                                                                                   ACCEPTED
                                                                                 01-14-00984
                                                                    FIRST COURT OF APPEALS
                                                                            HOUSTON, TEXAS
                                                                        3/20/2015 11:38:59 AM
                                                                          CHRISTOPHER PRINE
                                                                                       CLERK

                         NO. 01-14-00984-CV

                   IN THE COURT OF APPEALS FOR THE        FILED IN
                                                    1st COURT OF APPEALS
                 FIRST DISTRICT OF TEXAS AT HOUSTON     HOUSTON, TEXAS
              _____________________________________
                                                  3/20/2015 11:38:59 AM
                                                       CHRISTOPHER A. PRINE
                         TIFFANY THOMAS                       Clerk
                                      Appellant,
                                v.

      T. JAYAKUMAR, M.D., FIRST STREET HOSPITAL, LLC
             AND FIRST SURGICAL PARTNERS, LLC,
                                         Appellees.
    ________________________________________________________

             On Appeal from the 334th Judicial District Court
                         Harris County, Texas
                  Trial Court Cause No. 2014-22071
    ________________________________________________________

           BRIEF OF APPELLEE, T. JAYAKUMAR, M.D.
    ________________________________________________________

                                SMITH ADAMS LAW FEEHAN LLP
                                Michael C. Feehan
                                State Bar No. 06873300
                                Mike@SmithAdamsLaw.com
                                Stephanie A. Sanders
                                State Bar No. 24055315
                                Stephanie@SmithAdamsLaw.com
                                1415 Louisiana Street, Suite 3800
                                Houston, Texas 77002-7360
                                P: (713) 652-3200
                                F: (713) 652-6000
                                ATTORNEYS FOR APPELLEE
                                T. JAYAKUMAR, M.D.

Oral Argument requested pursuant to Local Rule 7 and Tex. R. App. P. 39
       only should Appellant request/be granted Oral Argument
                 IDENTITY OF PARTIES AND COUNSEL

APPELLANT/PLAINTIFF:

     Tiffany Thomas


     Counsel:             Jorge Borunda
                          State Bar No. 24027205
                          jborunda@radacklaw.com
                          Michael Trevino
                          State Bar No. 24070762
                          mtrevino@radacklaw.com
                          Orjanel Lewis
                          State Bar No. 24083667
                          olewis@radacklaw.com
                          RADACK AND BORUNDA, P.C.
                          1345 Campbell, Suite 220
                          Houston, Texas 77055
                          P: (713) 795-8000
                          F: (877) 234-4982


APPELLEES/DEFENDANTS:

     T. Jayakumar, M.D.

     Counsel:             Mike C. Feehan
                          State Bar No. 06873300
                          mike@smithadamslaw.com
                          Stephanie A. Sanders
                          State Bar No. 24055315
                          stephanie@smithadamslaw.com
                          SMITH ADAMS LAW FEEHAN LLP
                          1415 Louisiana, Suite 3800
                          Houston, Texas 77002
                          P: (713) 652-3200
                          F: (713) 652-6000



                                 ii
     First Street Hospital, LLC and First Surgical Partners, LLC

     Counsel:                 David Luningham
                              State Bar No: 12698850
                              dlluningham@watsoncaraway.com
                              Helena Venturini
                              State Bar No.: 24065082
                              hventurini@watsoncaraway.com
                              WATSON, CARAWAY, MIDKIFF & LUNINGHAM, LLP
                              1600 Oil & Gas Building
                              309 West 7th Street
                              Fort Worth, TX 76102
                              P: (817) 870-1717
                              F: (817) 338-4842

TRIAL JUDGE:

     Honorable Grant Dorfman
     334th Judicial District Court
     201 Caroline, 14th Floor
     Houston, Texas 77002




                                     iii
                                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL........................................................ ii

REFERENCES TO THE PARTIES .................................................................... vi

REFERENCES TO THE RECORD .................................................................... vi

INDEX OF AUTHORITIES ......................................................................... vii, viii

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

STATEMENT REGARDING ORAL ARGUMENT ........................................ xii

RESPONSE TO ISSUES PRESENTED FOR REVIEW ................................ xiii

I. STATEMENT OF FACTS AND PROCEDURAL HISTORY ......................1

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

III. ARGUMENT AND AUTHORITIES ............................................................7

   A. STANDARD OF REVIEW.....................................................................................7
   B. DEFENDANT HAS CONCLUSIVELY ESTABLISHED THE AFFIRMATIVE
      DEFENSE OF STATUTE OF LIMITATIONS ............................................................8
   C. OPEN COURTS CHALLENGES IN HEALTH CARE LIABILITY CLAIMS ................10

   D. PLAINTIFF FAILED TO MEET HER BURDEN TO DEMONSTRATE PRIMA FACIE
      CASE FOR APPLICATION OF THE OPEN COURTS PROVISION ............................12
       1. Plaintiff’s Affidavit Shows on its Face that Her Claim is Barred ........... 12

       2. Plaintiff Failed to Raise a Fact Issue with Respect to the
          Applicability of the Open Courts Provision .............................................14
               a. Lack of financial resources ............................................................15
               b. No requirement to investigate fact of injury ..................................16
               c. Frivolous litigation .........................................................................20
                                                      iv
IV. CONCLUSION .............................................................................................22

V. PAYER ............................................................................................................23

CERTIFICATE OF COMPLIANCE ..................................................................24

CERTIFICATE OF SERVICE ............................................................................25

APPENDIX .............................................................................................................26




                                                           v
                      REFERENCES TO THE PARTIES


      Reference                                    Meaning

      Appellant/Plaintiff/(“Thomas”)               Tiffany Thomas

      Appellee/Defendant/(“Jayakumar”)             T. Jayakumar, M.D.




                      REFERENCES TO THE RECORD

      The record in this appeal consists of the Clerks Record and First Supplemental

Clerk’s Record. This Brief uses the following conventions in citing the record:

      Original Clerks Record                  “CR. (page)”

      1st Supplemental Clerks Record          “CR.Supp. (page)”




                                         vi
                                       INDEX OF AUTHORITIES
TEXAS CONSTITUTION:

TEX. CONST., ART. I, § 13 .......................................................................... 5, 10, 13

STATUTES:

TEX. CIV. PRAC. & REM. CODE § 74.051 (c) .........................................................2
TEX. CIV. PRAC. & REM. CODE § 74.251..................................................... passim
TEX. CIV. PRAC. & REM. CODE § 74.251 (b) ...................................................... 13

RULES:

TEX. R. APP. P. 9.4................................................................................................ 24
TEX. R. APP. P. 9.7................................................................................................ xi
TEX. R. APP. P. 38................................................................................................. ix
TEX. R. APP. P. 38.1...............................................................................................5
TEX. R. APP. P. 38.2............................................................................................ 26
TEX. R. APP. P. 39.................................................................................................. i
TEX. R. APP. P. 39.1 ........................................................................................... xii
TEX. R. APP. P. 39.2 ........................................................................................... xii
TEX. R. APP. P. 39.7 ........................................................................................... xii

CASES:

Adkins v. Tafel, .................................................................................................. 18
      871 S.W.2d 289 (Tex. App.─Fort Worth 1994, no writ)
Bala v. Maxwell, ..................................................................................................9
      909 S.W.2d 889 (Tex. 1995)
Borderlon v. Peck, ...................................................................................... 14, 17
      661 S.W.2d 907 (Tex. 1983)
Citizens First. Nat'l Bank v. Cinco Explorations, ............................................. 7
      540 S.W.2d 292 (Tex. 1976)
City of Houston v. Clear Creek Basin Authority, ..............................................7
      589 S.W.2d 671 (Tex. 1979)
Cooper v. D&D G.C. of Gilmer, Inc., ................................................................. 8
      187 S.W.3d 717 (Tex.App.─Tyler 2006, no pet.)
Delgado v. Burns, ................................................................................................7
      656 S.W.2d 428 (Tex. 1983)

                                                           vii
Desiga v. Scheffey, ............................................................................................ 11
      874 S.W.2d 244 (Tex.App.─Houston [14th Dist.] 1994, no writ)
Diamond v. Eighth Ave. 92, L.C., ......................................................................8
      105 S.W.3d 691 (Tex.App.─Fort Worth 2003, no pet.)
Gale v. Lucio, ............................................................................................ 5, 7, 16
      445 S.W.3d 849 (Tex.App.─Houston [1st Dist.] 2014, pet. filed)
HECI Exploration Co. v. Neel, ........................................................................ 10
      982 S.W.2d 881 (Tex. 1998)
Mendoza v. Murphy, ........................................................................................ 11
      532 F.3d. 342 (5th Cir. 2008)
Moreno v. Sterling Drug, Inc., .................................................................. 14, 17
      787 S.W.2d 348 (Tex. 1990)
Morrison v. Chan, ...............................................................................................9
      699 S.W.2d 205 (Tex. 1985)
Natividad v. Alexsis, Inc., ...................................................................................7
      875 S.W.2d 695 (Tex. 1994)
Neagle v. Nelson, .............................................................................................. 11
      685 S.W.2d 11 (Tex. 1985)
O’Reilly v. Wiseman, ............................................................................ 11, 12, 20
      107 S.W.3d 699 (Tex.App.─Austin 2003, pet. denied)
Provident Life & Accident Ins. Co. v. Knott, .................................................... 7
      128 S.W.3d 211 (Tex. 2003)
Sax v. Votteler, .................................................................................................. 11
      648 S.W.2d 661 (Tex. 1983)
Shah v. Moss, .................................................................................................. 7, 8
      67 S.W.3d 836 (Tex. 2001)
Stockton v. Offenbach, ..................................................................................... 11
      336 S.W.3d 610 (Tex. 2011)
Tenet Hosps. Ltd. v. Rivera, .................................................................. 13, 15, 22
      445 S.W.3d 698 (Tex. 2014)
Thompson v. Pate, ............................................................................................ 11
      69 S.W.3d 743 (Tex.App.─El Paso 2002, no pet.)
Walters v. Cleveland Reg’l Med Ctr., .............................................................. 21
      307 S.W.3d 292 (Tex. 2010)
Wheeler v. Methodist Hosp., ...............................................................................5
      95 S.W.3d 628 (Tex.App.─Houston [1st Dist.] 2002, no pet. h.)
Winston v. Peterek,...............................................................................................8
      132 S.W.3d 204 (Tex.App.─Houston [14th Dist.] 2004, pet. denied)
Yancy v. United Surgical Ptnrs. Int’l, Inc., .............................. 7, 10, 11, 12, 15
      236 S.W.3d 778 (Tex. 2007)
                                                           viii
TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:

      Appellee, T. Jayakumar, M.D., respectfully submits this brief in accordance

with TEX. R. APP. P. 38 and all Local Rules of this Court in support of the affirmance

of the trial court’s decision granting Appellee’s Motion for Summary Judgment on

the grounds that Plaintiff-Appellant’s health care liability claim is time-barred by

the applicable statute of limitations, § 74.251, Texas Civil Practice and Remedies

Code. In support of affirming the trial court’s judgment, Appellee would respectfully

show the Court as follows:

                              STATEMENT OF THE CASE

Nature of the Case:

      This is a health care liability claim involving care and treatment received by

Plaintiff, Tiffany Thomas (“Thomas”), in connection with gastric bypass surgery at

First Street Hospital on November 14, 2011.

      This appeal arises from Summary Judgment granted in favor of Appellees, T.

Jayakumar, M.D. (“Jayakumar”) and First Street Hospital and First Street Surgical

Partners, LLC (hereinafter, collectively “First Street”), on the affirmative defense of

statute of limitations. As Appellant failed to raise a fact question with respect to the

applicability of the Open Courts provision, summary judgment was properly

granted.




                                           ix
Course of Proceedings:

          On April 21, 2014, Thomas filed her health care liability claim in the 334th

District Court of Harris County, Texas. (CR. 4). Defendants first received a notice

of the claim and medical authorization pursuant to Chapter 74.051 and 74.052 on

February 20, 2014. (CR. 60) On May 29, 2014, Jayakumar filed his Original Answer

and Jury Demand. (CR.Supp. 3, 11)

Trial Court Disposition:

          On June 13, 2014, Jayakumar filed his Motion for Summary Judgment based

on the medical liability statute of limitations affirmative defense. (CR. 21) On June

16, 2014, Thomas filed her First Amended Petition, and for the first time pled the

discovery rule and the Open Courts provision of the Texas Constitution. (CR. 35)

Thomas filed her Response to Appellees’ Motions for Summary Judgment on

August 22, 2014. (CR. 67) Judge Dorfman granted Jayakumar and First Street’s

Motions for Summary Judgment, dismissing Thomas’ claims with prejudice, and

issued a detailed opinion and order dated October 29, 2014.1 (CR. 170)

          On December 1, 2014, Plaintiff filed her Notice of Appeal. (CR. 177)

Joinder and Adoption by Reference:

          In addition to the Arguments and Authorities set forth below in this Brief of

Appellee, Jayakumar joins and adopts by reference the Arguments and Authorities


1
    A copy of the Order is attached to Appellee’s Brief as Appendix Tab 1.
                                                  x
submitted on behalf of Appellees, First Street Hospital, LLC and First Surgical

Partners, LLC, pursuant to Texas Rule of Appellate Procedure 9.7.




                                       xi
                    STATEMENT REGARDING ORAL ARGUMENT

      Appellee, Jayakumar, believes that the law controlling this case is well-

established, and that briefing the Court on the issues presented suffices to support an

affirmance of the trial court’s judgment. However, to the extent that Appellant

requests and is granted oral argument, and to the extent the Court finds that

consideration of the issues presented by this appeal may be assisted or advanced by

the presence of Appellee’s counsel before the Court to comment upon the issues and

to respond to the Court’s inquiries, then oral argument is requested. TEX. R. APP. P.

39.1, 39.2, 39.7.




                                          xii
             RESPONSE TO ISSUES PRESENTED FOR REVIEW

      Section 74.251 of the Texas Civil Practice and Remedies Code declares that

no health care liability claim may be brought unless the action is filed within two

years from the occurrence of the tort. It is not disputed that Plaintiffs’ health care

liability claim was not timely filed. This Court should affirm the trial court’s

judgment granting Appellee’s Motion for Summary Judgment for the following

reasons:

      1. Jayakumar met his Summary Judgment burden to conclusively
           establish the affirmative defense of statute of limitations.

      2. The Open Courts provision of the Texas Constitution does not bar
           the application of the statute of limitations in this case.

              a. Thomas has not suffered an Open Courts violation pursuant
                 to the applicable two year statute of limitations of § 74.251,
                 Texas Civil Practice and Remedies Code. Thomas had a CT
                 scan 11 to 12 months prior to the expiration of the statute of
                 limitations, which revealed the presence of the foreign object
                 (silastic tubing) allegedly left in Thomas’ peritoneal cavity.
                 Thomas was informed of the CT scan results.

              b. Thomas has not raised a fact issue that she did not have
                 reasonable opportunity to discover the alleged wrong and
                 bring suit before the limitations period.




                                            xiii
          I. STATEMENT OF FACTS AND PROCEDURAL HISTORY

      In 2001, Thomas underwent lap band surgery, which was performed by non-

parties to this suit. During that surgery, the foreign object subject to the present suit

(silastic tubing), was intentionally left in her peritoneal cavity. (CR. 37) Thomas is

not alleging any negligence on the part of Appellees arising out of the 2001 surgery

that placed the tubing in her abdominal cavity. (CR. 171)

      On November 14, 2011, Thomas was admitted to First Street Hospital for

gastric bypass surgery. Defendant, Jayakumar, performed a laparoscopic takedown

of gastric band, laparoscopic adhesiolysis, laparoscopic Roux-en-Y gastric bypass,

laparoscopic hiatal hernia repair, and an Upper GI endoscopy on Thomas on that

date, and she was released from the hospital on November 15, 2011. (CR. 6)

      Thomas returned to Jayakumar for follow-up visits on November 30, 2011

and December 22, 2011. (CR. 6) During her final encounter with Jayakumar on

December 22, 2011, Thomas alleges that she reported some abdominal pain to

Jayakumar but he did not perform any additional examination to locate the cause of

the pain. (CR. 6)

      Throughout 2012, Thomas alleges she continued to feel intermittent

abdominal pain but she did not seek any additional treatment from any healthcare

provider, including Jayakumar. (CR. 6)
       On December 6, 2012, Thomas claims she began to experience more severe

abdominal pain and presented to the emergency room at Houston Northwest Medical

Center (not a party to this suit), where a CT scan revealed the presence of a foreign

body that had been left in Thomas’ peritoneal cavity, during the 2001 lap band

surgery performed by non-parties. (CR. 37, CR. 82, ¶1) These findings were

disclosed to Thomas, and it was recommended that she seek a surgeon to have the

object removed. (CR. 82, ¶1) Thomas elected not to remove the object at that time.

(CR. 82, ¶1)

       In December 2012, after being informed by Houston Northwest Medical

Center ER personnel that the tubing was responsible for her symptoms and should

be removed, Thomas retained her attorneys. 2 (CR. 82, ¶2, CR. 172, ¶10)

       After the December 6, 2012 CT scan at Houston Northwest Medical Center,

Thomas delayed over sixteen (16) months and filed her Original Petition on

April 21, 2014. (CR. 4)

       On February 20, 2014, Thomas sent her statutorily required, but untimely,

notice of health care liability claim. 3


2
  December 2012 was 11-12 months prior to the expiration of the statute of limitations for any
health care liability claim against Appellees arising from the surgery at First Street Hospital on
November 14, 2011.
3
  Plaintiff sent her notice of health care liability claim more than 90 days after the two-year statute
of limitations had expired, and accordingly, the 75-day tolling period set forth at § 74.051 (c) of
the Texas Civil Practice and Remedies Code was not applicable. (CR. 60) Regardless, even if
notice had been timely served, it would only have extended limitations until January 29, 2014 (e.g.,
2 years and 75 days after Plaintiff’s November 14, 2011 surgery). Id.
                                                  2
         Jayakumar filed his Original Answer on May 29, 2014, asserting that

Plaintiff’s claims and causes of action were barred by the applicable statute of

limitations. (CR.Supp. 9, §XIX)

         On June 13, 2014, Jayakumar filed his Motion for Summary Judgment based

on limitations. TEX. CIV. PRAC. & REM. CODE § 74.251. (CR. 21)

         Three days later, on June 16, 2014, Thomas filed her First Amended Petition,

and for the first time pled the discovery rule and the Open Courts provision of

the Texas Constitution. (CR. 35)

         On August 22, 2014, Thomas filed her Response to Appellee’ Motions for

Summary Judgment, which included the Affidavit of Plaintiff Tiffany Thomas.4

(CR. 67, CR. 82)

         On October 29, 2014, summary judgment was granted in favor of Appellees

on limitations. (CR. 170)

         On December 1, 2014, Thomas filed her Notice of Appeal. (CR. 177)




4
    A copy of the Affidavit is attached to Appellee’s Brief as Appendix Tab 2.
                                                  3
                      II.    SUMMARY OF THE ARGUMENT

       The important dates for purposes of limitations in this case are as follows:

              Date of Gastric Bypass Surgery:              November 14, 2011

              Date of Discharge:                           November 15, 2011

              Latest Possible Date for Calculating December 22, 2011
              Statute of Limitations 5:

              Date Foreign Object Discovered               December 6, 2012

              Thomas Retained Counsel                      December 2012

              Limitations Expired 6:                       December 22, 2013

              Notice of Claim and Authorization:           February 20, 2014

              Original Petition Filed:                     April 21, 2014

       The trial court properly granted summary judgment for Jayakumar based on

Thomas’ failure to file her Original Petition within the applicable two-year statute

of limitations.7 Based on the timeline of events, as set forth above, the trial court




5
  The date of Jayakumar’s final follow-up visit and contact with Thomas is December 22, 2011.
(CR. 170)
6
  Jayakumar does not admit that December 22, 2011 is the date that the statute of limitations
expired. Plaintiff’s Original Petition vaguely suggests that the date of potential negligence is
November 14, 2011, the date of her gastric bypass surgery. (CR. 6). However, affording Plaintiff
the latest possible accrual date for purposes of this brief only, Dr. Jayakumar assumes arguendo
December 22, 2011, the date of his final follow-up visit and contact with Thomas is the latest
possible expiration date under Chapter 74’s two-year statute of limitations.
7
  Appendix A, Tab 1.
                                               4
correctly found that, “there is no fact question here presented whether Plaintiff knew

her injury, and its cause, before limitations had run.” (CR. 173, ¶10)

       Thomas has not challenged the trial court’s finding that the Original Petition

was filed outside the two-year statute of limitations period.8 Accordingly, any

argument on this issue is waived on appeal. TEX. R. APP. P. 38.1(h); see also Wheeler

v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex. App. – Houston [1st Dist.] 2002, no

pet. h.).

       Thomas contends that, under the circumstances of her case and the course of

her medical treatment, application of the statute to bar her claims would violate the

Open Courts provision in Article I §13 of the Texas Constitution. In the context of

the Open Courts challenge to § 74.251, this Court has squarely found that citing to

numerous medical tests and procedures and further investigation by counsel are

insufficient reasons and no explanation as to how a plaintiff did not have reasonable

opportunity to discover a medical injury. Gale v. Lucio, 445 S.W.3d 849, 855 (Tex.

App.─Houston [1st Dist.] 2014, pet. filed) (reversing denial of summary judgment

on limitations and further rejecting Open Courts challenge to § 74.251 on the

grounds that CT scan with results were shared with decedent, so she had sufficient




8
  Thomas admits in her Brief that “…the lawsuit was filed more than two years after the date of
injury.” [Appellant’s Br. at 6]
                                              5
information to bring a claim, but decedent and wrongful death claimant did not bring

suit until more than three years later).

      Thomas’ appeal and her as-applied Open Courts challenge effectively asks

this Court for a result that would render meaningless the statute of limitations set

forth in § 74.251, TEX. CIV. PRAC. & REM. CODE. Under the facts of this case, there

is no violation of the Open Courts doctrine by the trial court in having dismissed

Thomas’ claims with prejudice based on the statute of limitations.

      In addition, Thomas failed to raise a fact question with respect to the

applicability of the Open Courts guarantee. As detailed below, Thomas’ injury was

not inherently undiscoverable – and was actually discovered well in advance of the

expiration of the statute of limitations. Furthermore, the discovery rule cited by

Thomas is no longer viable under § 74.251. Although Thomas cites reasons for her

delay in filing suit, which one might find sympathetic, none of her reasons (lack of

insurance; lack of funds; loss of job; and/or, choosing to get the foreign object

extracted prior to filing suit to confirm it was actually the silastic tubing suspected)

lead to the legal conclusion that she did not have reasonable opportunity to discover

the injury or in any way faced an impossible condition prior to the expiration of

limitations.

      The Texas Supreme Court has been clear that an Open Courts challenge does

not serve to strike down § 74.251 as applied under circumstances akin to Thomas’


                                           6
case, and sometimes involving even less delay that that of Thomas. Stockton v.

Offenbach, 336 S.W.3d 610, 617-18 (Tex. 2011); Shah v. Moss, 61 S.W.3d 836, 847

(Tex. 2001); Yancy v. United Surgical Ptnrs. Int'l, Inc., 236 S.W.3d 778, 785 (Tex.

2007). This Court has recently rejected similar arguments as well. Gale v. Lucio,

445 S.W.3d 849 (Tex. App.─Houston [1st Dist.] 2014, pet. filed).

      Therefore, Jayakumar respectfully moves this Court to affirm the judgment in

his favor granting Defendant's Motion for Summary Judgment and dismissing all of

Thomas’ claims with prejudice because her claims are barred as a matter of law.

                  III.   ARGUMENT AND AUTHORITIES

A.    STANDARD OF REVIEW
      As a question of law, a trial court’s ruling on a motion for summary judgment

is reviewed de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).

On appeal from a “traditional” summary judgment, the issue is whether the movant

established, as a matter of law, entitlement to summary judgment by conclusively

proving that no genuine issue of material fact exists as to his cause of action or

defense. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex. 1983); citing City of Houston

v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979). A defendant

moving for summary judgment on the affirmative defense of limitations has the

burden to conclusively establish that defense, including the accrual date of the

cause of action. Citizens First. Nat'l Bank v. Cinco Explorations, 540 S.W.2d 292,

294 (Tex. 1976); see also Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d

                                        7
211, 220 (Tex. 2003). If the movant establishes that the statute of limitations bars

the action, the non-movant must then adduce summary judgment proof raising a fact

issue in avoidance of the statute of limitations. See, e.g., Diamond v. Eighth Ave. 92,

L.C., 105 S.W.3d 691, 695 (Tex.App.─Fort Worth 2003, no pet.); Cooper v. D&D

G.C. of Gilmer, Inc., 187 S.W.3d 717, 720 (Tex.App.─Tyler 2006, no pet.). In the

summary judgment context, the burden is on the plaintiff asserting an Open Courts

exception to the statute of limitations to raise a fact issue demonstrating that she did

not have a reasonable opportunity to discover the alleged wrong and bring suit before

the limitations period expired. Walters v. Cleveland Reg’l Med Ctr., 307 S.W.3d

292, 295 (Tex. 2010).

B.    DEFENDANT HAS CONCLUSIVELY ESTABLISHED                      THE   AFFIRMATIVE
      DEFENSE OF STATUTE OF LIMITATIONS

      The legislature has spoken: “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.” Tex. Civ. Prac. &

Rem. Code § 74.251. That statute bars Plaintiff’s claim.

      The period of limitations set forth in this statute runs from one of three

events: (1) [the] occurrence of the breach or tort; (2) [the] date that the relevant

course of treatment was completed; or (3) [the] last date of the relevant

hospitalization. Winston v. Peterek, 132 S.W.3d 204, 207 (Tex.App.─Houston [14th

Dist.] 2004, pet. denied). See also Shah, 67 S.W.3d at 841. The statute imposes
                                           8
an absolute two-year statute of limitations regardless of when an injured party

learns of the injuries. See Morrison v. Chan, 699 S.W.2d 205, 208 (Tex. 1985)

(emphasis added). Although the statute specifies three dates from which the

limitations period may run, a plaintiff cannot simply choose any of these dates. Bala

v. Maxwell, 909 S.W.2d 889, 891 (Tex. 1995). Thomas’ surgery was on November

14, 2011 and she was discharged from First Street on November 15, 2011. Dr.

Jayakumar did not provide any additional medical care to Thomas after December

22, 2011.

         Given the facts of the case at hand, the statute of limitations started to accrue

on November 14, 2011, the date of Thomas’ gastric bypass surgery at First Street

Hospital. That would allow Plaintiff two years within which to either file suit or

serve a notice letter thereby extending the statute of limitations for another 75

days. Plaintiff did not file suit on or before November 14, 2013, nor did any

Defendant receive a notice of claim letter within that time period 9.

         Assuming Plaintiff alleges some continuing negligence by Dr. Jayakumar, in

the course of care through the last post-surgical follow-up office visit on December

22, 2011, her case would still be barred by limitations. Under a continuing course of

treatment argument, the statute of limitations would not have expired until December




9
    Plaintiff did not send Notice of Claim and Authorization until February 20, 2014. (CR. 60)
                                                  9
22, 2013. Plaintiff neither filed suit on or before December 22, 2013, nor sent a

notice letter within that time period.

      Plaintiff did not file her Original Petition until April 21, 2014. (CR. 4)

Plaintiff’s claims are, therefore, barred by limitations as a matter of law.

C.     OPEN COURTS CHALLENGES IN HEALTH CARE LIABILITY CLAIMS

      Plaintiff does not contend that her health care liability claim was not timely

filed. [Appellant’s Br. at 6] Rather, Thomas contends that, under the circumstances

of her case and the course of her medical treatment, application of the statute to bar

her claims would violate the Open Courts provision in Article I §13 of the Texas

Constitution.10 (CR. 70) That section provides that: “All courts shall be open, and

every person for every injury done him, and his lands, goods, personal reputation

shall have remedy by due course of law.” Id.

       The Open Courts guarantee operates quite differently from a tolling provision.

Yancy v. United Surgical Partners lnt’l, 236 S.W.3d 778, 784 (Tex. 2007). Tolling

provisions generally defer accrual of a claim until the plaintiff knew, or in the

exercise of reasonable diligence should have known, the facts giving rise to the

claim. Id. (citing HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998)).

By contrast, “the Open Courts provision merely gives litigants a reasonable time to



10
   Importantly, Thomas does not allege any negligence by Defendants arising out of the 2001
surgery that placed the “catheter silastic tubing” in her abdominal cavity.
                                            10
discover their injuries and file suit," and courts must determine what constitutes a

reasonable time frame. Id. In short, an Open Courts challenge is a due process

complaint and requires the party to use due diligence. Id. at 785. Procedurally, the

party raising the Open Courts challenge “must raise ‘a fact issue establishing that he

did not have a reasonable opportunity’ to be heard.” Stockton v. Offenbach, 336

S.W.3d 610, 618 (Tex. 2011) (quoting Yancy, 236 S.W.3d at 785).

      The courts have used the Open Courts provision to avoid a harsh result in

medical malpractice cases in which it is not possible for a Plaintiff to discover the

injury or wrong within the two year limitations period. Sax v. Votteler, 648 S.W.2d

661 (Tex. 1983) (emphasis added); Neagle v. Nelson, 685 S.W.2d 11 (Tex. 1985);

see also, Thompson v. Pate, 69 S.W.3d 743, 744 (Tex. App.−El Paso 2002, no pet.)

(Open Courts guarantee provides “narrow exception” to statute of limitations).

      Even so, the Open Courts provision applies only if it would be impossible or

exceedingly difficult to discover the injury within the limitations period. O’Reilly v.

Wiseman, 107 S.W.3d 699, 702 (Tex. App.−Austin 2003, pet. denied). The Court

should not interpose the test of the traditional discovery rule and the open courts

doctrine; otherwise, the Court would defeat the clear purpose of the legislature when

it enacted the specific statute of limitations for medical malpractice cases. Desiga v.

Scheffey, 874 S.W.2d 244, 249 (Tex. App.−Houston [14th Dist.] 1994, no writ).

“The open courts defense is not a discovery rule.” Id. at 252; Mendoza v. Murphy,


                                          11
532 F.3d. 342 (5th Cir. 2008) (applying Texas law) (open courts provision more

restrictive than discovery rule); see also Yancy, 236 S.W.3d at 784 (Court discusses

difference between discovery rule and Open Courts provision). The question before

the Court is whether it was impossible or exceedingly difficult for Thomas to know

the fact of her injury within the statute of limitations, not whether she knew or should

have known she had a claim. See TEX. CIV. PRAC. & REM. CODE § 74.251 and

O’Reilly v. Wiseman, 107 S.W.3d 699 (Tex. App.−Austin 2003, pet. denied).

Thomas cannot meet that burden.

D.    PLAINTIFF FAILED TO MEET HER BURDEN TO DEMONSTRATE PRIMA FACIE
      CASE FOR APPLICATION OF THE OPEN COURTS PROVISION

      1. Plaintiff’s Affidavit Shows on its Face that Her Claim is Time-barred

      In this case, Thomas had a reasonable chance to discover her injury within the

limitations period for several reasons. First, Thomas’ own affidavit, dated August

21, 2014, states:

      In December 2012, after suffering severe pain, I went to Houston North
      West Medical Center. At the hospital, the doctors found that there was
      a foreign object in my abdominal cavity. I was informed by the doctors
      that I should seek a surgeon to remove the foreign object; however, I
      had no medical insurance to cover the cost of surgery.

(CR 82, ¶1) Thomas waited almost a year until she saw another physician to address

this known foreign object in her abdomen. And on February 24, 2014, after almost

sixteen (16) months of experiencing pain in the same location in her body, she had



                                          12
the foreign object removed. (CR 82, ¶12) These facts, alone, are sufficient to

establish that Thomas knew of the injury in December 2012.

        Additionally, in December 2012, the same month she was told by doctors at

Houston Northwest Hospital about the foreign object in her peritoneal cavity,

Plaintiff admits in her affidavit that she retained her current counsel, Radack &

Associates, P.C. (CR 82, ¶2). In the recently decided Texas Supreme Court case of

Tenet Hospitals Ltd. v. Rivera, involving a minor’s Chapter 74 healthcare liability

claim, the Court analyzed a statute of limitations challenge under the open courts

provision and the statute of repose. Rivera, 445 S.W.3d 698, 703-04 (Tex. 2014).11

In evaluating the guardian’s diligence in discovering the minor’s injuries and filing

suit, the Court considered the fact that the guardian/claimant hired a lawyer to send

pre-suit notice of the claim two years before the repose statute barred it in concluding

that the absence of due diligence barred her claim. Id. Here, Thomas demonstrated

knowledge of her claim when she hired counsel in December 2012, 11-12 months

before the statute of limitations expired. However, similar to the facts in the Rivera




11
   Ten-year statute of repose for the Medical Liability Act did not violate open courts provision as
applied to mother, who brought action as next friend of her child against hospital and physician
for medical negligence, arising from emergency cesarean section allegedly resulting in child's
permanent neurological injury and disability, where an attorney sent the hospital and physician the
statutorily required notice of child's health care liability claim two years before the statute of repose
barred it, but then waited over six-and-a-half years to file suit. Tex. Const. art 1, § 13; V.T.C.A.,
Civil Practice & Remedies Code § 74.251(b).
                                                   13
case, counsel for Thomas did not send a notice letter thereby extending the statute

of limitations, or file suit timely.

       2.     Plaintiff Failed to Raise a Fact Issue with Respect to the Applicability
              of the Open Courts Guarantee

       Thomas has the burden to show that the nature of the claim was impossible or

exceedingly difficult to discover, and that she did not or could not have learned of

the fact of injury within the two year period. O'Reilly 107 S.W.3d at 707 (citing

Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 357 (Tex. 1990) (discovery of “fact

of injury” is triggering event for limitations); Borderlon v. Peck, 661 S.W.2d 907,

909 (Tex. 1983) (knowledge of “facts, conditions or circumstances which would

cause a reasonable prudent person to make inquiry is in law equivalent to knowledge

of the cause of action”).

       Although Thomas cites reasons for her delay in filing suit, which one might

find sympathetic, none of her reasons (lack of insurance; lack of funds; loss of job;

and/or, choosing to get the foreign object extracted prior to filing suit to confirm it

was actually the silastic tubing suspected) lead to the legal conclusion that the injury

was impossible of exceedingly difficult for Thomas to discover prior to the

expiration of limitations, but in fact proves the injury was discovered well before the

expiration of limitations.




                                          14
      a. Lack of financial resources

      In support of her Open Courts challenge, Thomas does not say that she did

not have reason to suspect the injury – she only says she lacked the financial

resources to get further testing or treatment for it. (Appellant’s Br. at p. 7, ¶4) This

is not a recognized reason to uphold an “as applied” Open Courts challenge and

Thomas provides no authority to support her proposition.

      In referring to Yancy v. United Surgical Ptnrs. Int’l, Inc., 236 S.W.3d 778,

785 (Tex. 2007), the Texas Supreme Court in Rivera pointed out that the plaintiff’s

Open Courts challenge to § 74.251 failed in part because “the guardian knew of

[Yates’s] condition and retained a lawyer well within the limitations period. On this

there is no fact issue establishing that [the guardian] . . . sued within a reasonable

time after discovering the alleged wrong. Thus, the Open Courts provision does not

save Yates’s time-barred negligence claims” Tenet Hosps. Ltd. v. Rivera, 445

S.W.3d 698, 703-04 (Tex. 2014). Similarly, the Texas Supreme Court in Yancy also

concluded that, because the limitations statute was constitutional as applied to

plaintiff, “there is no need to strike it down because it might operate

unconstitutionally in another case.” Yancy, 236 S.W.3d at 786.

      Although sympathetic, Thomas’ reasons for deferral of treatment due to lack

of financial resources does not lead to the legal conclusion that the injury was not


                                          15
discovered and that she in any way faced an impossible condition prior to the

expiration of limitations. Her injury was discovered by CT scan, and the results were

made known to Thomas, well within the limitations period.

      b. No requirement to investigate fact of injury

      Thomas’ Open Courts challenge also focuses on the February 2014 surgery

as the first time she was able “to confirm the existence and nature of the foreign

object, learn the reason for its presence [sic] her abdomen, and learn the identity of

the potentially culpable party or parties.” [Appellant’s Br. at p. 12, ¶6] Appellant’s

Brief alleges that: “Only after this procedure could Ms. Thomas actually know: (1)

that the cause of her pain was a catheter-type silastic tubing intentionally implanted

during her 2001 lap band surgery; and, (2) Dr. Jayakumar should have removed it as

part of and during her 2011 gastric bypass.” [p. 11, ¶5] Again, this is not a

recognized reason to uphold an “as applied” Open Courts challenge, and Thomas

provides no authority to support her proposition.

      This Court has squarely found that citing to numerous medical tests and

procedures and further investigation by counsel are insufficient reasons and no

explanation as to how a plaintiff did not have reasonable opportunity to discover a

medical injury. Gale v. Lucio, 445 S.W.3d 849, 855 (Tex. App.─Houston [1st Dist.]

2014, pet. filed).


                                         16
      Here, Thomas has the burden to show that the nature of her claim was

impossible or exceedingly difficult to discover and that she did not or could not have

learned of the fact of injury within the two year period. O'Reilly 107 S.W.3d at 707

(citing Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 357 (Tex. 1990) (discovery

of "fact of injury" is triggering event for limitations); Borderlon v. Peck, 661

S.W.2d 907, 909 (Tex. 1983) (knowledge of “facts, conditions or circumstances

which would cause a reasonable prudent person to make inquiry is in law equivalent

to knowledge of the cause of action”)).

      Thomas argues, without supporting authority, that “Under the Open Courts

provision of the Texas Constitution, Ms. Thomas’ claims could not begin to accrue

until Ms. Thomas was fully aware of what the foreign object inside of her was, who

was responsible for leaving the item in her, whether it was supposed to be there or

not, and if that was the item that caused her the pain and injury.” [Appellant's Br. at

p. 10 (Summary of Argument)]. There is also no legal authority under these facts to

support Thomas’ proposition that “It, therefore, is unconstitutional to deny Ms.

Thomas’ lawsuit because she did not file it within two years from the date of her

original surgery in November 2011,” or that “As such, the Open Courts provision of

the Texas Constitution precludes application of § 74.251, and § 74.251 cannot bar

Ms. Thomas’ lawsuit.” [Id. at p. 12, ¶7]


                                           17
      Thomas cites to Adkins v. Tafel to argue that the constitutionality of § 74.251,

as applied to a particular situation, turns on when the plaintiff acquired knowledge

of (1) the injury; (2) its cause; and (3) the identity of the potentially culpable party.

871 S.W.2d 289 (Tex. App.─Fort Worth 1994, no writ). [Appellant's Br. at 11, ¶4]

(CR. 70, pp. 4-5) But Adkins is instructive in this case insofar as the court actually

affirmed summary judgment in favor of the medical providers and upheld the

constitutionality of the statute of limitations at Tex. Rev. Civ. Stat. Ann. art. 4590i

(recodified at § 74.251. Tex. Civ. Prac. & Rem. Code). In Adkins, the court found

that failing to find an attorney to bring suit until after their claim was time-barred

did not affect the constitutionality of the statute, and that appellant-guardians did not

prove that appellee-physician fraudulently concealed anything that he should have

disclosed. Notably here, there is no dispute that Thomas had retained counsel by the

time she was advised of the presence of the foreign object in December 2012. Suit

could have been filed at that time. (CR. 171, ¶3) (“[Thomas] subsequently acquired

medical insurance in January 2013, lost it (and her job) in July, and then obtained

financial assistance through her attorneys - retained in December 2012 - that

ultimately resulted in a surgical procedure to remove the tubing on February 24,

2014.”) (Emphasis added).

      Thomas argues that “Only after this procedure [surgical removal by Dr. Albo

of the foreign object in February 2014] could Ms. Thomas actually know: (1) that

                                           18
the cause of her pain was a catheter-type silastic tubing intentionally implanted

during her 2001 lap band surgery; and (2) Dr. Jayakumar should have removed it as

part of and during her 2011 gastric bypass. Prior to this procedure Ms. Thomas had

been told that the pain she was suffering was attributable to a gallbladder problem.”

[Appellant's Br. at pp. 6, 11] (CR. 71, ¶18). This is merely an attempt by Thomas to

circumvent the fact that the foreign object was discovered on December 6, 2012, and

she cites no authority with similar facts to support that a plaintiff who has received

medical confirmation with advanced CT scan technology of the presence of a foreign

object inside the plaintiff's body must know exactly what the foreign object is to

ascertain that it is indeed a foreign object, and that it is necessary to have it removed

and looked at before she is required to comply with the two-year statute of

limitations of § 74.251. Even the affidavit of Dr. Daniel Albo states that he

discovered “a foreign object that I believed to be a catheter type structure located in

her peritoneal cavity.” (CR. 75, ¶3). No Texas court has ever struck down § 74.351

as applied on these facts, and there is no such authority to support Thomas’

contentions in this regard. The fact is, as the trial court correctly pointed out, the 11-

12 months between December 6, 2012 and November 14, 2013 12 afforded Thomas

a reasonable opportunity to file suit, and requiring her to have done so under these

circumstances did not impose an impossible condition. (CR.173, ¶11)




12
     -or- December 22, 2013, under a continuing course of treatment theory.
                                                19
       c. Frivolous litigation

       Thomas also cites an alleged concern about having brought frivolous litigation

before any point in time prior to the extraction of the silastic tubing, seemingly

arguing, albeit without supporting case law, that it was categorically necessary to

extract the foreign tube from her peritoneal cavity to ascertain the nature of her claim

and to sue the correct people or entities. [CR. 135-136]. Notably, Thomas does not

contend that anyone else operated on her abdominal area aside from the providers in

2001 and Jayakumar. In response to Thomas’ assertion, Jayakumar would show that

in litigation, it is well established that:

       (1)    A claim can be brought in good faith when injury is reasonably
              suspected. In this case, the alleged injury was known by December 6,
              2012 - one year and one month, at most, after the November 14, 2011
              surgery.

       (2)    A claim can be brought and the discovery process allows a party to seek
              facts and ascertain the merit of the claims brought. Here, Thomas cites
              no valid reason that she faced an impossibility in bringing her claims
              and engaging in the discovery process if she was worried about suing
              the wrong parties for the wrong injury.

O'Reilly v. Wiseman, 107 S.W.3d 699, 708-09 (Tex. App. 2003).


       Thomas also cites Walters v. Cleveland Reg’l Med Ctr., 307 S.W.3d 292 (Tex.

2010) for the proposition that “§ 74.251 is unconstitutional, insofar as it is applied

to cut off a cause of action before the plaintiff knew of the injury, its cause, and the

identity of the potentially culpable party.” [Appellant's Br. at 11, ¶4] Walters is

inapplicable to Thomas’ case, because in Walters, the plaintiff genuinely did not
                                              20
discover the injury until after the statute of limitations. 13 Here, Thomas admits that

she had her gastric bypass surgery on November 14, 2011, and that on December

6, 2012, a CT scan revealed the presence of a foreign object in her peritoneal cavity.

[Appellant's Br. at 7, ¶¶2, 4] The Houston Northwest Medical Center ER personnel

told Thomas on December 6, 2012 that the tubing was responsible for her symptoms

and should be removed. It is also undisputed that she retained her attorney(s) at that

time. Again, this was 11-12 months before the limitations period expired. Unlike

Walters, there is no fact question here presented as to whether Plaintiff knew her

injury, and its cause, and did not have an opportunity to file suit before limitations

had run.

                                 IV.     CONCLUSION

       Thomas’ claims are decidedly and unquestionably time-barred by the statute

of limitations. § 74.251, TEX. CIV. PRAC. & REM. CODE. The statute of limitations

is not unconstitutional as applied. The discovery rule does not apply to Thomas’

claims. Obviously, it was neither impossible nor exceedingly difficult for Thomas


13
   In Walters, the Court noted that “Sponge cases are sui generis. They rarely occur, they never
occur absent negligence, and when they do occur, laypeople are hard-pressed to discover the
wrong.” Id. at 298. Thomas’ case, however, is distinguishable from these kinds of “foreign
object” medical negligence cases. The placing of the silastic tubing, in Thomas’ case, was not
unknown or unknowable, but rather an intended part of her 2001 lap band surgical procedure. As
such, it was not negligence to leave it in the abdomen – unlike a surgical sponge. Nor was the
silastic tubing placement in the abdomen uniquely in the knowledge or control of the surgeon, or
otherwise “exceedingly difficult to discover.” Id. at 297.

                                              21
to discover the injury, or even its cause, within the statute of limitations. Thomas

knew (or should/could have known) that the tubing was placed in her abdomen in

2001 and, by December 2012 at the latest, she knew Dr. Jayakumar had not removed

it and that it might be causing her medical complaints. The next 11 to 12 months

afforded Thomas a reasonable opportunity to file suit, and requiring her to have

done so under these circumstances does not “impose and impossible condition” of

the type and nature that warrants the protection of the Open Courts guarantee. See

Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 703-04 (Tex. 2014). For reasons that

do not serve to defeat the affirmative defense of the statute of limitations, Thomas

chose not to bring, or delayed in timely bringing, her claims. The delay in timely

filing suit does not constitute diligence on her part.

      In this case, it is clear that Thomas did not meet her burden. She failed to raise

a fact question with respect to the applicability of the Open Courts guarantee. No

Texas court has rendered the result that Thomas seeks here, and the trial court's

judgment in this case must be affirmed.

                                  V.      PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellee, T. Jayakumar, M.D.,

respectfully prays that this Honorable Court affirm the trial court’s October 29, 2014,




                                          22
order granting Jayakumar’s summary judgment, and dismissal with prejudice, and

for any further relief to which Appellee may show himself justly entitled.

                                      Respectfully submitted,

                                      SMITH ADAMS LAW FEEHAN LLP



                                      By: /s/ Michael C. Feehan
                                        Michael C. Feehan
                                        State Bar No. 06873300
                                        Mike@SmithAdamsLaw.com
                                        Stephanie A. Sanders
                                        State Bar No. 24055315
                                        Stephanie@SmithAdamsLaw.com
                                        1415 Louisiana Street, Suite 3800
                                        Houston, Texas 77002-7360
                                        P: (713) 652-3200
                                        F: (713) 652-6000
                                        ATTORNEYS FOR APPELLEE
                                        T. JAYAKUMAR, M.D.




                                         23
                       CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned

counsel – in reliance upon the word count of the computer program used to prepare

this document, Microsoft Word 2013 – certifies that this Brief contains 4988 words,

excluding the words that need not be counted under Texas Rule of Appellate

Procedure 9.4(i)(1).



                                             /s/ Michael C. Feehan
                                             Michael C. Feehan




                                        24
                          CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing Brief of Appellee
has been served upon each party or their duly authorized agent or attorney of record
as set out below on this the 20th day of March, 2015.

                                        /s/ Michael C. Feehan
                                        Michael C. Feehan


      Jorge Borunda
      jborunda@radacklaw.com
      Michael Trevino
      mtrevino@radacklaw.com
      Orjanel Lewis
      olewis@radacklaw.com
      RADACK AND BORUNDA, P.C.
      1345 Campbell, Suite 220
      Houston, Texas 77055
      via E-service

      David Luningham
      dlluningham@watsoncaraway.com
      Helena Venturini
      hventurini@watsoncaraway.com
      WATSON, CARAWAY, MIDKIFF & LUNINGHAM, LLP
      1600 Oil & Gas Building
      309 West 7th Street
      Fort Worth, Texas 76102
      via E-service

      Honorable Grant Dorfman
      334th Judicial District Court
      201 Caroline, 14th Floor
      Houston, Texas 77002




                                          25
                                  APPENDIX

   Pursuant to Tex. R. App. P. 38.2(a)(1)(C), Appellee, T. Jayakumar, M.D., herein
encloses this Appendix to his Brief. The Appendix’s contents is as follows:

   1. Order granting Defendant’s Motions for Summary Judgment, dated
      October 29, 2014 (CR. 170-174)

   2. Affidavit of Plaintiff Tiffany Thomas (CR. 82-84)




                                       26
APPENDIX – Tab 1




       27
APPENDIX – Tab 2




       28
