                                                                             ACCEPTED
                                                                          01-15-00350-cv
                                                              FIRST COURT OF APPEALS
                                                                      HOUSTON, TEXAS
                                                                   9/17/2015 10:24:05 AM
                                                                   CHRISTOPHER PRINE
                                                                                  CLERK

                     No. 01-15-00350-CV

             IN THE FIRST COURT OF APPEALS            FILED IN
                                               1st COURT OF APPEALS
                                                   HOUSTON, TEXAS
                   AT HOUSTON, TEXAS           9/17/2015 10:24:05 AM
___________________________________________________________
                                               CHRISTOPHER A. PRINE
                                                        Clerk

                      SHAN KOVALY,
                        Appellant

                              v.

           TULSIDAS KURVANKA, ET AL., AND
              IKEDINOBI U. ENI, M.D., ET AL.,
                         Appellees
___________________________________________________________

           Appeal from Cause No. 2014-66001, in the
          113th District Court of Harris County, Texas
___________________________________________________________

                   APPELLANT’S BRIEF
___________________________________________________________

                               SIMPSON, P.C.

                               Iain G. Simpson
                               State Bar No. 00791667
                               1333 Heights Boulevard, Suite 102
                               Houston, Texas 77008
                               (281) 989-0742
                               iain@simpsonpc.com
                               APPELLATE COUNSEL FOR
                               SHAN KOVALY


    ORAL ARGUMENT CONDITIONALLY REQUESTED
                                       TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ...................................................... v

INDEX OF AUTHORITIES .............................................................................. vii

STATEMENT OF THE CASE ............................................................................ ix

STATEMENT CONCERNING ORAL ARGUMENT ..................................... x

ISSUES PRESENTED ........................................................................................... 1

         The trial court erred by granting all defendants/appellees
         summary judgment on Kovaly’s healthcare liability claims.

STATEMENT OF FACTS .................................................................................... 2

         Factual History .......................................................................................... 2

         Procedural History .................................................................................... 3

SUMMARY OF THE ARGUMENT ................................................................... 4

ARGUMENT ......................................................................................................... 5

         I.       The Standard of Review................................................................ 5

         II.      Kovaly’s cause of action accrued, at the earliest on
                  August 20, 2012................................................................................ 6

         III.     The Medical Liability Act’s limitations period is two
                  years—plus 75 days where pre-suit notice is given................. 7

                  1.       The Medical Liability Act’s tolling provision. ........................ 7

                           a.       “Tolling and “notice” are not the same
                                    thing. ............................................................................. 8


                                                           ii
                            b.       Under De Checa, notice given to one party
                                     tolls limitations as to all potential parties,
                                     including those who do not receive notice. ............ 9

                  2.        Notice to Wal-Mart Stores Texas tolled limitations as
                            to Drs. Eni and Kuruvanka. .................................................. 10

                  3.        The Appellees argued before the trial court that the
                            opportunity for pre-suit evaluation and settlement
                            negotiation is a significant policy consideration. But
                            it is not the only pertinent consideration. ............................. 12

                  4.        The policy preference for pre-suit evaluation gives
                            way to other considerations. .................................................. 13

         IV.      Kovaly gave notice to a defendant within two years
                  and filed the instant suit within the extended
                  limitations period, and the trial court’s granting
                  summary judgment on the basis of limitations was,
                  therefore, erroneous. .................................................................... 16

CONCLUSION ................................................................................................... 17

PRAYER ............................................................................................................... 18

CERTIFICATE OF COMPLIANCE ................................................................. 19

CERTIFICATE OF SERVICE ............................................................................ 20

APPENDIX

         Summary Judgment Order .................................................... Appendix 1

         TEX. CIV. PRAC. & REM. CODE § 74.051. ................................. Appendix 2

         TEX. CIV. PRAC. & REM. CODE § 74.052 .................................. Appendix 3


                                                            iii
TEX. CIV. PRAC. & REM. CODE § 74.251 .................................. Appendix 4




                                     iv
                 IDENTITY OF PARTIES AND COUNSEL

APPELLANT

Shan Kovaly

Appellate Counsel:                       Trial Counsel:

Iain G. Simpson                          Steven R. Davis
Simpson, P.C.                            Davis & Davis
1333 Heights Boulevard, Suite 102        440 Louisiana, Suite 1850
Houston, Texas 77008                     Houston, Texas 77002
(281) 989-0742                           (713) 781-5200
(281) 596-6960 – facsimile               (713) 781-2235 – facsimile
iain@simpsonpc.com                       steve@davis-davislaw.com

APPELLEES

Tulsidas Kuruvanka, M.D., and Northwest Houston Cardiology, P.A.

Trial Counsel:

James B. Edwards
Edwards & Stephens
12603 Southwest Freeway, Suite 200
Stafford, Texas 77477
(281) 277-4940
(281) 277-4974 – facsimile
jbe@malpracticedefense.com




                                     v
Ikedinobi U. Eni, M.D.; Ikedinobi U. Eni, M.D., P.A.; and Eni Health Care

Trial Counsel:

Joel Sprott
Sprott, Newsom, Lunceford, et al.
2211 Norfolk, Suite 1150
Houston, Texas 77098
(713) 523-8338
(713) 523-9422 – facsimile
sprott@sprottnewsom.com

Lead Appellate Counsel:

Diana Faust
Cooper & Scully, PC
900 Jackson Street, Suite 100
Dallas, Texas 75202
Diana.faust@cooperscully.com




                                    vi
                                 INDEX OF AUTHORITIES

Cases

Carreras v. Marroquin,
      339 S.W.3d 68 (Tex. 2011)..................................................................... 13

College Station Med. Ctr. v. Kilaspa,
      No. 10-14-00374-CV, 2015 Tex. App. LEXIS 7618
      (Tex. App.—Waco Jul. 23, 2015, n.p.h.). ................................. 14-15, 17

De Checa v. Diagnostic Ctr. Hosp.,
     852 S.W.2d 935 (Tex. 1993)................................... 8, 9, 10, 11, 13, 16, 17

Diversicare Gen. Ptnr., Inc. v. Rubio,
      185 S.W.3d 842 (Tex. 2005)......................................................................6

Mitchell v. The Methodist Hospital,
     376 S.W.3d 833
     (Tex. App.—Houston [1st Dist.] 2012, pet. denied) .................... 11, 12

Parrish v. Brooks,
      856 S.W.2d 522 (Tex. App.—Texarkana 1993, no writ). .................. 10

Provident Life & Accident Ins. v. Knott,
      128 S.W.3d 211 (Tex. 2003)......................................................................5

Pustejovsky v. Rapid-American Corp.,
      35 S.W.3d 643 (Tex. 2000)........................................................................6

Rabatin v. Vazquez,
      281 S.W.3d 563 (Tex. App.—El Paso 2008, no pet.). ........................ 10

Sewell v. Adams,
      854 S.W.2d 257, 261
      (Tex. App.—Houston [14th Dist.] 1993, no writ). ......................... 8, 10



                                                    vii
Shah v. Moss,
      67 S.W.3d 836 (Tex. 2001)........................................................................6

Thompson v. Community Health Inv.,
    923 S.W.2d 569 (Tex. 1996)........................................................... 7, 8, 16

Statutes

TEX. CIV. PRAC. & REM. CODE § 74.051.......................................... 3, 7, 8, 11-17

TEX. CIV. PRAC. & REM. CODE § 74.052............................................. 3, 7, 11, 12

TEX. CIV. PRAC. & REM. CODE § 74.251............................................. 6, 7, 14, 16

Rules

TEX. R. APP. P. 9.4 ............................................................................................. 18

TEX. R. APP. P. 38.1 ..............................................................................................1

TEX. R. CIV. P. 166a. .............................................................................................5




                                                         viii
                       STATEMENT OF THE CASE

                   Nature of the Underlying Proceeding

     The case before the Court is a healthcare liability claim based upon an

incorrectly written prescription for medication.

                              Subject of Relief

     The case comes before the Court on appeal from the trial court’s

granting summary judgment to all parties based upon the affirmative

defense of the statute of limitations. Kovaly seeks reversal of the trial

court’s Order.




                                     ix
          STATEMENT CONCERNING ORAL ARGUMENT

     Kovaly requests oral argument only conditionally.           Kovaly’s

arguments are based upon settled case law from the Texas Supreme Court.

It is the Appellees who are likely to argue that this Court should—as the

trial court did—ignore that settled precedent. The Appellees are, thus,

more likely to press for oral argument. Should the Court grant it to them,

Kovaly requests equal time. Otherwise, Kovaly waives oral argument.




                                    x
                            No. 01-15-00350-CV

                     IN THE FIRST COURT OF APPEALS

                       AT HOUSTON, TEXAS
    ___________________________________________________________

                            SHAN KOVALY,
                              Appellant

                                    v.

               TULSIDAS KURVANKA, ET AL., AND
                  IKEDINOBI U. ENI, M.D., ET AL.,
                             Appellees
    ___________________________________________________________

               Appeal from Cause No. 2014-66001, in the
              113th District Court of Harris County, Texas
    ___________________________________________________________

                       APPELLANT’S BRIEF
    ___________________________________________________________

     Pursuant to TEX. R. APP. P. 38.1, Appellant Shan Kovaly files this

Appellant’s Brief.

                           ISSUES PRESENTED

     The trial court erred by granting all defendants/appellees
     summary judgment on Kovaly’s healthcare liability claims.




                                    1
                         STATEMENT OF FACTS

Factual History

     The relevant facts are largely undisputed.       Kovaly presented to

Houston Northwest Medical Center on August 28, 2012, with complaints of

chest pain. CR 5. His evaluation revealed elevated cardiac biomarkers. Id.

Kovaly underwent angioplasty with stenting by Dr. Kuruvanka. Id. Upon

his discharge, Kovaly was prescribed Lopressor 25 mg twice a day,

Pravachol 20 mg at bedtime, aspirin 325 mg daily, Plavix 75 mg daily and

Lisinopril 10 mg twice daily. Id. Dr. Kuruvanka prescribed the medications,

and Dr. Eni discharged him from the hospital on August 30, 2012. Id.

Neither reviewed his prescriptions to ensure they were complete. Id.

     Subsequently, Kovaly timely presented his prescriptions to a Wal-

Mart pharmacy for filling. Id. Wal-Mart’s pharmacist refused to fill the

prescriptions due to the prescriptions’ omission of a quantity of pills to be

dispensed. Id. Neither Wal-Mart nor Kovaly were able to reach either of the

Defendant physicians over a period of the next four days. Id. On September

4, 2012, Kovaly was readmitted to Houston Northwest Medical Center with

chest pain. CR 6. Ultimately, he was found to have in-stent thrombosis,

attributable to the fact that he was not taking the prescribed Plavix—a


                                     2
blood thinner. Id. He has required additional hospitalization and treatment,

as a result. Id.

Procedural History

      On July 23, 2013, Kovaly, through his attorneys, sent pre-suit notice

and a health care authorization to Wal-Mart Stores Texas, LLC, as required

by TEX. CIV. PRAC. & REM. CODE §§ 74.051 and 74.052. CR 82-85. On July 25,

2013, Kovaly filed suit against Wal-Mart Stores Texas and several of its

unknown agents. CR 88-94. The facts, as recited by Kovaly’s lawsuit

against Wal-Mart Stores Texas, describe the same incident and injuries that

are the subject of the case at bar. Id. Wal-Mart Stores Texas removed

Kovaly’s suit to federal court, where it ultimately was awarded summary

judgment on the grounds that it had no duty to fill an incomplete

prescription on October 21, 2014.1 On November 11, 2014—273 days after

leaving Dr. Eni’s and Dr. Kuruvanka’s care—Kovaly filed the instant suit.

CR 3-9.

      Both the Eni and Kuruvanka defendants made appearances and later

moved for traditional summary judgment on the sole ground of the statute



1     The ruling is currently on appeal before the Fifth Circuit Court of Appeals.



                                           3
of limitations, arguing that Kovaly filed suit against them outside the two-

year limitations period.    CR 21-29; 35-45.     Both sets of defendants

acknowledged the notice letter and authorization sent by Kovaly to Wal-

Mart in July of 2013. CR 30-33; 55-58. In his summary judgment response,

Kovaly argued that notice to one potential defendant triggers a 75-day

tolling period under the Texas Medical Liability Act, after which the

limitations period continues to run and that his notice to Wal-Mart was

sufficient to trigger the tolling period.      CR 68-81. The defendants

responded that the notice to Wal-Mart was not sufficient to trigger the

tolling period as to anyone but Wal-Mart and, consequently, the regular

two-year statute applied. CR 95-102. Shortly following argument, the trial

court granted summary judgment to all defendants. CR 103. Kovaly timely

filed a Motion for New Trial (CR 104-107) and subsequently appealed. CR

108-109.

                   SUMMARY OF THE ARGUMENT

     Pre-suit notice is not a sacred cow. The actual notice that is needed

for a defendant to have sufficient information to decide whether to

negotiate a settlement or opt in for litigation is not the same as the

constructive notice that serves to toll limitations under the Medical


                                     4
Liability Act. Settled Texas Supreme Court precedent establishes that the

latter requires only notice sent to one party to toll limitations as to every

party and potential party. Notice as to one equals tolling as to all. The

remedy for the healthcare provider who does not receive pre-suit notice is

abatement, not summary judgment. Texas law recognizes that, while an

opportunity to evaluate a claim before filing an appearance is laudable

policy, that policy gives way when effective and efficient judicial

administration calls for a uniform limitations period and an opportunity to

evaluate a case on its genuine merits. The trial court’s Order erroneously

ignores the rule set by the Texas Supreme Court. That Order should be

reversed.

                                ARGUMENT

I.    The Standard of Review

      Texas appellate courts review summary judgments under a de novo

standard. Provident Life & Accident Ins. v. Knott, 128 S.W.3d 211, 215 (Tex.

2003). The party moving for summary judgment is charged with proving

that there are no material issues of fact and that it is entitled to judgment as

a matter of law. TEX. R. CIV. P. 166a(c). The case at bar presents a pure

legal issue for the Court to decide


                                       5
II.   Kovaly’s cause of action accrued, at the earliest, on August 30, 2012.

      A defendant moving for summary judgment on the affirmative

defense of limitations must prove conclusively the elements of that

defense. Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 646 (Tex. 2000).

This includes proving when the plaintiff’s cause of action accrued.

Diversicare Gen. Ptnr., Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). TEX.

CIV. PRAC. & REM. CODE § 74.251(a) “measures the limitations period for

medical negligence from one of three dates:         (1) the occurrence of the

breach or tort, (2) the last date of the relevant course of treatment, or (3) the

last date of the relevant hospitalization.” Shah v. Moss, 67 S.W.3d 836, 841

(Tex. 2001) (interpreting predecessor statute).

      All Defendants and Kovaly agreed before the trial court that Kovaly’s

cause of action accrued no earlier than August 30, 2012. CR 24; 39. This

date meets, arguably, all three of § 74.251(a)’s measures. It is the date

Kovaly was discharged from Houston Northwest Medical Center. It is the

date he received the deficient prescriptions from the Defendants. And it is,

again arguably, the last date of the relevant course of treatment.




                                       6
III.   The Medical Liability Act’s limitations period is two years—plus 75
       days where pre-suit notice is given.

       The Medical Liability Act provides a limitations period of two years

from the date of accrual. TEX. CIV. PRAC. & REM. CODE § 74.251(a).

       1.   The Medical Liability Act’s tolling provision.

       The real crux of the Defendant’s summary judgment motions and the

trial court’s ruling on them is the applicability of TEX. CIV. PRAC. & REM.

CODE § 74.051(c)’s tolling provision. Sec. 74.051(a) requires that any person

or his authorized agent asserting a health care liability claim must give

written notice of the claim by certified mail to each physician or health care

provider against whom the claim is being made at least 60 days before

filing suit. See TEX. CIV. PRAC. & REM. CODE § 74.051(a). The notice must be

accompanied by a medical authorization in the form specified by TEX. CIV.

PRAC. & REM. CODE § 74.052(a). Service of the notice required by § 74.051

and the authorization required by § 74.052, accomplished within the

limitations period, tolls the applicable limitations period for 75 days. TEX.

CIV. PRAC. & REM. CODE § 74.051(c); Thompson v. Community Health Inv., 923

S.W.2d 569 (Tex. 1996).




                                        7
            a.    “Tolling” and “notice” are not the same thing.

      “Notice” is given to the party who receives a notice letter.          In

contrast, “tolling” applies to the health care provider who receives the

notice and authorization and also applies to “all parties and potential

parties,” as well. TEX. CIV. PRAC. & REM. CODE § 74.051(c); 923 S.W.2d, at

571. In short, once tolling is accomplished with respect to one party, it is

accomplished with respect to every party and every potential party. De

Checa v. Diagnostic Ctr. Hosp., 852 S.W.2d 935, 938 (Tex. 1993) (“[N]otice to

one serves to toll the limitations period for all.”). See also Sewell v. Adams,

854 S.W.2d 257, 261 (Tex. App.—Houston [14th Dist.] 1993, no writ) (“When

notice is sent to any health care provider within two years of the claim's

accrual, the limitations period for all defendants is tolled for seventy-five

days.”). “Proper presuit notice provided by the claimant within this initial

two-year period tolls the two-year limitations period for 75 days not only

as to the health care provider who actually received the notice before

limitations ran, but ‘to all parties and potential parties’ as well. After the

expiration of 75 days, the remaining portion of the limitations period

continues to run.” Thompson v. Community Health Inv., 923 S.W.2d, at 571.




                                      8
           b.    Under De Checa, notice given to one party tolls limitations
                 as to all potential parties including those who do not
                 receive notice.

     In De Checa, the Texas Supreme Court set out a timeline of significant

events. 852 S.W.2d, at 937, n. 3. It noted that the plaintiff’s limitations

period began to run on September 25, 1986. Id. It noted two dates within

the limitations period where the plaintiff gave notice of the claim to two

health care providers who were not ultimately involved in the appeal. Id.

Then it noted the close of the limitations period on September 25, 1988. Id.

And it recited the notification of the defendant physicians—Drs. Davis,

Burbridge, and Burnazian—who were involved in the appeal; notification

that came over two years after accrual of the cause of action, but less than

two years and 75 days from that accrual. Id. Finally, the Court noted that

the plaintiffs filed suit against the defendant physicians—Davis, Burbridge,

and Burnazian—within two years and seventy-five days from accrual of

the cause of action. Id. The Court observed that the plaintiffs “served

presuit notice of their claim on other health care providers who are not

involved in this proceeding within two years of accrual.       They served

presuit notice on the [defendants in that suit] within two years and

seventy-five days.” 852 S.W.2d, at 937.


                                     9
      The plaintiffs/appellants in De Checa argued that the notice of the

claim they sent to other defendants within the limitations period operated,

not as notice to Drs. Davis, Burbridge, and Burnazian, but to invoke the

medical liability statute’s tolling provision. Id. In response, the

defendants/appellees asserted the same argument that the Defendants

asserted in the trial court. They argued that, when a health care provider is

served with notice of a claim, the tolling period extends only to the

recipient of the notice. The Texas Supreme Court rejected the argument of

Drs. Davis, Burbridge, and Burnazian over twenty years ago, and the

argument has not gained credence with age. Indeed, it has been steadily

rejected. Parrish v. Brooks, 856 S.W.2d 522, 527 (Tex. App.—Texarkana 1993,

no writ); Rabatin v. Vazquez, 281 S.W.3d 563, 567 (Tex. App.—El Paso 2008,

no pet); Sewell, 854 S.W.2d, at 261. As the Texas Supreme Court held over

twenty years ago: “notice to one serves to toll the limitations period for

all.” De Checa, 852 S.W.2d, at 937.

      2.    Notice to Wal-Mart Stores Texas tolled limitations as to Drs. Eni and
            Kuruvanka.

      Kovaly does not suggest that notice to one party provides notice to

every party, only that—as the Texas Supreme Court and Texas appellate



                                       10
courts have held—notice to one party provides tolling as to all. See, e.g., 852

S.W.2d, at 937. Kovaly’s suit against Wal-Mart Stores Texas arose from the

same facts as the instant suit, and his pre-suit notice provided entirely

adequate notice to Wal-Mart.        CR 82-85.     This was sufficient to toll

limitations for 75 days as to both Wal-Mart and all other “potential

parties,” including the Defendants, herein. See TEX. CIV. PRAC. & REM. CODE

§ 74.051(c).

       Where tolling is not at issue—and the Texas Supreme Court’s holding

in De Checa demonstrates that, here, it is not—a defendant’s remedy, in the

event that it has not received an appropriate authorization to obtain

healthcare information, is abatement, not summary judgment. See TEX. CIV.

PRAC. & REM. CODE § 74.052(a) (failure to provide authorization along with

notice of claim abates further proceedings until 60 days following receipt of

the required authorization); Mitchell v. The Methodist Hospital, 376 S.W.3d

833, 839 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (“[T]he

abatement has a use in situations in which the tolling provision is not at

issue.”). 2



2     Both sets of defendants/appellees cited Mitchell in their summary judgment
motions. Notably, nowhere in Mitchell is there any suggestion that any party was


                                      11
      Both Motions for summary judgment argued that the statutorily

required authorization provided by Kovaly was insufficient because it

allowed only Wal-Mart access to his records. CR 25-26. Therefore, they

argue, it is insufficient because it did not provide these defendants with

authorization to obtain Kovaly’s medical records. Id. But the question is not

whether the authorization was adequate for them, but whether it was

adequate for Wal-Mart. Once adequate notice and authorization are served

on one party—and even Drs. Eni and Kuruvanka appeared to acknowledge

that this occurred—tolling occurs as to all parties and potential parties,

even if others have received no notice, adequate or not. De Checa, 852

S.W.2d, at 938.

      3.     The Appellees argued before the trial court that the opportunity for
             pre-suit evaluation and settlement negotiation is a significant policy
             consideration. But it is not the only pertinent consideration.

      The physician defendants argued with some force that the purpose of

pre-suit notice is to allow a healthcare provider to obtain medical records

and evaluate a potential claim before suit is ever filed. CR 26. There is no


timely served with notice and an appropriate medical authorization form. Indeed, the
Court specifically noted that the only notice letter sent by the Mitchell plaintiffs—to
defendant The Methodist Hospital—included an authorization that was not in the form
prescribed by TEX. CIV. PRAC. & REM. CODE § 74.052. 376 S.W.3d, at 834. Consequently,
§ 74.051(c)’s tolling provision was never invoked. It is a critical distinction.


                                          12
question that this is a goal of the Medical Liability Act’s notice provision.

See, generally, TEX. CIV. PRAC. & REM. CODE § 74.051.         But this policy

consideration gives way to other considerations, where necessary. As the

Texas Supreme Court observed in De Checa, “Our legislature intended to

enact a strict and predictable limitations period.” 852 S.W.2d, at 938. The

Court observed that parsing limitations periods depending on who

received timely notice and who did not would undermine this legislative

intent. Id. But this is exactly what was suggested by the Appellees before

the trial court and exactly what the trial court accepted. According to the

Appellees’ reading of the law, the limitations period applicable to Wal-

Mart is different than the limitations period applicable to Drs. Eni and

Kuruvanka, despite all claims against all parties arising out of substantially

the same transaction, arising within a single 24-hour period, and resulting

in the same claimed damages.

      4.    The policy preference for pre-suit evaluation gives way to other
            considerations.

      Before the trial court, the Drs. Eni and Kuruvanka leaned heavily on

the case of Carreras v. Marroquin, 339 S.W.3d 68 (Tex. 2011). In that case, the

Texas Supreme Court held that a pre-suit notice letter that did not include



                                      13
the statutorily required medical authorization form did not trigger the

tolling provision of TEX. CIV. PRAC. & REM. CODE § 74.051(c). From this, the

Appellees concluded that all parties and potential parties must receive a

pre-suit medical authorization for the tolling to be effective as to them,

even as they confessed that their argument has never been accepted by any

Texas court. CR 97.

     But pre-suit evaluation of claims is not the sacred cow that the

Appellees argued before the trial court. De Checa recognized that, under

exigent circumstances, a plaintiff may be required to file suit before the

sixty day pre-suit notice period elapses.    852 S.W.2d, at 938.    In such

instances, abatement—not summary judgment—is the available remedy.

The failure to serve a particular health care provider with notice—as

distinguished from a failure to serve any health care provider—results only

in abatement as to that defendant. Id.

     Moreover, at least one Texas court of appeals has recently held that

“providing” notice within the meaning of § 74.051(c) does not mean that a

notice letter even need be received to allow tolling of limitations. See

College Station Med. Ctr. v. Kilaspa, No. 10-14-00374-CV, 2015 Tex. App.

LEXIS 7618 (Tex. App.—Waco Jul. 23, 2015, n.p.h.). In Kilaspa, the plaintiffs


                                     14
filed suit against a physician defendant and the Medical Center defendant

outside the two-year limitations period of § 74.251(a), but within the extend

limitations period. The defendants moved for summary judgment on the

ground of limitations, arguing that neither received the statutory notice

letter and, thus, the tolling provision of § 74.051(c) was never triggered.

The plaintiffs admitted that they had sent no notice at all to the Medical

Center defendant but argued that the tolling provision was nevertheless

invoked because they timely mailed a sufficient notice to the physician

defendant, even though it was never received. They argued that the notice

was effective to toll limitations even if unclaimed or undelivered.

     A majority of the Waco court held that § 74.051 does not require a

plaintiff to ensure that a defendant actually receives notice. Consequently,

summary judgment for the physician defendant—to whom notice was sent,

but never received—was improper. But, more significantly for this case,

the Court also held that summary judgment for the Medical Center

defendant—to whom notice was never even sent—was unsupportable. As

long as appropriate notice was sent—meaning written notice of the claim

via certified mail, return receipt requested, sent within the two-year

limitations period—the limitations period was tolled as to both defendants,


                                     15
the one to which notice was sent and the one to which no notice was sent.

Once again, pre-suit evaluation gives way to greater considerations of

uniformity of limitations periods and allowing claims to go forward and

have their merits reached.

IV.   Kovaly gave notice to a defendant within two years and filed the
      instant suit within the extended limitations period, and the trial
      court’s granting summary judgment on the basis of limitations was,
      therefore, erroneous.

      On July 23, 2013, less than one year after his cause of action accrued,

Kovaly, through his attorneys, sent pre-suit notice and a health care

authorization to Wal-Mart Stores Texas, LLC. CR 82-85. Thus, Kovaly

served notice and an authorization on a healthcare provider well within the

two-year limitations period and began the 75-day tolling period. See De

Checa, 852 S.W.2d, at 938. After that 75 days expired, limitations began to

run again. Thompson, 923 S.W.2d, at 571 (“After the expiration of 75 days,

the remaining portion of the limitations period continues to run.”). On

Tuesday, November 11, 2014, Kovaly filed the instant suit. Under the

extended limitations period—that is, the two-year period provided by TEX.

CIV. PRAC. & REM. CODE § 74.251(a) plus the 75-day tolling period provided

by TEX. CIV. PRAC. & REM. CODE § 74.051(c)—the limitations period ended



                                     16
on Thursday, November 13, 2014. Thus, Kovaly filed his suit within the

extended limitations period.

      The trial court’s Order stands for the prospect that the 75-day tolling

provision of TEX. CIV. PRAC. & REM. CODE § 74.051(c) was never triggered.

It can be read no other way. And as such, it flies directly in the face of the

Texas Supreme Court’s holding in De Checa. It is erroneous, per se, and

merits reversal.

                               CONCLUSION

      Tolling and notice are not synonymous, and they do not go hand in

hand. Although the Appellees argued in the trial court that the law has

changed, the Texas Supreme Court’s precedent has not.          De Checa—as

established law—still governs this case and mandates reversal of the trial

court’s summary judgment Order. De Checa states clearly that the policy

behind pre-suit notice is not untouchable. It gives way where necessary to

maintain uniformity of law within the case and reach the merits of a claim.

      While the Appellees make much of the changes to the law that took

place in 2003 and post-date De Checa, no Texas court has, to date, accepted

their arguments, and the Waco court very recently appears to have rejected

them in Kilaspa. That ruling is wholly inconsistent with the Appellees’


                                     17
position before the trial court. Moreover, it is not for trial courts to buck

the established holdings of the Texas Supreme Court. Even the Appellees

appear to acknowledge that the facts and holding of De Checa are

applicable to the facts at bar. When the Texas Supreme Court overrules De

Checa, the trial court need no longer observe it. Until that happens, De

Checa is still law.

                                 PRAYER

      For the foregoing reasons, Appellant Shan Kovaly respectfully

requests that the trial court’s Order granting summary judgment to

Ikedinobi U. Eni, M.D.; Ikedinobi U. Eni, M.D., P.A.; and Eni Health Care,

and to Tulsidas Kuruvanka, M.D., and Northwest Houston Cardiology,

P.A., be reversed and that this case be remanded for further proceedings.




                                     18
                                   Respectfully submitted,

                                   SIMPSON, P.C.

                                   /s/ Iain G. Simpson
                                   ______________________________
                                   Iain G. Simpson
                                   State Bar No. 00791667
                                   1333 Heights Boulevard, Suite 102
                                   Houston, Texas 77008
                                   (281) 989-0742
                                   (281) 596-6960 (fax)
                                   iain@simpsonpc.com

                                   APPELLATE COUNSEL FOR
                                   SHAN KOVALY



                  CERTIFICATE OF COMPLIANCE

     I hereby certify that the foregoing Appellant’s Brief is computer-
generated, that those portions required to be counted by Rule 9.4(i)(1),
Texas Rules of Appellate Procedure, contain 3,551 words according to the
word-count function of the application used to create it, and that it
complies with the word-count requirements of Rule 9.4, Texas Rules of
Appellate Procedure. It is printed in 14-point typeface, except for the
footnotes, which are in 12-point typeface.


                                   /s/ Iain G. Simpson
                                   ______________________________
                                   Iain G. Simpson




                                  19
                      CERTIFICATE OF SERVICE

      I hereby certify that a copy of the foregoing Appellant’s Brief was
served this 17th day of September, 2015, via facsimile, hand delivery,
electronic service, or certified U.S. Mail, on the following:

James B. Edwards
Edwards & Stephens
12603 Southwest Freeway, Suite 200
Stafford, Texas 77477
(281) 277-4940
(281) 277-4974 – facsimile
jbe@malpracticedefense.com

COUNSEL FOR TULSIDAS KURUVANKA, M.D.,        AND   NORTHWEST HOUSTON
CARDIOLOGY, P.A.

Joel Sprott
Sprott, Newsom, Lunceford, et al.
2211 Norfolk, Suite 1150
Houston, Texas 77098
(713) 523-8338
(713) 523-9422 – facsimile
sprott@sprottnewsom.com

Diana Faust
Cooper & Scully, PC
900 Jackson Street, Suite 100
Dallas, Texas 75202
Diana.faust@cooperscully.com

COUNSEL FOR IKEDINOBI U. ENI, M.D.; IKEDINOBI U. ENI, M.D., P.A.; AND ENI
HEALTH CARE




                                     20
     /s/ Iain G. Simpson
     ____________________________
     Iain G. Simpson




21
APPENDIX 1
103
APPENDIX 2
      Sec. 74.051. NOTICE. (a) Any person or his authorized
agent asserting a health care liability claim shall give written
notice of such claim by certified mail, return receipt
requested, to each physician or health care provider against
whom such claim is being made at least 60 days before the filing
of a suit in any court of this state based upon a health care
liability claim. The notice must be accompanied by the
authorization form for release of protected health information
as required under Section 74.052.
      (b) In such pleadings as are subsequently filed in any
court, each party shall state that it has fully complied with
the provisions of this section and Section 74.052 and shall
provide such evidence thereof as the judge of the court may
require to determine if the provisions of this chapter have been
met.
      (c) Notice given as provided in this chapter shall toll
the applicable statute of limitations to and including a period
of 75 days following the giving of the notice, and this tolling
shall apply to all parties and potential parties.
      (d) All parties shall be entitled to obtain complete and
unaltered copies of the patient's medical records from any other
party within 45 days from the date of receipt of a written
request for such records; provided, however, that the receipt
of a medical authorization in the form required by Section
74.052 executed by the claimant herein shall be considered
compliance by the claimant with this subsection.
      (e) For the purposes of this section, and notwithstanding
Chapter 159, Occupations Code, or any other law, a request for
the medical records of a deceased person or a person who is
incompetent shall be deemed to be valid if accompanied by an
authorization in the form required by Section 74.052 signed by a
parent, spouse, or adult child of the deceased or incompetent
person.

Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept.
1, 2003.
APPENDIX 3
      Sec. 74.052. AUTHORIZATION FORM FOR RELEASE OF PROTECTED
HEALTH INFORMATION. (a) Notice of a health care claim under
Section 74.051 must be accompanied by a medical authorization in
the form specified by this section. Failure to provide this
authorization along with the notice of health care claim shall
abate all further proceedings against the physician or health
care provider receiving the notice until 60 days following
receipt by the physician or health care provider of the required
authorization.
      (b) If the authorization required by this section is
modified or revoked, the physician or health care provider to
whom the authorization has been given shall have the option to
abate all further proceedings until 60 days following receipt of
a replacement authorization that must comply with the form
specified by this section.
      (c) The medical authorization required by this section
shall be in the following form and shall be construed in
accordance with the "Standards for Privacy of Individually
Identifiable Health Information" (45 C.F.R. Parts 160 and 164).
 AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION

      A. I, __________ (name of patient or authorized
representative), hereby authorize __________ (name of physician
or other health care provider to whom the notice of health care
claim is directed) to obtain and disclose (within the parameters
set out below) the protected health information described below
for the following specific purposes:
           1. To facilitate the investigation and evaluation of
the health care claim described in the accompanying Notice of
Health Care Claim; or
           2. Defense of any litigation arising out of the claim
made the basis of the accompanying Notice of Health Care Claim.
      B. The health information to be obtained, used, or
disclosed extends to and includes the verbal as well as the
written and is specifically described as follows:
           1. The health information in the custody of the
following physicians or health care providers who have examined,
evaluated, or treated __________ (patient) in connection with
the injuries alleged to have been sustained in connection with
the claim asserted in the accompanying Notice of Health Care
Claim. (Here list the name and current address of all treating
physicians or health care providers). This authorization shall
extend to any additional physicians or health care providers
that may in the future evaluate, examine, or treat __________
(patient) for injuries alleged in connection with the claim made
the basis of the attached Notice of Health Care Claim;
           2. The health information in the custody of the
following physicians or health care providers who have examined,
evaluated, or treated __________ (patient) during a period
commencing five years prior to the incident made the basis of
the accompanying Notice of Health Care Claim. (Here list the
name and current address of such physicians or health care
providers, if applicable.)
      C. Excluded Health Information--the following constitutes a
list of physicians or health care providers possessing health
care information concerning __________ (patient) to which this
authorization does not apply because I contend that such health
care information is not relevant to the damages being claimed or
to the physical, mental, or emotional condition of __________
(patient) arising out of the claim made the basis of the
accompanying Notice of Health Care Claim. (Here state "none" or
list the name of each physician or health care provider to whom
this authorization does not extend and the inclusive dates of
examination, evaluation, or treatment to be withheld from
disclosure.)
      D. The persons or class of persons to whom the health
information of __________ (patient) will be disclosed or who
will make use of said information are:
           1. Any and all physicians or health care providers
providing care or treatment to __________ (patient);
           2. Any liability insurance entity providing liability
insurance coverage or defense to any physician or health care
provider to whom Notice of Health Care Claim has been given with
regard to the care and treatment of __________ (patient);
           3. Any consulting or testifying experts employed by or
on behalf of __________ (name of physician or health care
provider to whom Notice of Health Care Claim has been given)
with regard to the matter set out in the Notice of Health Care
Claim accompanying this authorization;
           4. Any attorneys (including secretarial, clerical, or
paralegal staff) employed by or on behalf of __________ (name of
physician or health care provider to whom Notice of Health Care
Claim has been given) with regard to the matter set out in the
Notice of Health Care Claim accompanying this authorization;
           5. Any trier of the law or facts relating to any suit
filed seeking damages arising out of the medical care or
treatment of __________ (patient).
      E. This authorization shall expire upon resolution of the
claim asserted or at the conclusion of any litigation instituted
in connection with the subject matter of the Notice of Health
Care Claim accompanying this authorization, whichever occurs
sooner.
      F. I understand that, without exception, I have the right
to revoke this authorization in writing. I further understand
the consequence of any such revocation as set out in Section
74.052, Civil Practice and Remedies Code.
      G. I understand that the signing of this authorization is
not a condition for continued treatment, payment, enrollment, or
eligibility for health plan benefits.
      H. I understand that information used or disclosed pursuant
to this authorization may be subject to redisclosure by the
recipient and may no longer be protected by federal HIPAA
privacy regulations.
      Signature of Patient/Representative
      __________
      Date
     __________
     Name of Patient/Representative
     __________
     Description of Representative's Authority
     __________

Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept.
1, 2003.
APPENDIX 4
      Sec. 74.251. STATUTE OF LIMITATIONS ON HEALTH CARE
LIABILITY CLAIMS. (a) Notwithstanding any other law and
subject to Subsection (b), no health care liability claim may be
commenced unless the action is filed within two years from the
occurrence of the breach or tort or from the date the medical or
health care treatment that is the subject of 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.
      (b) A claimant must bring a health care liability claim
not later than 10 years after the date of the act or omission
that gives rise to the claim. This subsection is intended as a
statute of repose so that all claims must be brought within 10
years or they are time barred.

Added by Acts 2003, 78th Leg., ch. 204, Sec. 10.01, eff. Sept.
1, 2003.
