                                                                                           ACCEPTED
                                                                                      13-14-00418-CV
                                                                        THIRTEENTH COURT OF APPEALS
                                                                              CORPUS CHRISTI, TEXAS
                                                                                 2/19/2015 9:28:16 AM
                                                                                     DORIAN RAMIREZ
                                                                                               CLERK

                                  NO. 13-14-00418-CV
                                IN THE
                     THIRTEENTH COURT OF APPEALS FILED IN
                                               13th COURT OF APPEALS
                         CORPUS CHRISTI, TEXAS
                                            CORPUS CHRISTI/EDINBURG, TEXAS
                                                        2/19/2015 9:28:16 AM
                                                         DORIAN E. RAMIREZ
                                                                Clerk
BRET JOHNSTON, INDIVIDUALLY
AND AS THE PERSONAL
REPRESENTATIVE OF THE ESTATE
OF KAREN JOHNSTON,                                                   Appellants

vs.
CHRISTUS SPOHN HEALTH
SYSTEM CORPORATION D/ B/ A
CHRISTUS SPOHN HOSPITAL
BEEVILLE,                                                            Appellee

                       Appealed from the 36th District Court
                               Bee County, Texas
                          Cause No. B-11-1434-CV-A-1
                      Honorable Starr Bauer, Presiding Judge

                   OPENING BRIEF OF APPELLANTS,
                   BRET JOHNSTON, INDIVIDUALLY
                AND AS THE PERSONAL REPRESENTATIVE
                 OF THE ESTATE OF KAREN JOHNSTON


N orman R. Ladd
T exas State Bar N o. 24041 285
Kevin G. G iddens
Texas State Bar N o. 2407 6877
235 South Broadway, Suite 200
Tyler, T exas 75702
(903) 705-7211
(903) 705-7221 (FAX)
ATTO RNEYS FO R APPELLANTS

                       ORAL ARGUMENT REQUESTED
                IDENTITY OF PARTIES AND COUNSEL

     THE FOLLOWING IS A LIST OF ALL PARTIES TO THE TRIAL
COURT'S ORDER APPEALED FROM, AND THE NAME AND ADDRESSES
OF ALL TRIAL AND APPELLATE COUNSEL:

    1.   APPELLANTS~PLAINTIFFS
                           ARE BRET JOHNSTON, INDIVIDUALLY
         AND AS THE PERSONAL REPRESENTATIVE OF THE ESTATE
         KAREN JOHNSTON.

    2. TRIAL AND APPELLATE COUNSEL FOR APPELLANTS~PLAINTIFFS
       BRET JOHNSTON, INDIVIDUALLY AND AS THE PERSONAL
       REPRESENTATIVE OF THE ESTATE KAREN JOHNSTON IS LADD
       & THIGPEN, PC, NORMAN R. LADD, III, AND KEVIN GIDDENS,
       235 S. BROADWAY, SUITE 200, TYLER, TEXAS 75702.

    3.   APPELLEE~DEFENDANT  IS   CHRISTUS  SPOHN     SYSTEM
         CORPORATION D/B/A CHRISTUS SPOHN HOSPITAL BEEVILLE.

    4. TRIAL AND APPELLATE COUNSEL FOR APPELLEE~DEFENDANT
       IS NAMAN, HOWELL, SMITH & LEE, PLLC, RICHARD A.
       MCNITZKY, 10001 REUNION PLACE, SUITE 600, SAN ANTONIO,
       TEXAS 78216.




                                 11
                                                          TABLE OF CONTENTS

                                                                                                                                                                PAGE
IDENTITY O F PARTIES AND COUNSEL ....... .. ........ ...... .... ....... ....... .. .......... ....... .. ..... .... ....... ...... .. ii


TABLE O F CONTENTS ...... ...... ..... ........ .. ....... ... .... .. ......... .. ...... .... .. ....... ...... .... ..... ...... ... ....... ........ .... iii


INDEX OF AUTHO RITIES ... ......... .... ....... ........ ... ...... ........... .. .............. ....... ... ........ ..... ... .... .... .... .... ... v


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


ISSUES PRESENTED ........ ....................... .. ..... .... .... .... ....... .. .. .... .. .... ......... ... ...... .. ..... .............. .. .... ...... 3


STATEMENT O F FACTS .. .. ......... .. .. ... ......... ... ... .......... ........... .................... .... .... ... ... ........ .. ................ 4


SUMMARY OF THE ARGUMENT ........ .. ...... ............. ....... .. ...... ... ............................. ... ....... ............. 5


ARGUMENT ........................ ........... ...... ..... .. ....... .... .......... ......... ................ .... .. .......... .. ..................... ...6


I. Standard of Review .... ...... ............... ...... ...................... .... .. .... .... .... .. .... ...... ...... ........ ............ .......... .... 6


II. ISSUE NO. 1                   Whether the Trial Court Abused its Discretion in Granting Appellee's N o-

                                   Evidence Motion for Summary Judgment ....... .... .... .......................... .. .. ...... .. .. .. 6


SUB-ISSUE N O . 1 Whether Appellant presented a scintilla of evidence as to Appellee's

                                   negligent credentialing... .. ..... ... ........... ... ... ...... ....... ..... .. ..... .. ...... ........ .. .. .... ......... 6


         A               The Trial Court abused its discretion in finding that Appellant presented no

                         evidence as to Appellee acting with malice during the credentialing of Dr. Dirkson

                         and Dr. Zamora .. .... ...... .... ....... ..... .. ... .... .. ... .. ..... ....... .... ....... ... ... .. ..... ... .. ..... ........ .......... 6


SUB-ISSUE N O. 2 Whether Appellant presented a scintilla of evidence as to Appellee being

                                   responsible under Respondeat Superior. .. .... ........................ .... ........ .. ........ .. .... .9

                                                                                    111
         A               The Trial Court did abuse its discretion in finding that Appellant presented no

                         evidence as to an ostensible agency between Hospital and Dr. Dirkson and Dr.

                         Zamora .......................................................................................................................... 9


III. ISSUE NO. 2                  Whether the Trial Court Abused its Discretion in Granting Appellee's

                                   Objection to Appellant's Summary Judgment Evidence ................................. 11


SUB-ISSUE NO . 1 Whether Appellant presented competent summary judgment evidence .... .. .. 11


         A               The Trial Court abused its discretion in excluding Dr. Rushing's Deposition .. ... .. 11


CON CLUSION ................................................ ... .. ....... ... ... ...... .......... ................................................ 12


PRAYER .......... ... .. .. .. ....... ................... .......... ........ .. ............................................ ...... ............ ........... .... 13


CERTIFICATE OF SERVICE ........................................................................................................... 14


CERTIFICATE OF COMPLIANCE ................................................................................................. 15


MAY 14, 2014, ORDER .. .... ................................ ... ...... ...... .. ..... ...... ... .. ... .. ............. .... ....... .Appendix 1




                                                                                 lV
                                    INDEX OF AUTHORITIES

                                                                                                        PAGE


Cases

Dangerfield v. Ormsby,

        264 S.W.3d 904, 912 (Tex.App.-Fort Worth 2008, no pet.) .................... ....... 7

Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623-29 (Tex.2002) ........................................ 12

Garland Cmty. Hasp. v. Rose, 156 S.W.3d 541, 545-46 (Tex.2004) ......................... 7, 12

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006) ...................................... 6

Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex.1985) .......................................... 7

Renaissance Healthcare Sys., Inc. v. Swan,

        343 S.W.3d 571, 583 (Tex.App.-Beaumont 2011, no pet.) ............................ 9

Romero v. KPH ConsoL, Inc., 166 S.W.3d 212, 214 (Tex. 2005) ................................... 7

Tenet Health Ltd. v. Zamora,

        13 S.W.3d 464, 472 (Tex. App.-Corpus Christi 2000, pet. dism'd w.o.j.) ...... 9

Tex. Civ. Prac. & Rem. Code § 41.00 1...................... .............. .................................... 7




                                                       v
                                 STATEMENT OF THE CASE 1

        This is an appeal of a no-evidence summary judgment in a health care liability

claim. Appellants Bret Johnston, Individually and as the Personal Representative of

The Estate of Karen Johnston, ("JOHNSTON") filed suit against Appellee Christus

Spohn Health System Corporation d/b/a Christus Spohn Hospital Beeville

("HOSPITAL"). 1 CR 1-2.                  Factually, Karen Johnston was a patient in the

HOSPTIAL emergency room September 15 and 18, 2009.                              1 CR 1. On the first

emergency room visit, Mrs. Johnston was examined by Dr. Kenzer Dirkson. Id. On

a second visit to the emergency room, Mrs. Johnston was examined by Dr. Jose

Zamora. Id. Ultimately, Mrs. Johnston died on September 22, 2009. 1 CR 2.

        JOHNSTON asserts a direct liability claim against HOSPITAL that it was

negligent in the hiring, supervision, retention, and control of emergency room

physicians Dirkson and Zamora ("negligent credentialing"). 1 CR 2. Additionally,

JOHNSTON asserts that physicians Dirkson and Zamora were agents, employees, or

servants of HOSPITAL such that HOSPITAL should be held vicariously liable for

these physicians' actions. 1 CR 2.




1
 " _ CR _ "refers to the volume and page of the Clerk's Record. "1 CR _"refers to the Original Clerks Record,
"2 CR _"refers to the Supplemental Clerk' s Record, and "3 CR _" refers to the Corrected Second Supplemental
Clerk's Record. "_ RR _ "refers to the volume and page of the transcribed hearing in the Reporter's Record.
                                                      1
      On March 26, 2014, HOSPITAL filed a no-evidence summary judgment

against JOHNSTON. On April 28, 2014, JOHNSTON filed a timely response to

HOSPITAL'S no-evidence summary judgment. 3 CR 17.

      On May 7, 2014, the 36th Judicial District Court granted HOSPITAL'S no-

evidence summary judgment against JOHNSTON.            On May 14, 2014, the 36th

Judicial District Court signed the order granting HOSPITAL'S no-evidence

summary judgment against JOHNSTON. 1 CR 128-129. This order also excluded

the deposition of Lige B. Rushing, Jr., M.D., M.S., P.A. 1 CR 128.

      On May 8, 2014, JOHNSTON filed their motion for reconsideration. 1 CR

77-116. On June 12, 2014, the 36th Judicial District Court held a telephonic hearing

on JOHNSTON'S motion for reconsideration. 1 RR 1. On July 16, 2014, the 36th

Judicial District Court denied JOHNSTON'S motion for reconsideration.         1 CR

126-27.

      On July 11, 2014, JOHNSTON timely perfected this appeal. 1 CR 115-17.

On November 24, 2014, JOHNSTON filed their First Amended Notice of Appeal

clarifying the cause number after HOSPITAL'S Motion for Severance was signed on

July 21, 2014. 2 CR 1-3, 1 CR 121.




                                          2
                            ISSUES PRESENTED

     Did the trial court err in granting Christus Spohn Health System

Corporation d/b/a Christus Spohn Hospital Beeville's No-Evidence Motion for

Summary Judgment?

           Did the trial court err in concluding that Bret Johnston, Individually

           and as the Personal Representative of The Estate of Karen Johnston,

           presented no evidence in response to the no-evidence summary

           judgment?

           Did the trial court err 1n excluding the deposition of Lige B.

           Rushing, Jr., M.D., M.S., P.A.?




                                       3
                            STATEMENT OF FACTS

I.    Mrs. Johnston is Treated by Hospital Emergency Room

      On September 15, 2009, Karen Johnston, an immune~suppressed patient,

presented herself to Christus Spohn Health System Corporation d/b/a Christus

Spohn Hospital Beeville's ("HOSPITAL") emergency room and was examined by

Defendant Dr. Kenzer Dirkson.       1 CR 1.    Mrs. Johnston exhibited signs of a

developing infection, but no chest x~ray or blood count was ordered. Id.

      On September 18, 2009, Mrs. Johnston presented herself again to

HOSPITAL'S emergency room and was examined by Defendant Dr. Jose Zamora.

Id. Mrs. Johnston again exhibited signs of a developing infection, confirmed by the

chest x~ray and blood count. 3 CR 6. Yet, Defendant Zamora failed to admit Mrs.

Johnston.   3 CR 6.     Mrs. Johnston died on September 22, 2009, of bacterial

pneumonia. 3 CR 7.

II.   Johnston File a Health Care Liability Claim against Hospital

      Appellants Bret Johnston, Individually and as the Personal Representative of

The Estate of Karen Johnston, ("JOHNSTON") filed this suit on September 19,

2011, alleging negligence against HOSPITAL through respondeat superior that

HOSPITAL is liable for the actions of Defendants Dirkson and Zamora and

negligent hiring, supervision, retention and control of Defendants Dirkson and

                                          4
Zamora. 1 CR 2. Additionally, JOHNSTON asserts that physicians Dirkson and

Zamora were agents, employees, or servants of HOSPITAL such that HOSPITAL

should be held vicariously liable for these physicians' actions. Id.

                         SUMMARY OF THE ARGUMENT

      The trial court's May 14, 2014, order granting H OS PITAL' s no-evidence

summary judgment should be reversed.             JOHNSTON presented evidence of

negligent credentialing.     There is no dispute that evidence was presented of

extremely low care provided by two (2) emergency room doctors on two (2)

difference occasions. Both doctors completely misdiagnosed Karen Johnston despite

clear indicators of pneumonia. Furthermore, it is undisputed that one (1) doctor,

Dr. Jose Zamora, had been previously involved in numerous lawsuits involving

patient care.

      JOHNSTON also presented evidence that HOSPITAL is responsible under

respondeat superior. Based on the testimony and belief of JOHNSTON, there is a

question of fact as to whether the emergency room doctors could be considered

agents of HOSPITAL

       The trial court also excluded the deposition of Lige B. Rushing, Jr., M.D.,

M.S., P.A., despite his testimony being both relevant and reliable.

       The trial court's May 14, 2014, order should be reversed.

                                            5
                                 ARGUMENT


I.    Standard of Review

      The court reviews a no-evidence summary judgment by reviewing the evidence

presented by the motion and response in the light most favorable to the party

against whom the summary judgment was rendered, crediting evidence favorable to

that party if reasonable jurors could, and disregarding contrary evidence unless

reasonable jurors could not.   Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582

(Tex. 2006).

II. ISSUE NO. 1   Whether the Trial Court Abused its Discretion in Granting
                  Appellee's No-Evidence Motion for Summary Judgment.

SUB-ISSUE NO. I Whether Appellant presented a scintilla of evidence as to
                Appellee's negligent credentialing.

      A. The Trial Court abused its discretion in finding that Appellant
         presented no evidence as to Appellee acting with malice during the
         credentialing of Dr. Dirkson and Dr. Zamora.

      An employer is liable for negligent hiring, supervision, or retention when

proof is presented the employer hired an incompetent or unfit employee whom it

knew or, by the exercise of reasonable care, should have known was incompetent or

unfit, thereby creating an unreasonable risk of harm to others. See Dangerfield v.

Ormsby, 264 S.W.3d 904, 912 (Tex.App.-Fort Worth 2008, no pet.).



                                        6
      A finding of negligent credentialing also requires evidence of the defendant

acting with malice. Romero v. KPH ConsoL. Inc., 166 S.W.3d 212, 214 (Tex. 2005).

Malice is defined as "a specific intent by the defendant to cause substantial injury or

harm to claimant." Tex. Civ. Prac. & Rem. Code § 41.001. Specific intent means

that the actor desires to cause the consequences of his act, or that he believes the

consequences are substantially certain to result from it. Reed Too[ Co. v. Copdin, 689

S.W.2d 404, 406 (Tex.l985).

Both Doctors' Consistent Misdiagnoses Questions Hospital's Credentialing

       Negligent credentialing cannot exist without questioning the health care

rendered to patients.     Garbnd Cmty. Hasp. v. Rose, 156 S.W.3d 541, 545-46

(Tex.2004). Thus it is necessary to review the level of care provided in a health care

case. Id.

       On two (2) separate occasions, both Dr. Kenzer Dirkson and Dr. Jose Zamora

failed to properly execute tests indicating Karen Johnston's underlying pneumonia.

Evidence was presented by Appellant through deposition testimony of Lige B.

Rushing, Jr., M.D., M.S., P.A., that since Mrs. Johnston was immunosuppressed Dr.

Dirkson should have performed a chest x~ray and blood count on September 15,

2009. 3 CR 52. No such tests were performed by Dr. Dirkson. Id.




                                           7
      Furthermore, deposition testimony of Dr.. Rushing was presented by

Appellant that Dr. Zamora improperly interpreted or failed to read the tests

performed on September 18, 2009. 3 CR 45, 47. The radiology report presented

indicates "diffuse predominantly interstitial process bilaterally consistent with

extensive pneumonitis." 3 CR 109. Dr. Zamora testified that he is not familiar with

the term "pneumonitis." 3 CR 140.

      Dr. Rushing further testified that Dr. Zamora's decision to not admit Mrs.

Johnston to the hospital ultimately allowed the pneumonia to spread. 3 CR 4 7.

Overall, concern regarding HOSPITAL'S credentialing is raised when two (2)

doctors   both   misdiagnose    an   immunosuppressed       patient symptomatic       for

pneumoma on two (2) different occastons.          The range of below standard care

included no simple tests ordered by Dr. Dirkson and a complete misreading of a

clear radiology report by Dr. Zamora.

Dr. Zamora's Admitted History Questions Hospital's Credentialing

      In reviewing the credentialing process of a hospital, a claimant may refer to

the treating physician's history of disciplinary issues. See Renaissance Healthcare Sys.,

Inc. v. Swan, 343 S.W.3d 571, 583 (Tex.App.-Beaumont 2011, no pet.).

      JOHNSTON presented evidence of Dr. Zamora's disciplinary issues prior to

being credentialed for privileges by HOSPITAL Dr. Zamora also testified that prior

                                            8
to being credentialed for privileges by HOSPITAL he had five (5) lawsuits with at

least three (3) resulting in monetary settlement. 3 CR 128,30. Dr. Zamora testified

that these violations of patient care were reported to the National Practitioner Data

Bank. 3 CR 130. Congress established the National Practitioner Data Bank for the

purpose of improving the quality of medical care by encouraging physicians to

identify and discipline other physicians who are incompetent or who engage m

unprofessional behavior.   Tenet Health Ltd. v. Zamora, 13 S.W.3d 464, 472 (Tex.

App.-Corpus Christi 2000, pet. dism'd w.o.j.).

      HOSPITAL knew or should have known the incidents reported to the

National Practitioner Data Bank.         Deposition testimony of Barbara Dake,

HOSPITAL'S Direct or Medical Staff Services, was presented that HOSPITAL runs

the National Practitioner Databank for all physicians applying for credentialing. 3

CR 207.

      As a whole, evidence was presented that HOSPITAL knew or should have

known that consequences such as the misdiagnosis and mistreatment of Mrs.

Johnston would happen base on Dr. Zamora's patient care history.

SUB,JSSUE NO.2 Whether Appellant presented a scintilla of evidence as to
              Appellee being responsible under Respondeat Superior.

      A. The Trial Court did abuse its discretion in finding that Appellant
         presented no evidence as to an ostensible agency between Hospital and
         Dr. Dirkson and Dr. Zamora.
                                          9
         A Plaintiffs claim for a hospital's liability for an independent contractor's

medical malpractice based on ostensible agency must show: 1) Plaintiff had a

reasonable belief that the physician was the agent or employee of the hospital; 2)

Plaintiffs belief was generated by the hospital affirmatively holding out the physician

as its agent or employee or knowingly permitting the physician to hold himself out

as the hospital's agent or employee; and 3) Plaintiff justifiably relied on the

representation of authority. See Baptist Memorial Has . Sys., 969 S.W.2d 945, 949 (Tex.

1998).

Appellant Reasonably Believed Emergency Room Doctors were Agents

         Bret Johnston testified that he was under the impression that HOSPITAL'S

emergency room physicians were not independent contractors.             Mr. Johnston

testified that he had never read any statement that HOSPITAL physicians were

independent contracts. 3 CR 250. Furthermore, it was reasonable for Mr. Johnston

to assume that physicians that appeared to have the ability to order x~rays and admit

patients were employees or agents of HOSPITAL Thus, reviewing the evidence in

the best light to JOHNSTON, there is a scintilla of evidence that the emergency

room physicians were agents of HOSPITAL

Hospital Exercised Control over Emergency Doctors

                                           10
          Doctor Zamora also testified that HOSPITAL had the right to control the

means, methods, and details of his work because HOSPITAL limited his treatment

plan and options by not allowing him to admit patients without approval.

Defendant Zamora testifies that his emergency room credentialing did not include

the ability to admit patients, as he would need another physician to authorize

admittance on behalf of HOSPITAL            3 CR 122.     This information was never

disclosed to JOHNSTON, showing a lack of discernable independent contractor

status.

III. ISSUE NO.2 Whether the Trial Court Abused its Discretion in Granting
                Appellee's Objection to Appellant's Summary Judgment
                Evidence.

SUB-ISSUE NO. 1 Whether Appellant presented competent summary judgment
               evidence.

          A. The Trial Court abused its discretion 1n excluding Dr. Rushing's
             Deposition.

          The order signed by the trial court excludes the deposition testimony of Lige

B. Rushing, Jr., M.D., M.S., P.A. 1 CR 128. Appellee argued that Dr. Rushing's

testimony is not relevant or reliable.     1 CR 2 7.   For an expert's testimony to be

admissible under Texas Rule of Evidence 702, the expert must be qualified, and the

expert's opinion must be relevant to the issues in the case and based upon a reliable

foundation. Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623-29 (Tex.2002).

                                            11
      As discussed above, the actual health care given must be reviewed in a

negligent credentialing case. Rose, 156 S.W.3d at 546. Dr. Rushing testifies as to

the extremely low standard of care provided by both Dr. Dirkson and Dr. Zamora. 3

CR 52, 45, 47. The deposition of Dr. Rushing is highly relevant against HOSPITAL

because it specifically outlines the underlying poor health care provided by two (2)

doctors credentialed by HOSPITAL Thus the trial court abused its discretion by

excluding the deposition of Dr. Rushing from JOHNSTON'S response to

HOSPITAL'S no-evidence summary judgment.

                                 CONCLUSION

      JOHNSTON presented a scintilla of evidence in response to Appellee's no-

evidence summary judgment on issues of negligent credentialing and respondent

superior. A scintilla of evidence was presented for negligent credentialing through

the admitted previous malpractice of Dr. Zamora, the testimony of Barbara Dake

showing that Appellee reviews such reports, and the astonishingly poor care

provided by two (2) emergency room physicians on two (2) occasions. A scintilla of

evidence was presented for respondeat superior through the testimony of Bret

Johnston and his understanding of the role of emergency room doctors working at

Appellee.   Furthermore, the trial court abused its discretion in excluding the

deposition of Dr. Rushing from Appellant's summary judgment evidence.

                                         12
                                      PRAYER

      For these reasons, Appellants, Bret Johnston, Individually and as the Personal

Representative of The Estate of Karen Johnston, respectfully request that this Court:

(1) reverse the trial court's May 14, 2014, order granting Appellee Christus Spohn

Health System Corporation D/B/A Christus Spohn Hospital Beeville's no-evidence

summary judgment. Appellants,· Bret Johnston, Individually and as the Personal

Representative of The Estate of Karen Johnston, further respectfully request that this

Court grant Appellants any and all other relief to which they may be entitled.

                                               Signature on Next Page


                                               Respectfully submitted,


                                               LADD & THIGPEN, P.C.



                                               Norman R. Ladd
                                               Texas State Bar No. 24041285
                                               Kevin G. Giddens
                                               Texas State Bar No. 24076877
                                               235 South Broadway, Suite 200
                                               Tyler, Texas 75702
                                               (903) 705-7211
                                               (903) 705-7221 (FAX)

                                               ATTORNEYS FOR APPELLANTS




                                          13
                          CERTIFICATE OF SERVICE

      I hereby certify that on this the 19th day of February, 2015, a true and correct

copy of the foregoing, First Amended Brief of Appdlants, was duly served via the

following:


Mr. Richard A. McNitzky                 D      Messenger
HOWELL, SMITH & LEE, PLLC
10001 REUNION PLACE                     D       Facsimile
SUITE 600
(210) 731-6339                          D       Certified Mail - RRR
(210) 785-2911 (Fax)
                                        D       First Class Mail
Counsel for CHRISTUS Spohn
Health System Corporation d/b/a D              Via Overnight
CHRISTUS Spohn Hospital Beeville
                                       ~       Via E-Service




                                                       ~
                                                    Kevm G. Giddens




                                          14
                      CERTIFICATE OF COMPLIANCE

      Appellees, Bret Johnston, Individually and as the Personal Representative of

The Estate of Karen Johnston, state that there are 3,168 words contained in

Appellant's Brief. In determining the word count, counsel for Appellants relies on

the word count stated on the bottom ruler in his Microsoft Word document.




                                             Respectfully submitted,


                                             LADD & THIGPEN, P.C.



                                             Norman R. Ladd
                                             Texas State Bar No. 24041285
                                             Kevin G. Giddens
                                             Texas State Bar No. 24076877
                                             235 South Broadway, Suite 200
                                             Tyler, Texas 75702
                                             (903) 705-7211
                                             (903) 705-7221 (FAX)

                                             ATTORNEYS FOR APPELLANTS




                                        15
MAY 14, 2014, ORDER




     Appendix 1
                                               Cause No.   8-ll-1434 - CV- .~.


 BRET JOHNSTON and The                                       §            !N THE DISTRICT COURT
 Estate of KAREN JOHNSTON                                    §
         Pla intiffs
                                                             §
 V.                                                          §            OF BEE COUNTY, TEXAS
                                                             §
 JOSE L. ZAMORA, M.D.,                                       §
 KENZER DIRKSON, M .D.,                                      §
 CHRISTUS SPOHN HEALTH SYSTEM                                §
 CORPORATION d/b/a CHRISTUS SPOHN                            §
 HOSPiTAL BEEVILLE and                                       §
 BEEVILLE ANGEL CARE AI\~BULANCE                             §
 SERViCE, INC.                                               §
        Defendants                                           §              36TH JUDICiAL DISTRICT



 . ORDER ON DEFENDANT CJ:IJ3J.~JUS SPOHf'(H;.A.~I.~.. ~.Y.H~M.-~Q.BJ?.PRATION D/B/A CHRISTUS
      SPOHN HOSPITAL B~.~.VIllE'S OBJECTIONS TO SUMMARY JUDGMENT E\(.~p_;N.~~..AN..P.
                                   SUMMARY JUDGMEN"J:


           On the              i4\;J-- day       nLa····"
                                             of ..                           2014,   came   on for consideration

 Defendant CHRISTUS Spohn Health System Corporation d/b/a CHRISTUS Spohn Hospital

 Beeville's No Evidence Motion for Summary Judgment,                   and prior to consideration of the Motion

 for Summary Judgment, the Court took under consideration Defendant's Objections to

 Plaintiffs' Summary Judgment Evidence . The Court, after reviewing said objections to Plaintiffs'

 Summary Judgment Evidence, is of the following op!nion:

 Ex. A- Ruling by Appellate CotJrt- Defendant's objections are                   ~OVERRULED;

 Ex.     B               Dr.    Rushing's    Supplemental        Report          Defendant's     objections   are
c.D/OVERRULED;

 Ex. C - Deposition Testimony of lige B. Ru:;hing. Jr., M.D. - Defendant's objections are
~/OVERRULED; and



 {02S15224 .DOCX /   l
                                                            128
...,s.:




                ··· Texas   Med ical Board History of D~ fend a nt Z<:~ rn o ra - Defe nd,3nt's objections are
          ---===:-.....


                It is, therefore, ORDERED, that the summary judgment evider.ce to which objections are

      susta ined above is excluded f1om consideration in connection with Plaintiffs' Response to

      Defendant's No Evidence Motion for Summary Judgment.

                Further, after considering Defendant's No Evidence Motion fer Sumrnary Judgment,

      Plaintiffs'   Response to Defendant's No                    Evidence Motion for             Summarv   Judgment and

      Defendant's Objections to Plaintiffs' Summary Judgment Evidence and Reply to Plaintiffs'

      Response to i\!o Evidence Motion for Summary Judgment, the Court finds that Defendant's

      Motion for Summary Judgment should be ln all t hings GRANTED.

                It is, therefore, further ORDERED, that Defendant's No Evidence Motion for Summary

      Judgment is GRANTED.



                S!GNE D this _   _}£_day        of .. ········- ·-··:············ ---- · - - - - ' 2014.




                                           ~~FILED: ~~'-~
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                                          at m
                                          Zenaida Sitva
                                                        -
                                                           o'clock _D._
                                                                     T
                                                                          at Be   .   Texas



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