                                                                                                          ACCEPTED
          FILED                                                                                       13-15-00171-CV
IN THE 13TH COURT OF APPEALS                                                          THIRTEENTH COURT OF APPEALS
  CORPUS CHRISTI - EDINBURG                                                                  CORPUS CHRISTI, TEXAS
                                                                                                  7/7/2015 7:02:23 PM
                                                                                               CECILE FOY GSANGER
         7/7/15                                                                                                CLERK


CECILE FOY GSANGER, CLERK                 No. 13-15-00171-CV
BY DTello
        ______________________________________________________________________________
                                                                  RECEIVED IN
                                                               13th COURT OF APPEALS
                                                            CORPUS CHRISTI/EDINBURG, TEXAS
                               IN THE   THIRTEENTH COURT OF APPEALS
                                                                7/7/2015 7:02:23 PM
                                                                 CECILE FOY GSANGER
                                         CORPUS CHRISTI, TEXAS          Clerk
         __________________________________________________________________

                                        P. PALIVELA RAJU, M.D.

                                                 Appellant

                                                    v.

                                            DIANE JACKSON

                                       Appellee
         __________________________________________________________________

                  APPELLEE'S SURREPLY BRIEF FOR APPELLANT
         __________________________________________________________________

                            On Appeal from Cause No. 14-E-0190
                    In the 23rd District Court of Matagorda County, Texas
         __________________________________________________________________


        Alexander Forrest                                    Alan Kolodny
        State Bar No. 24065241                               State Bar No. 24056882
        FORREST & KOLODNY, L.L.P.                        FORREST & KOLODNY, L.L.P.
        1011 Augusta Drive, Suite 111                    1011 Augusta Drive, Suite 111
        Houston, Texas 77057-2035                        Houston, Texas 77057-2035
        (713) 532-4474                                   (713) 532-4474
        (713) 785-0597 - Facsimile                       (713) 785-0597 - Facsimile
        aforrest@fko-law.com                             akolodny@fko-law.com
                    IDENTITY OF PARTIES AND COUNSEL

       In accordance with TEX. R. APP. P. 38.1(a), the following is a complete list

of all parties to this appeal:

Plaintiff / Appellee                           Counsel for Plaintiff/Appellee

Diane Jackson                                 Mr. Alexander Forrest
                                              Mr. Alan Kolodny
                                              FORREST & KOLODNY, L.L.P.
                                              1011 Augusta Drive, Suite 111
                                              Houston, Texas 77057-2035
                                              (713) 532-4474 / (713) 785-0597 - Fax
                                              aforrest@fko-law.com

Defendant / Appellant                          Counsel for Defendant / Appellant

P. Palivela Raju, M.D.                         Mr. Gary Sommer
                                               Mr. James R. Boston, Jr.
                                               Boston & Hughes, P.C.
                                               8584 Katy Freeway, Suite 310
                                               Houston, TX 77024
                                               (713) 961-1122 / (713) 965-0883 – Fax
                                               gsommer@bostonhughes.com

                                 OTHER PARTIES

Co-Defendant Diagnostic Health Care Services d/b/a Onsite Balance Solutions

Trial Counsel                                   Appellate Counsel
Mr. Kevin O’Murphy                              Mr. David Lunningham
Law Office of Brian J. Judis                    Ms. Helena Venturini
9500 Arboretum Boulevard, Suite 145             Watson, Caraway, Midkipp &
Austin, Texas 78759                             Lunningham, LLP
(512) 502-6431                                  1600 Oil & Gas Building
(866) 489-7657 – (fax)                          309 W. 7th Street
Kevin.Murphy2@cna.com                            Fort Worth, Texas 76102
                                                (817) 870-1717 / (817) 338-4852 - fax
                                                dluningham@watsoncarraway.com


                                         ii
                          TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL………………………………………ii
TABLE OF CONTENTS……………………………………………………….iii-iv
INDEX OF AUTHORITIES…………………………………………………….v-vi
SUMMARY OF THE SURREPLY ARGUMENT………………………...……1-2
SURREPLY ARGUMENT……………………………………………………..3-11
 I.     Appellee Argument that Her Claim is Not a Healthcare Liability Claim
        Was Presented to the Trial Court and Was Preserved for Appellate
        Review

 II.    Appellee’s Claims May be Healthcare Liability Claims

 III.   Appellee Never Asserted that Res Ipsa Loquitur Avoids the
        Requirements of Chapter 74.

 IV.    Appellee’s Expert, Dr. Ravdel, is Qualified to Render an Opinion under
        Chapter 74 of the TMLA.
CONCLUSION…………………………………………………………………...12
CETFIFICATE OF COMPLIANCE……………………………………………...13
CERTIFICATE OF SERVICE……………………………………………………13




                                      iii
                         INDEX OF AUTHORITIES

Cases

Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873
(Tex.2001)………………………………………………………………………3, 8

Good Shepherd Medical Center-Linden, Inc. v. Twilley, 422 S.W.3d 782
(Tex. App. – Texarkana, Mar. 1, 2013, pet. denied)…………………………….1, 4


Ross v. St. Luke’s Episcopal Hosp., ___ S.W.3d ___, 58 Tex.Sup.Ct.J. 766, 2015
WL 2009744 (Tex. May 1, 2015)……………………………………2, 3, 4, 5, 6, 12


Statutes and Rules
Tex. Civ. Prac. & Rem Code, Chapter 74…………1,2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12

   References to Clerk’s Original Record are shown as (CR ______)
   References to Clerk’s Supp. Record are shown as (CR 1st Supp.____)




                                      iv
                SUMMARY OF THE SURREPLY ARGUMENT

      Appellee has always recognized the possibility that Appellee’s claim is a

healthcare liability claim, which is why Appellee timely filed a chapter 74 expert

report under the Texas Medical Liability Act (TMLA).              Despite Appellant’s

assertion that there is no basis for finding that Appellee’s claim is not a healthcare

liability claim, there are facts underlying Plaintiff’s case which should at least raise

the possibility, especially in an area of the law as contentious as safety claims

against healthcare providers.     This is an area of the law where Texas appellate

courts have historically issued conflicting, divided opinions. The locale of the

injury, or the mere fact that the injury occurred subsequent to Appellee receiving a

cohloic stimulation is not alone sufficient to trigger a chapter 74 claim under the

TMLA. Good Shepherd Medical Center-Linden, Inc. v. Twilley, 422 S.W.3d 782,

788 (Tex. App. – Texarkana, Mar. 1, 2013, pet. denied). The facts support a

finding that the chair at issue was not a necessary part of the medical procedure

provided. It was merely incidental to the medical testing, since the equipment used

to conduct the cohloic stimulation test was separate and independent from the chair

at issue in this case.    The use of the chair to support Appellee’s weight was,

therefore, incidental to Appellee’s medical testing in the same manner that a floor

is incidental to entering a doctor’s office. Just as a floor is necessary to support a

patient’s weight when performing an X-ray, so too is a chair. This rationale and

                                           1
reasoning here is similar to that applied by the Texas Supreme Court in Ross v. St.

Luke’s Episcopal Hospital, where the Court ruled that a plaintiff’s slip and fall at a

hospital while visiting a patient was not a health care liability claim under chapter

74 of the TMLA. See Ross v. St. Luke’s Episcopal Hosp., ___ S.W.3d ___, 58

Tex.Sup.Ct.J. 766, 2015 WL 2009744 (Tex. May 1, 2015). The Court held that it

was not a healthcare liability claim for the following reason:

      [B]ecause the record does not demonstrate a relationship between the safety
      standards she alleged the hospital breached – standards for maintaining the
      floor injside the loby exit doors – and the provision of health care, other than
      the location of the occurrence and the hospital’s status as a healthcare
      provider.” Id., at 1.

Therefore, the issue of whether Appellee’s claims are health care liability claims is

not as transparent as simple as Appellant asserts.

      If this Court finds that Appellee’s claims are health care liability claims,

Appellee has nonetheless satisfied the statutory requirements under chapter 74 of

the TMLA. While Appellee’s expert was unable to opine exactly how and why the

chair at issue failed to hold Appellee’s weight, there was no information upon

which any expert, ENT or not, could rely on in making such a determination.

Furthermore, the purpose of the expert report is not to explain exactly how the

injury occurred, but to merely (1) inform the defendant of the specific conduct

plaintiff has called into question and (2) provide a basis for the trial court to

conclude the claims have merit. Am. Transitional Care Ctrs. Of Tex., Inc. v.


                                          2
Palacios, 46 S.W.3d 873, 878 (Tex. 2001). Appellee’s medical expert report

meets the “objective good faith” standard for satisfying the statutory elements of

chapter 74 of the TMLA and accomplishing its purpose as set forth in Palacios.

Tex. Civ. Prac. & Rem. Code 74.351(l).

                           SURREPLY ARGUMENT

 I. Appellee’s Argument that Her Claim is Not a Healthcare Liability Claim Was
      Presented to the Trial Court and Was Preserved for Appellate Review


      Appellant is correct, and Appellee, does not deny, that Appellee’ filed its

petition as a healthcare liability claim. Nonetheless, Appellee believes under the

de novo standard or review there is an issue of law favoring a finding that

Appellee’s case is not a healthcare liability case, with particular emphasis on the

fact that no medical doctor was present in Appellee’s physician room at the time of

her injury, a time when her medical testing had ceased. As a result, the failure on

the part of Appellant is not so much grounded in the practice of medicine as the

failure to provide a safe premises and supervision for a non-physician third party

contractor to administer a health care related test. As Appellant is well aware, the

location of the occurrence and the physician’s status as a healthcare provider alone

is insufficient as a means of applying the Texas Medical Liability Act to an injury

which happens to occur on the premises of a healthcare provider. See Ross v. St.

Luke’s Episcopal Hosp., ___ S.W.3d ___, 58 Tex.Sup.Ct.J. 766, 2015 WL

                                         3
2009744 (Tex. May 1, 2015).          Furthermore, “[I]f every safety claim against a

health care provider were considered a health care liability claim, there would be

no need to analyse the nature of the acts or omissions which caused the alleged

injuries.” Twilley, 422 S.W.3d at 788.           Therefore, the question of whether

Appellee’s claim is a Healthcare Liability Claim is a legitimate issue to bring

before this court. This issue was preserved in Appellee’s Response to Appellant’s

objections to Appellee’s expert report (CR Supp. 18). In fact, at the hearing on

Appellant’s objections to Appellee’s chapter 74 expert report, Appellee states that

this case is not a healthcare liability claim as follows:


      Your Honor, this is a case about a Plaintiff, Ms. Jackson, going to her doctor
      for head and neck problems and leaving the premises with a knee injury and
      shoulder injury. It is atypical of medical malpractice claims in the sense that
      the injuries with which she left the office were not related to the treatment
      for which she entered the office. (CR Supp. 34).
Furthermore, the Judge’s order denying Appellant’s objections to Appellee’s

expert report does not explicitly deny the objections under chapter 74 of the HCLA

(CR Supp. 21).


      In Ross v. St. Luke’s Episcopal Hospital, the Texas Supreme Court recently

provided a seven part analysis for determining whether a claimant’s injuries at a

hospital or the office of a healthcare provider necessarily implicates the TMLA.

The factors are as follows:



                                            4
(1) Did the alleged negligence of the defendant occur in the course of the
    defendant’s performing tasks with the purpose of protecting patients from
    harm;

(2) Did the injuries occur in a place where patients might be during the time they
    were receiving care, so that the obligation of the provider to protect persons
    who require special, medical care was implicated;

(3) At the time of the injury was the claimant in the process of seeking or receiving
    health care;

(4) At the time of the injury was the claimant providing or assisting in providing
    healthcare;

(5) Is the alleged negligence based on safety standards arising from professional
    duties owed by the health care provider;

(6) Is an instrumentality was involved in the defendant’s alleged negligence, was it
    a type used in providing health care; or

(7) Did the alleged negligence occur in the course of the defendant’s taking action
    or failing to take action necessary to comply with the safety-related
    requirements set for health care providers by governmental or accrediting
    agencies? Ross, ___ S.W.3d ___, 58 Tex.Sup.Ct.J. 766, 2015 WL 2009744
    (Tex. May 1, 2015).


The record does not clearly show that the chair at issue in this case was for use by

patients, or for use in medical testing. Appellee has not had an opportunity to

inspect the chair, nor has Appellant provided any basis for Appellee to conclude

that the chair is necessarily implicated in vertigo testing. For example, what

exactly about the chair makes it a necessary and appurtenant part of vertigo

testing? A chair does not merely become a vertigo chair because someone chooses

to give it that name. For all Appellee knows, the chair may be no different that the
                                         5
chairs patients sit in when waiting in the lobby for their appointment. The chair

may not have even been proper for the testing for which it was used on the date

when Appellee was injured by it. With Appellant not in the room at the time the

medical procedure was being performed, Appellee has no way of knowing whether

Appellant had any authority in determining whether this particular chair would

even be used to perform medical testing on Appellee. Appellee doesn’t know

whether the chair at issue in this case was the type routinely used to treat patients

for vertigo, or whether Appellant used the chair for that purpose. Furthermore,

without the right to conduct discovery and inspect the chair, Appellee has no

evidence upon which to determine whether the chair was particularly suited to

providing for the safety of patients beyond that of any other chair used to support

the weight of patients, whether on the premises for medical treatment or not. Also,

the record does not demonstrate that the use of this chair was to comply with a

safety-related requirement set forth by a governmental or accrediting authority.

Simply put, for all Appellee knows, this chair is not the type of chair used in

providing healthcare, and without Appellant directing her to sit in the chair, or

present to perform the test, there is no reason to believe the chair was a necessary

component of the medical testing. In the same way as the slippery floor at St.

Luke’s Episcopal Hospital in Ross was merely incidental to a patient walking into

and out of a hospital for treatment, so too is a chair in a doctor’s office. Id.


                                          6
Without a chair to hold a patient’s weight, medical testing cannot be performed in

the same manner that a patient cannot be treated unless it has a floor on which to

enter the medical premises. The fact that a chair, like a floor, is incidental to the

later performance of more specialized procedures, like a “cohloic stimulation” test,

does not make it an integral element of treatment such that it becomes “equipment

or materials…particularly suited to providing for the safety of patients.” Id.


             II. Appellee’s Claims May be Healthcare Liability Claims


      For the reasons provided in Appellee’s Second Amended brief, Appellee’s

claim may be healthcare liability claims, which is why Appellee timely filed a

chapter 74 expert report. However, for the reasons cited above, Appellee believes

that her claims are not healthcare liability claims.


 III. Appellee Never Asserted that Res Ipsa Loquitur Avoids the Requirements of
                                   Chapter 74
      Appellee never asserted that pleading res ipsa loquitur is a way to eliminate

the procedural requirement for a sufficient expert report. For the reasons cited in

Appellee’s brief, Appellant’s Expert Report satisfies the statutory requirements of

chapter 74. Dr. Ravdel’s expert report provides that Appellant’s standard of care

under the facts of this case are two-fold: (1) to ensure that the medical office

equipment is properly maintained and in working order, and (2) to ensure that

balance testing is supervised by Appellant or some other qualified medical or
                                           7
nursing staff. Appellee’s argument is precisely that the facts of this case are so

simple and plain that any layman can look at the facts of this case and conclude, as

does Dr. Ravdel, that a chair should not collapse merely because a person is seated

in it. The fact that Appellant is asking this court to require an expert to explain the

exact procedures required to ensure that a basic chair does not collapse without any

right to discovery or right to inspect the medical chair, amounts to holding

Appellee to the standard of proof only imposed on Plaintiffs at summary judgment

proceedings, a standard that has been deemed improper by the Texas Supreme

Court as a test for determining the sufficiency of a chapter 74 expert report under

the TMLA. In Am. Transitional Care Ctrs. Of Tex., Inc. v. Palacios, the court

stated as follows:


      To avoid dismissal, a plaintiff need not present evidence in the report as if it
      were actually litigating the merits. The report can be informal in that the
      information in the report does not have to meet the same requirements as the
      evidence offered in a summary judgment proceeding or at trial.” 46 S.W.3d
      873, 875. (CR Supp. 17).
Appellant’s entire brief and response to Appellee’s brief amounts to improperly

asking this Court to require that Appellee litigate the merits of its case at the

earliest stage of the litigation, before Appellee has had a chance to engage in

discovery and inspect a chair which injured Appellee.             The questions that

Appellant looks to our expert to answer cannot be answered by any expert without

litigating the merits of the case.

                                          8
   IV. Appellee’s Expert, Dr. Ravdel, is Qualified to Render an Opinion under
                           Chapter 74 of the TMLA.
      A brief analysis of the facts of the lower court quickly reveals that the

relevant subject area for any expert attempting to qualify under chapter 74 of the

Texas Medical Liability Act (TMLA) is not any specific area of medical practice,

but the general standard of care any medical physician owes his patients as a

premises owner. As the owner of a medical practice, a physician owner must

ensure that his medical premises are sufficiently maintained and in working order

such that a chair does not collapse when a patient is merely seated in it. Given the

limited discovery rights of Appellee prior to Judge Hardin’s ruling on Appellant’s

Motion to Dismiss Pursuant to the TMLA, coupled with a factual backdrop where

Appellee was injured after merely being seated in a chair that could not hold her

weight, the “objective good faith effort” standard for determining whether an

expert report is statutorily compliant has clearly been met. Tex. Civ. Prac. & Rem.

Code 74.351(l). Appellant conveniently neglects to explain or even address how

an “objective good faith effort” has not been met by Appellant, choosing to lace his

arguments with grand conclusions without first assessing the threshold question of

whether Appellee has made an “objective good faith effort.” Id.          Simply put,

without a right to inspect the medical chair at issue in this case, and relying on the

medical records alone, there is absolutely nothing any expert, orthopedic or not,

could use to form an opinion that effectively states exactly what about the chair at

                                          9
issue in this case is defective. The Court should, therefore, find that Appellee

submitted a medical expert report in compliance with Tex. Civ. Prac. & Rem. Code

74.351(b).

      V.     Appellee’s Expert Report Satisfies the Chapter 74 Standard of Care
                                       Requirement

      Dr. Ravdel’s expert report provides that Appellant’s standard of care under

the facts of this case are two-fold: (1) to ensure that the medical office equipment

is properly maintained and in working order, and (2) to ensure that balance testing

is supervised by Appellant or some other qualified medical or nursing staff. (CR

33)

      Appellee’s expert report provided by Dr. Ravdel meets the “objective good

faith effort” test for satisfying the Section 74.351(b) statutory requirement for

sufficiency of an expert report based on the limited discovery rights available to

Appellee and given the factual backdrop where Appellee was injured by a medical

chair that did not hold her weight.

      Appellant’s response to Appellee’s brief completely ignores the “objective

good faith effort” test provided by the TMLA on whether an expert report

sufficiently satisfies the statutory requirements. Section 74.351(l) of the Tex. Civ.

Prac. & Rem. Code provides:

      A court shall grant a motion challenging the adequacy of an expert report
      only if it appears to the court, after hearing, that the report does not represent

                                          10
      an objective good faith effort to comply with the definition of an expert
      report in Subsection (r)(6).

Whether an “objective good faith effort” has been made by Appellee depends on

what information Appellee’s medical expert relied on in reaching an opinion.

Plaintiff's expert gives a fair summary of the standard of care given what is known

about Plaintiff's injury and the simplistic facts and circumstances leading to

Plaintiff's injury. The facts of each individual case control the detail required in

the expert report, as the standard is whether the plaintiff has made an "objective

good faith effort" to meet the statutory requirement. See Tex. Civ. Prac. & Rem.

Code §74.351(l). This analysis necessarily varies depending on the facts of each

particular case. The qualifications of the medical staff supervising Plaintiff and the

maintenance history of the chair are not known at this time. Nothing is known

about the design or condition of the chair except for facts and inferences drawn

from medical records. Given Appellee’s limited discovery rights at this early stage

in the litigation, Appellee has limited tools available to acquire greater information.

Therefore, Appellee has used its best efforts and acted in good faith under these

facts to comply with the statutory requirements of the Texas Medical Liability Act.

                                   CONCLUSION

      The Texas Supreme Court requires an analysis into the gravamen of the

claim in order to determine if the claim is a health care liability claim subject to the


                                          11
Texas Medical Liability Act, Chapter 74 of the Texas Civil Practice and Remedies

Code. In this case, the gravamen of the claim is the proper maintenance and repair

of a chair. The simple fact that an injury occurred on a health care providers

premises is not enough to make it subject to the Texas Medical Liability Act.

Appellee maintains that her claim is not a health care liability claim and therefore

not subject to the chapter 74 expert report requirement. However, Appellee also

acknowledges the fact that under the new Texas Supreme Court’s seven factor test

in Ross, the possibility remains that Appellee’s case may be a healthcare liability

claim under chapter 74. For that reason, Appellee timely filed a proper expert

report that meets the statutory requirements set forth by chapter 74 of the TMLA

for the reasons provided herein.




                                             Respectfully Submitted,

                                             /s/ Alexander Forrest
                                             _______________________
                                             Alexander Forrest
                                             SBOT: 24065241
                                             Forrest & Kolodny, LLP
                                             1011 Augusta Dr., Ste. 111
                                             Houston, TX 77057
                                             Tel: (713) 598-0339
                                             Fax: (713) 785-0597




                                        12
                        CERTIFICATE OF COMPLIANCE

     I certify that this Appellee’s Surreply Brief was prepared with Microsoft
Word 2010, and that, according to that program’s word-count function, the
sections covered by Texas Rule of Appellate Procedure 9.4(i)(1) contain 3,527
words.


                                                   /s/ Alexander Forrest
                                                   _________________________
                                                   ALEXANDER FORREST




                         CERTIFICATE OF SERVICE

       In accordance with Rule 9.5(e) of the Texas Rules of Appellate Procedure, I
certify that a copy of Appellant’s 2nd Amended Brief was served on Plaintiff’s
counsel by electronic service through e-filing on this July 7, 2015.


    Garry Sommer
    James R. Boston, Jr.
    Boston & Hughes, P.C.
    8584 Katy Freeway, Suite 310
    Houston, Texas 77057
    Telephone: (713) 961-1122
    gsommer@bostonhughes.com
    jboston@bostonhughes.com

                                                   /s/ Alexander Forrest
                                                   _________________________
                                                   ALEXANDER FORREST




                                        13
