Hosp., 379 S.W.3d 391, 392, 394 (Tex. App.—

Dallas 2012, pet. denied) (where notice of claim and authorization form were

served prior to the second anniversary of the medical treatment that was the subject

of the claim, plaintiff’s petition, filed two years and sixty-nine days after the

                                                                                    15
treatment, was timely); Tejada v. Gernale, 363 S.W.3d 699, 703-08 (Tex. App.—

Houston [1st Dist.] 2011, no pet.) (where notice of claim and authorization form

were served one day prior to the second anniversary of the medical treatment that

was the subject of the claim, plaintiff’s petition, filed two years and seventy-four

days after the treatment, was timely). Accord De Romo v. St. Mary of Plains Hosp.

Found., 843 S.W.2d 72, 75 (Tex. App.—Amarillo 1992, writ denied) (under the

predecessor statute to the TMLA, Tex. Rev. Civ. Stat. art. 4590i, § 10.01, notice of

a claim served within the two-year limitations period “tolled the statute of

limitations for seventy-five days, effectively crating a two year and seventy-five

day statute of limitations.”); Karley v. Bell, 24 S.W.3d 516, 519 (Tex. App.—Fort

Worth 2000, pet. denied) (“Notice given in accordance with section 4.01(a) [the

TMLIIA predecessor to TMLA § 74.051(c)] tolls the applicable statute of

limitations for seventy-five days, effectively creating a two-year-and-seventy-five-

day statute of limitations”).

      Because Appellee Gabriela Lopez was a minor at the time her health care

liability claim arose, “the limitations period provided by the general tolling and

limitations provisions of Texas Civil Practice and Remedies Code sections 16.001

and 16.003 apply to [her] claim.” Weiner, 900 S.W.2d at 321.           The two year

statute of limitations under section 16.003 started to run on her eighteenth birthday,

March 11, 2011. Appellee Lopez served a notice of her claim, accompanied by the

                                                                                   16
authorization for release of protected health information in accordance with TMLA

§ 74.051(a), on March 8, 2013, prior to the expiration of the two year statute of

limitations. Appellants do not dispute that the notice and authorization forms

complied with TMLA § 74.051(a) and were served prior to Appellee Gabriela

Lopez’s twentieth birthday. Due to her service of a notice of claim and

authorization form prior to the expiration of two years, TMLA §§ 74.051(c) and

74.052 tolled Appellee Gabriela Lopez’s limitations until May 22, 2013 (i.e., two

years and seventy-five days after her eighteenth birthday). Carreras, 339 S.W.3d

at 74. Appellee Gabriela Lopez filed this cause on May 17, 2013, well within the

statute of limitations as tolled. Id.; Mock, 379 S.W.3d at 392, 394.

      Appellants’ argument that adequate and timely notice under TMLA §

74.051(c) did not toll the statute of limitations for seventy-five days is entirely

without merit. Appellants cite one case for the proposition that the statute of

limitations applicable to Gabriela Lopez’s claim expired on her twentieth birthday

and could not be subject to any further tolling: Medina v. Lopez Roman, 49 S.W.3d

393 (Tex. App.—Austin, 2000, pet. denied). The plaintiff in Medina, who was a

minor when his claim arose, filed suit on his twentieth birthday, within the

standard two year statute of limitations. 49 S.W.3d at 399. Therefore, the Court

never reached the question of whether the notice of claim served by the plaintiff

tolled the statute of limitations – the question was unnecessary and irrelevant to the

                                                                                   17
Court’s opinion. The Medina Court’s silence regarding the effect of a notice of

claim does not carry any authoritative value whatsoever. See, e.g., Texas Indus.

Traffic League v. Railroad Comm’n of Tex., 628 S.W.2d 187, 208 (Tex. App.—

Austin 1982), rev’d on other grounds, 633 S.W.2d 821 (Tex. 1982) (rejecting

appellants’ argument that silence by the Texas Supreme Court on an issue which

the Court could have decided was “tantamount to an affirmative declaration and

holding on the legal rule,” explaining that “[w]e are, in fact, requested [by

appellants] to infer from the Supreme Court’s silence in those three decisions the

promulgation of a legal rule, principle or proposition to the effect argued for by

appellants. We find this contention extremely illogical, and reject it.”) (emphasis

added). Courts in Texas are expected to exercise “judicial restraint.” VanDevender

v. Woods, 222 S.W.3d 430 (Tex. 2006) (“the cardinal principle of judicial restraint

– if it is not necessary to decide more, it is not necessary to decide more – counsels

us to go no further”). The Medina Court’s exercise of judicial restraint cannot be

interpreted as an affirmative ruling.

      The language of TMLA § 74.051(c) and the weight of authority support a

conclusion that a notice of health care liability claim and authorization form served

in accordance with section 74.051(a) tolled Appellee Gabriela Lopez’s limitations

for seventy-five days, regardless of whether to TMLA § 74.251(a) or Civil Practice

and Remedies Code sections 16.001 and 16.003 applied to her claims. To find

                                                                                   18
otherwise, as Appellants ask this Court to do, is to create a trap for the unwary that

is nowhere apparent—not in case law, and certainly not in the letter of the TMLA.

To follow the Appellants lead, unsuspecting minor plaintiffs, who, like Gabriela

Lopez, do nothing but follow the pre-suit notice provision in TMLA § 74.051(c),

would lose their day in court to a nowhere-noticed, unannounced, unlegislated

technicality which, unlike the 60-day pre-suit notice provision, serves no valid

purpose whatsoever. Appellee Lopez has already suffered a grievous physical

injury at the hands of Appellants. Appellants should not be allowed to now, ex

post facto, change the application of TMLA § 74.051(c) to deprive her of her day

in court.

                                  CONCLUSION

       It is undisputed that Gabriela Lopez was a minor at the time of the health

care made the basis of her claims in this cause, and thirty years of precedent in the

Texas Supreme Court and the San Antonio Court of Appeals holds the language in

section 74.251(a) and its predecessor statutes unconstitutional as applied to minors.

Accordingly, the trial court correctly concluded that TMLA § 74.251(a) is facially

unconstitutional and violates Texas Constitution article I, § 13’s Open Courts

provision and correctly determined that Texas Civil Practice and Remedies Code

§§ 16.001 and 16.003 govern limitations as to Gabriela Lopez’s health care

liability claims.

                                                                                   19
       It is undisputed that (i) Gabriela Lopez’s claim is a health care liability

claim, which, by statute, requires presuit notice; (ii) Gabriela Lopez complied with

TMLA’s section 74.051’s 60-day presuit notice requirement; (iii) the statute states:

“Notice given as provided in this chapter shall toll the applicable statute of

limitations to and including a period of 75 days following the giving of the notice,”

and does not limit the “applicable statute of limitations” to TMLA 74.251(a); and

(iv) the purpose of the 60-day notice and concomitant 75-day tolling provision is to

encourage investigation of claims, negotiation, and settlement. Thus, the trial court

did not err in concluding that TMLA § 74.051(c) applies to further toll limitations

under Texas Civil Practice and Remedies Code §§ 16.001 and 16.003 for Gabriela

Lopez’s health care liability claim, for a period of 75 days following her giving of

notice and authorization for release of protected health information to Appellants

on March 8, 2013, which was prior to the expiration of the applicable two-year

statute of limitations. As applied, TMLA §§ 74.051(c) and 74.052 tolled Gabriela

Lopez’s health care liability claim until May 22, 2013. Because Gabriela Lopez

filed her health care liability claim lawsuit on May 17, 2013, the applicable statute

of limitations does not bar her health care liability claim against Appellants.




                                                                                  20
                                     PRAYER

      WHEREFORE, Appellee respectfully requests that the Court affirm the trial

court’s order denying Appellants’ motions for summary judgment, and that the

Court grant such other relief as to which Appellee may be justly entitled.



                                RESPECTFULLY SUBMITTED,

                                K E I T H L A W F I R M, P. C.
                                301 Commerce Street, Suite 2850
                                Fort Worth, Texas 76102
                                T. 817.338.1400
                                F. 817. 870.2448

                                By: /s/ Darrell Keith
                                   Darrell Lee Keith, Attorney-in-Charge
                                   SBOT No. 11186000
                                   dkeith@keithlaw.com
                                   Laura A. Russell
                                   SBOT No. 24046777
                                   lrussell@keithlaw.com

                                ATTORNEYS FOR APPELLEE
                                GABRIELA LOPEZ




                                                                             21
                    CERTIFICATE OF COMPLIANCE

     I certify that this document was produced on a computer using Microsoft
Word 2010 and contains 5446 words, as determined by the computer software’s
word-count function, excluding sections of the document listed in Texas Rule of
Appellate Procedure 9.4(i)(1).

                                    By: /s/ Darrell Keith
                                       Darrell Lee Keith




                                                                            22
                       CERTIFICATE OF SERVICE

      I certify that on March 3, 2015, I served a true and correct copy of the
foregoing Amended Brief of Appellee by electronic service upon all counsel of
record for the Appellants.

                                   By: /s/ Darrell Keith
                                      Darrell Lee Keith


Diana L. Faust                         VIA ELECTRONIC SERVICE
R. Brent Cooper
Kyle M. Burke
Cooper & Scully, P.C.
900 Jackson St., Suite 100
Dallas, Texas 75202
Appellate Counsel for Appellants
Juan Francisco Montalvo,
M.D., Miguel E. Najera,
J.D., Executor of Estate Of
Miguel E. Najera, M.D.,
Deceased, Winder N. Vasquez,
M.D., Laredo Regional
Medical Center, L.P. d/b/a
Doctors Hospital of Laredo


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




                                                                           23
Mr. W. Richard Wagner              VIA ELECTRONIC SERVICE
rwagner@wagnercario.com
Mr. Peter Cario
pcario@wagnercario.com
Wagner Cario, L.L.P
7718 Broadway, Suite 100
San Antonio, Texas 78209
Trial Counsel for Appellant
Miguel E. Najera, J.D., Executor
of Estate Of Miguel E. Najera,
M.D., Deceased

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

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




                                                            24
