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



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



                                  JEANNE COOK,
                                     Appellant,

                                          v.

                              WARREN F. NEELY, M.D.
                                   Appellee.


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



                            REPLY BRIEF OF APPELLANT



TO THE HONORABLE COURT OF APPEALS:

      COMES NOW Appellant herein and Plaintiff below, JEANNE COOK,

hereinafter referred to as “Cook,” and files this her Reply Brief in the above-entitled

and -numbered cause.




REPLY BRIEF OF APPELLANT
                                           1
                          ARGUMENT AND AUTHORITIES

      At first blush, the Brief of Appellee Warren Neely (“Neely”) appears to state

a compelling argument regarding the sweeping breadth and depth of the Texas

Medical Liability Act (“TMLA”), vis-a-vis a line of cases which seem to resemble the

instant proceeding – wherein the operative facts potentially give rise to both a

“health care liability claim” (“HCLC”), and a fraud (or similar) claim. Neely cites

authority-after-authority-after-authority, which seem to collectively echo a mantra of

“Thou shalt not recast an HCLC into a fraud claim.” But a careful reading of the

cited authorities reveals an inconvenient truth, and it is reflected in the following

excerpt from the Brief of Appellee:

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

Brief of Appellee, p. 15 (emphasis added)

      Simply stated, the bolded portion above is the linchpin for Neely’s entire

argument regarding the viability of Cook’s fraud claim, and this Reply Brief will

demonstrate the undeniable collapse of the linchpin, pursuant to the unique facts

presented by this case.



REPLY BRIEF OF APPELLANT
                                            2
       As referenced above, Neely cites a litany of case law which purports to

undermine the viability of a fraud claim like Cook’s, i.e., one that arises within a

broader HCLC context. Moreover, Neely casually dismisses the opinions cited as

primary authority by Cook, in her Appellant’s Brief, e.g., Sorokolit v. Rhodes, 889

S.W.2d 239 (Tex. 1994); Crundwell v. Becker, 981 S.W.2d 880 (Tex. App. –

Houston [1st Dist.] 1998, pet. denied); Melissinos v. Phamanivong, 823 S.W.2d 339

(Tex. App. – Texarkana 1991, writ denied); Garcia v. Columbia Med. Ctr., 996 F.

Supp. 605, 610 (E.D. Tex. 1998). Ruiz v. Walgreen Co., 79 S.W.3d 235, 239 (Tex.

App. – Houston [14th Dist.] 2002, no pet.); Rogers v. Crossroads Nursing Serv., Inc.,

13 S.W.3d 417, 419 (Tex. App. – Corpus Christi 1999, no pet.) (henceforth,

collectively referred to as the Sorokolit line of cases). As discussed previously in

Appellant’s Brief, all of these cases stand for the proposition that a fraud (or similar)

claim is indeed viable in the context of an HCLC, yet Neely derisively labels them as

(1) “outdated,” or at the very least (2) distinguishable.

       In labeling these cases as “outdated,” Neely implies that the subsequent

enactment of the TMLA, and/or the holding in subsequent cases such as Diversicare

General Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005) (henceforth, referred to

collectively as the “Diversicare line of cases”), somehow overrules the earlier



REPLY BRIEF OF APPELLANT
                                             3
precedent. Yet this implication is unfounded and unsupported, as Neely can cite to

no authority which explicitly overturns this time-honored line of cases.

      And rather than existing at-odds with one another, there is indeed a profound

harmony among these authorities. As stated previously, the linchpin which creates

the harmony is the qualification which appears throughout the entire Diversicare line

of cases – these holdings are limited to cases wherein the plaintiff is attempting

to avoid the requirements and limitations of the TMLA. Thus, the presence of this

qualification begs the question as to what is the meaning of the phrase “requirements

and limitations.” A careful review of the provisions of Chapter 74 reveals a multitude

of procedural requirements including, inter alia, notice requirements, expert-report

requirements, prescribed forms, discovery procedure, and so on. See, e.g. T EX. CIV.

P RAC. & REM. CODE §§74.051; 74.052, 74.053; 74.351; 74.352; 74.401; 74.403.

Moreover, limitations in the form of damage caps, as well as a statute of limitations,

are included. See, e.g. T EX. CIV. P RAC. & REM. CODE §74.251; Subchapter G. Yet

nowhere within the text of Chapter 74 is there an explicit proscription against fraud

(or similar) claims, in the context of an HCLC.

      Having established what constitutes the “requirements and limitations” of the

TMLA, the analysis necessarily shifts to an examination of whether Cook’s fraud



REPLY BRIEF OF APPELLANT
                                            4
claim is merely an artfully pleaded end-around, designed to circumvent these

requirements and limitations. Yet this Court need look no further than the fact that

Cook’s abidance with the TMLA requirements and limitations were never

challenged by Neely. Indeed, Neely has failed to pinpoint any specific TMLA

requirement or limitation which was effectively usurped or preempted by way of

Cook’s fraud claim. A blanket statement regarding Cook’s avoidance of the TMLA

by way of her fraud claim, without support, is legally insufficient.

      Surprisingly, Cook generally agrees with one of Neely’s arguments – the lines

of cases cited by the respective parties are indeed distinguishable. However, it is the

Diversicare line of cases which is so factually distinguishable that they have no

precedential value in this proceeding. To wit, each and every opinion within the

Diversicare line of cases – without fail – involves a pre-trial challenge to the

plaintiff’s abidance with one or more of the TMLA requirements and

limitations. See Diversicare Gen. Partners, Inc. v. Rubio, 185 S.W.3d 842 (Tex.

2005); Tex. West Oaks Hosp., L.P. v. Williams, 371 S.W.3d 171 (Tex. 2012);

Yamada, M.D. v. Friend, 355 S.W.3d 192 (Tex. 2010); Loaisiga v. Cerda, 379

S.W.3d 248 (Tex. 2012); Saleh v. Hollinger, 335 S.W.3d 368 (Tex. App. – Dallas

2011, no pet. hx); Lee v. Boothe, 235 S.W.3d 448 (Tex. App. – Dallas 2007, pet.

REPLY BRIEF OF APPELLANT
                                            5
denied); Perry v. Samuels, 307 S.W.3d 826, 828 (Tex. App. – Dallas 2010, no pet.);

Turtle Healthcare Group, L.L.C. v. Linan, 337 S.W.3d 865 (Tex. 2011); Harris Meth.

Ft. Worth v. Ollie, 342 S.W.3d 525 (Tex. 2011); Harris Meth. Ft. Worth v. Ollie, 342

S.W.3d 525 (Tex. 2011); Omaha Healthcare Center, L.L.C. v. Johnson, 344 S.W.3d

392 (Tex. 2011). The entirety of the Diversicare line of cases, revolves around either

(1) a plaintiff whose expert report does not pass muster under the TMLA, or (2) a

plaintiff whose statute of limitations has expired – defects which were challenged and

adjudicated pre-trial.   Accordingly, with the demise of their        HCLC claim, the

plaintiffs in this Diversicare line of cases have no choice but to try and bootstrap their

way into a viable claim – by recasting their HCLC as a fraud (or similar) claim.

These claims were dismissed, and justifiably so, as improper attempts to circumvent

the requirements and limitations of the TMLA.

      But it cannot be overstated that Cook never attempted to circumvent the

requirements and limitations of the TMLA, as her abidance therewith was never

challenged. To wit, the record is devoid of a challenge to the adequacy of Cook’s

expert report, as Neely never even filed an objection thereto. And it is this truth –

inconvenient as it is for Neely – which distinguishes Cook’s claim from the

Diversicare line of cases. Moreover, it is this inconvenient truth which places her



REPLY BRIEF OF APPELLANT
                                            6
squarely within the ambit of the Sorokolit line of cases – and thereby creates a viable

claim as more fully discussed in Appellant’s Brief.



Evidence of Fraud

      Finally, Neely’s arguments regarding Cook’s alleged failure to produce

sufficient evidence of fraud is belied by the bevy of evidence cited in Appellant’s

Brief, and they do not merit an extensive reply. The evidence cited in Appellant’s

Brief is probative of multiple misrepresentations of fact – by both commission and

omission – upon which Cook relied to her detriment. Said evidence is thoroughly

cited in the tables appearing in Appellant’s Brief on pages 16-20.



                                       PRAYER

      WHEREFORE, Cook respectfully prays that her appeal be granted; that the

verdict be set aside and reversed; and that the case be remanded for further

proceedings in the trial court, to include a jury trial de novo. Cook further prays that

costs be taxed against Appellee and that Cook be granted such additional relief, at law

or in equity, to which she may be entitled.




REPLY BRIEF OF APPELLANT
                                              7
                                              Respectfully submitted,

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

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




                          CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing

instrument will be sent via fax transmission to opposing counsel on this the 10th day

of February, 2014.

                                                   /s/
                                              DAIN A. DREYER




REPLY BRIEF OF APPELLANT
                                          8
