No. 05-11-01327-CV ACCEPTED 225EFJ016716717 FIFTH COURT OF APPEALS DALLAS, TEXAS 12 February 7 P7:40 Lisa Matz CLERK In The FIFTH COURT OF APPEALS Dallas, Texas Edmund Sanchez, M.D. and Henry B. Randall, M.D., Appellants, v. Nikolas Martin and Teresa Martin, Individually and as Representatives of the Estate of Jim Martin, Appellees. Appealed from Cause No. 06-04667-D 95th Judicial District Court, Dallas County, Texas, Honorable Ken Molberg, Presiding Judge Reply Brief of Appellants Edmund Sanchez, M.D. and Henry B. Randall, M.D. Ty Bailey Texas Bar No. 00796153 Stinnett Thiebaud & Remington L.L.P. 1445 Ross Ave., Suite 4800 Dallas, Texas 75202 (214) 954-2200 (214) 754-0999 (fax) tbailey@strlaw.net Counsel for Appellants Edmund Sanchez, M.D. and Henry B. Randall, M.D. ORAL ARGUMENT REQUESTED
Table of Contents Index of Authorities... ii Reply Argument... 1 I. The Martins brief tacitly concedes Dr. Wu s reports do not support their informed consent theory of liability... 1 II. The Martins brief tacitly concedes Dr. Wu s reports do not support their claims for fraud and intentional misrepresentation... 2 III. The Martins general negligence theory fails.... 3 IV. A dismissal would not violate the open courts provision of the Texas Constitution.... 5 V. The Martins are not entitled to a remand for consideration of a 30-day extension... 5 Prayer... 8 Certificate of Service... 9 i
Index of Authorities Texas Supreme Court Cases Diaz v. Westphal, 941 S.W.2d 96 (Tex. 1997)... 5 Moreno v. Sterling Drug, Inc., 787 S.W.2d 348 (Tex. 1990)... 5 Samlowski v. Wooten, 332 S.W.3d 404 (Tex. 2011)... 7 Texas Courts of Appeals Cases Baylor University Med. Ctr. v. Biggs, 237 S.W.3d 909 (Tex. App. Dallas 2007, pet. denied).... 1, 2 Bever Properties, L.L.C. v. Jerry Huffman Custom Builder, L.L.C., 2011 Tex. App. LEXIS 9098 (Tex. App. Dallas 2011, no pet. h.)... 2 Gates v. Altaras, 2010 Tex. App. LEXIS 1905 (Tex. App. Waco 2010, no pet.) (memorandum opinion)... 6, 7 Hightower v. Baylor University Med. Ctr., 348 S.W.3d 512 (Tex. App. Dallas 2011, pet. filed).... 1, 2, 4 Hollingsworth v. Springs, 353 S.W.3d 506 (Tex. App. Dallas 2011, no pet.)... 3, 7 Windsor v. Maxwell, 121 S.W.3d 42 (Tex. App. Fort Worth 2003, pet. denied)... 3 ii
Texas Statutes TEX. CIV. PRAC. & REM. CODE ANN. 74.101... 3, 4 TEX. CIV. PRAC. & REM. CODE ANN. 74.351(a)... 7 TEX. CIV. PRAC. & REM. CODE ANN. 74.351(c)...7 iii
Reply Argument I. The Martins brief tacitly concedes Dr. Wu s reports to not support their informed consent theory of liability. With each of their four successive petitions, the Martins have consistently maintained Mr. Martin s death occurred as a result of a rabies [sic] infested liver which was transplanted into his body without his informed consent. (CR 14; CR 22; CR 229; CR 420). Indeed, at the first hearing on the initial dismissal motions, the Martins took the position that their expert had not been provided a copy of the signed informed consent document. (RR 2:23-24). In their brief to this court, however, appellees essentially concede the reports of Dr. Wu like the reports found in Biggs 1 and Hightower 2 do not support an informed consent claim. 3 Rather, appellees attempt to distinguish their case from Biggs and Hightower: Prior to the hearing in the case at bar, plaintiffs pled an alternative theory of recovery that did not depend on informed consent Plaintiffs/Appellees contend here that the amended pleadings containing the alternative theory of liability present a viable claim, properly supported by expert reports in conformity with Section 74.351, and that the trial court, de- 1 Baylor University Med. Ctr. v. Biggs, 237 S.W.3d 909 (Tex. App. Dallas 2007, pet. denied). 2 Hightower v. Baylor University Med. Ctr., 348 S.W.3d 512 (Tex. App. Dallas 2011, pet. filed). 3 See Appellees Brief at pp. 3-4. 1
spite the rulings in Biggs I and Hightower, properly denied the Appellants motions to dismiss. 4 Because the Martins fail to argue the reports of Dr. Wu support an informed consent claim, they have waived their response to appellants arguments. 5 Accordingly, appellees informed consent claims indeed, all of their claims must be dismissed. 6 II. The Martins brief tacitly concedes Dr. Wu s reports do not support their claims for fraud and intentional misrepresentation. In their Second Amended Original Petition, the Martins sought to add a claim for fraud and/or intentional misrepresentation against one or more of the Defendants. (CR 235). These allegations remain in appellees live pleadings. (CR 428). However, as with their informed consent claims, appellees advance no arguments in their brief that Dr. Wu s reports support claims for fraud or intentional misrepresentation. 7 Accordingly, to the extent they are independent of the informed consent claims, 4 Appellees Brief at p. 4. 5 Cf. Bever Properties, L.L.C. v. Jerry Huffman Custom Builder, L.L.C., 2011 Tex, App. LEXIS 9098 at *12 (Tex. App. Dallas 2011, no pet. h.) ( Failure to advance an argument, cite authority, make record references or otherwise brief an issue effects a waiver of that issue on appeal. ). 6 Even if appellees have not waived their argument, the reports of Dr. Wu remain deficient and do not support informed consent claims against either appellant. (See Brief of Appellants Edmund Sanchez, M.D. and Henry B. Randall, M.D. at pp. 14-20). 7 See generally Appellees Brief at pp. 10-26. 2
appellees fraud and intentional misrepresentation claims must be dismissed. 8 III. The Martins general negligence theory fails. Appellees core argument is that their lawsuit should proceed because in their Third Amended Original Petition a document filed five years after their Original Petition and on the same day of the hearing on appellants second motions to dismiss they pled an alternative theory of recovery that did not depend on informed consent. 9 In effect, the Martins hope to distance themselves from this Court s prior decisions in similar rabies cases by the use of creative pleadings. As previously argued in the Brief for Appellants Edmund Sanchez, M.D. and Henry B. Randall, M.D., there are three roadblocks to this argument which the Martins cannot overcome. 10 First, section 74.101 does not allow a general negligence theory of recovery when a claim is based on the failure to disclose risks. 11 The underlying basis of the Martins lawsuit is an alleged failure to disclose risks to the patient. 8 See e.g., Hollingsworth v. Springs, 353 S.W.3d 506, 522 (Tex. App. Dallas 2011, no pet.) (citing Windsor v. Maxwell, 121 S.W.3d 42, 51 (Tex. App. Fort Worth 2003, pet. denied)). 9 Appellees Brief at p. 4. 10 See Brief for Appellants Edmund Sanchez, M.D. and Henry B. Randall, M.D. at pp. 20-24. 11 See TEX. CIV. PRAC. & REM. CODE ANN. 74.101. 3
Whether risks inherent to the transplant procedure or risks associated with a specific high-risk donor, appellees cannot escape the language of section 74.101 by placing the heading Defendants Negligence (General) (CR 424) in a pleading. Second, as this Court made clear in Hightower, even if an alternative theory of liability were theoretically viable, the underlying facts preclude such a claim. In Hightower, this Court rejected an attempt to recast the allegations and thereby circumvent the problems of an informed consent claim as an unnecessary surgery claim. 12 In the present case, the Martins are attempting to recast their informed consent allegations as general negligence claims. Just as it was in Hightower, the focal point of the claimants allegations is the condition of the organ donor, not the organ recipient. 13 The true issue of dispute is the risk disclosure, not the surgery. Finally, even if the Martins alternative theory of recovery was a legitimate one, the reports of Dr. Wu make no attempt to address each element standard of care, breach, or causation with regard to either Dr. Sanchez or Dr. Randall. 14 12 Hightower, 348 S.W.3d at 519-20. 13 Id. at 520. 14 See Brief of Appellants Edmund Sanchez, M.D. and Henry B. Randall, M.D. at pp. 23-24. 4
IV. A dismissal would not violate the open courts provision of the Texas Constitution. The Martins contend that a dismissal of their lawsuit would violate the open courts provision of the Texas Constitution. 15 In order to prevail on an open courts challenge, a claimant must show: a) that he has a cognizable common-law cause of action, and b) that restriction of the claim is unreasonable or arbitrary when balanced against the statute s purpose. 16 Appellees claims claims for wrongful death and survival damages did not exist at common law and exist today only by statute. 17 Therefore, the Martins cannot avail themselves to an open courts challenge because they cannot establish a cognizable common-law cause of action. V. The Martins are not entitled to a remand for consideration of a 30- day extension. Appellees brief raises a fourth issue for this Court namely, whether a remand to the trial court for consideration of a 30-day extension to cure Dr. Wu s deficient reports is appropriate. 18 15 Appellees Brief at p. 21. 16 See Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355 (Tex. 1990). 17 See Diaz v. Westphal, 941 S.W.2d 96, 100 (Tex. 1997). 18 See Appellees Brief at p. 3. 5
Following the expiration of the 120-day deadline, Judge Johnson court gave the Martins a 30-day period to update Dr. Wu s report. (RR 2:25-27). The Martins now take the position that Judge Johnson s 30-day reprieve was not a statutory extension, because there was no finding that Dr. Wu s first two reports were defective. 19 This argument ignores the simple truth that there would be no need for Dr. Wu to update his two prior reports unless they did not satisfy the requirements of section 74.351. And the Martins reliance on Gates v. Altaras 20 in support of their position is misplaced. In Gates, after finding a patient s expert report deficient, the Waco Court of Appeals remanded the case for the trial court to consider a 30- day extension. 21 The remand was ordered despite the fact that the defendant had already provided the plaintiff a prior, 45-day period to cure the report, and the patient took had provided a new, albeit deficient, report. 22 The current case differs from Gates in two distinct respects. First, the Martins 30-day extension in January 2007 was, in fact, granted by 19 See id. at pp. 25-26. 20 Gates v. Altaras, 2010 Tex. App. LEXIS 1905 (Tex. App. Waco 2010, no pet.) (memorandum opinion). 21 Id. at *9. 22 Id. at *8-9. 6
the trial court, not by a written agreement between the parties. 23 Accordingly, appellees have already been granted the one 30-day extension allowed by the statute. 24 Second, the Waco Court of Appeals did not examine each element of the report, only the causation element. 25 Rather, the Court [a]ssum[ed] without deciding that [the expert] even properly stated a standard of care and breath of that standard 26 In the present case, the final report of Dr. Wu is not just deficient on one element, but on every element of the informed consent claims made against appellants. 27 When an expert report fails to address all required elements of a claim, the trial court may not consider an extension. 28 23 See TEX. CIV. PRAC. & REM. CODE ANN. 74.351(a) (allowing for the deadline for serving a report to be extended by a written agreement of the affected parties). 24 See id. at 74.351(c). 25 Gates, 2010 Tex. App. LEXIS 1905 at *6. 26 Id. 27 See generally Brief for Appellants Edmund Sanchez, M.D. and Henry B. Randall, M.D. at pp. 14-20. 28 Hollingsworth v. Springs, 353 S.W.3d 506, 524 (Tex. App. Dallas 2011, no pet.) (citing Samlowski v. Wooten, 332 S.W.3d 404, 417-18 (Tex. 2011)). 7
Prayer Because the trial court abused its discretion in denying Dr. Sanchez s Second Motion to Dismiss and Dr. Randall s Second Motion to Dismiss, appellants pray that this Fifth Court of Appeals: (1) reverse the trial court s order denying appellants motions to dismiss; (2) order dismissal of appellees claims against appellants with prejudice; and (3) remand the case to the trial court in order that appellants may present evidence of their attorneys fees and costs. Respectfully submitted, STINNETT THIEBAUD & REMINGTON L.L.P. By: /s/ Ty Bailey Ty Bailey Texas State Bar No. 00796153 1445 Ross Avenue, Suite 4800 Dallas, TX 75202 (214) 954-2200 (214) 754-0999 (fax) tbailey@strlaw.net 8
Certificate of Service A copy of this document was delivered electronically or by Certified Mail, Return Receipt Requested on February 7, 2012, to the following counsel for other parties: Jeffrey Kobs Kobs, Haney & Hundley, L.L.P. Sundance Square Suite 204 115 West Second Street Fort Worth, Texas 76102 Michelle E. Robberson Cooper & Scully 900 Jackson Street, Suite 100 Dallas, Texas 75202 /s/ Ty Bailey Ty Bailey 9