Petitioner Reply Brief Filed Supreme Court of Texas by jennyyingdi

VIEWS: 3 PAGES: 25

									              ORAL ARGUMENT REQUESTED




            IN THE SUPREME COURT OF TEXAS


                    PEDRO P . HANI, M .D.,
                        Petitioner,

                                v.

ISABELLA JIMENEZ, INDIVIDUALLY, AND AS REPRESENTATIVE
    OF THE ESTATE OF REFUGIO P . JIMENEZ, DECEASED,
                       Respondent.


                 On Petition for Review from the
         Fifth District Court of Appeals at Dallas, Texas
                   Cause No . 05-07-41354-CV


       PETITIONER'S REPLY BRIEF ON THE MERITS


                             Respectfully submitted,

                             R. BRENT COOPER
                             Texas Bar No . 04783250
                             DIANA L . FAUST
                             Texas Bar No . 00793717
                             MICHELLE E. ROBBERSON
                             Texas Bar No . 16982900
                             DEVON J . SINGH
                             Texas Bar No, 24027260
                             COOPER & SCULLY, P .C.
                             900 Jackson, Suite 100
                             Dallas, Texas 75202
                             Telephone: (.214) 712-9500
                             Facsimile : (214) 712-9540

                             ATTORNEYS FOR PETITIONER
	




                                  TABLE OF CONTENTS

                                                                                      Page

    TABLE OF CONTENTS . ..

    TABLE OF AUTHORITIES	

    ARGUMENT AND AUTHORITIES IN REPLY__	

    I.    Improper Statement of Facts and Citation to Testimony Not in Evidence 	        1

          A.    Objection to "Introduction," "Statement of Facts," and "Argument" 	      1

          B     Objection to the Citing of Dr, Trone's Testimony Not in Evidence

    II.   Error in the Court's Charge Probably Caused the Rendition of an Improper
          Judgment . , . . .. ,,,,

                 1.    Standard of Review for Charge Error

                2      Mrs . Jimenez Fails to Acknowledge Legally Sufficient
                       Evidence Supports Submission of Her Conduct

          B.    This Court Should Extend the Legal Duty Owed to Cooperate in the
                Patient's Care to Mrs . Jimenez Under These Facts	                       4

                       Mrs . Jimenez Fails to Raise Any Credible Reason that
                       Recognition of Duty Owed Under These Facts Creates an
                       Unreasonable Burden on Society                                    4

                       Mrs . Jimenez's Authority Supports Imposing a Duty Here 	         5

                 3.    Applying the Factors This Court Considers in Recognizing a
                       Duty, Mandates Imposing on Mrs . Jimenez a Legal Duty to
                       Cooperate in Her Husband's Care	                                  7

          C.     Alternatively, Mrs . Jimenez Assumed a Legal Duty to Cooperate in
                 Her Husband's Care__ ,,,,,,,,,, 	                                       8

                 1.    Mrs Jimenez's Arguments Regarding Duties Owed to Her
                       Husband and to Diagnose His Condition are Irrelevant and
                       Provide No Guidance on the Issues Presented . .                   8

                 2.    Applying Elbaor and .Iaekson, This Court Should Extend the
                       Duty to Cooperate Here . .                               .	       9
	




                  Mm Jimenez Applies Incorrect Standard for Determining Conflicts
                  Jurisdiction_	                                                        11

                  Public Policy Supports Recognizing a Duty or Assumption of a
                  Duty, or Extension of the Elbaor Duty to Cooperate Under These
                                                                                        12

    III .   Reversal and Remand Required as a Result of Trial Court's Harmful Eliot 	   16

    CERTIFICATE OF SERVICE 	                                                            19




                                                 ii
	




                                    TABLE OF AUTHORITIES

    Case                                                                                     Page(s)

    Boatlancl, .Inc v Bailey,
           609 S,.W .2d 74.3 (Tex . 1980)

    Decker & Sons, inc . v Capps,
            .
          139 Tex. 609, 164 S,W .2d 828 (1942)                                                      .15

    Elbaor v Smith,
          845 S .W .2d 240 (Tex, 1992)                                                        3, 7,10

    El Chico v, Poole,
           732 S.W.2d 306 (Tex . 1987) . . .      .	                                                   7

    Fall v White,
           449 N,E.2d 628 (Ind .. Ct. App . 1983)	                                                    13

    Garza v . Estate of Salinas,
           No . 04-94-00516-CV, 1996 Tex . App . LEXIS 5112
           (Tex. App . .San Antonio 1996, no writ)	                                                   12

    Hancock v . City cif San Antonio,
          800 S .W .2d 881 (Tex . App .-San Antonio 1990, writ denied) .. .                   , ,,,,,,, .
                                                                                      . . . . .5, 6

    Hill v . Kimball,
             76 Tex . 210, 13 S .W . 59 (1890)	                                                       15

    Jackson v Axelrad,
          221 S .W .3d 650 (Tex . 2007)	                                                         9, 11

    Lehmann v, Wieghat,
         917 S .W .2d .379 (Tex .. App .-Houston [14th Dist ..] 1996, writ denied)	                     3

    McKisson v . Sales Affiliates, Inc ,
          416 S .W.2d 787 (Tex . 1967)                                                                15

    Otis Engineering Corp, v . Clark,
          668 S .W..2d .307 (Tex. 1983)	               _	                                             15
	




    Pantaleo v . Our Lady of the Resurrection Med . Ctri ,
           297 111, App . 3d 266, 231 111 . Dec, 421, 696 N .E .2d 717 (1st Dist. 1998),
          appeal denied, 179 Ill . 2d 589, 23 .5 Ill. Dec, .567, 705 N .E .2d 440 (1998)
                                                                                                    3,14,1 .5

    Parker v Highland Park, Inc .,
          .56 .5 S . W.2d .512 (Tex . 1978)	                                                           :, . .15

    Sanchez v . Schindler,
          651 S,W.2d 249 (Tex . 1983)	             :	                                  : . :	              15

    Texas Workers' Comp . Ins. Fund v. Mandlbcruer,
          34 S .,W.3d 909 (Tex . 2000)                                                                       3

    Torrington Co v . Stutzman,
          46 S .W .3d 829 (Tex . 2000)	                                                                      9

    Union Pac. R .R. Co. v. Williams,
          85 S .W .3d 162 (Tex . 2002) .

    Statutes, Rules&Constitutions                                                                   Pa e s

    TEx .. C1v . PRAC, & REM . CODE ANN . § .33 .003	                     :...    .	                         4

    TEX, GOVT CODE ANN . § 22,001(e)	                                                                      12

    TEx. R. . APP.. P . 5 .52(g)                                                                             1

    TEx . R. APP, P . 55 .3	                   :

    TE.x . R. APP . P . 61 .1(a) ,	                                                                          3

    TEx . R. APP . P . 61 .1(b)                                                                 	            3

    TEX .. R. C1v, P . 278                                                                                   3

    Miscellaneous                                                                                   Page(s)

    K.urtis A. Kemper', Annotation, Contributory Negligence or Comparative
            Negligence Based on Failure of Patient to Follow Instructions as Defense
            in Action Against Physician or Surgeon for Medical Malpractice, 84
            A.L .R .5 t, 619 (2003) ...                      .	                                            13



                                                        iv
Sharon W. Murphy, Contributory Negligence in Medical Malpractice : Are the
       Standards Changing to Reflect Society's Growing Health Care
       Consumerism?, 17 DAYTON L, REV, . 151, 173 (1991)                     .13

Restatement (Second) of Torts § 314 (1965),, 	




                                            v
                                                  NO . 08-0819


                              IN THE SUPREME COURT OF TEXAS


                                          PEDRO P . HANI, M.D.,
                                              Petitioner,

                                                          v.

       ISABELLA JIMENEZ, INDIVIDUALLY, AND AS REPRESENTATIVE
           OF THE ESTATE OF REFUGIO P . JIIVIENEZ, DECEASED,
                              Respondent.


                                 On Petition for Review from the
                          Fifth District Court of Appeals at Dallas, Texas
                                    Cause No. 05-07-01354-CV


                      PETITIONER'S REPLY BRIEF ON THE MERITS


TO THE HONORABLE JUSTICES OF THE SUPREME COURT OF TEXAS:

         Petitioner Pedro P Hani, M .D . ("Dr, Hani" or "Petitioner") submits this Reply

Brief on the Merits, ' pursuant to the Court's letter request and in compliance with Rule

55,4 of the Texas Rules of Appellate Procedure, urging the Court grant review, and

reverse the judgments of the court of appeals and trial court,.




  To the extent Petitioner may not reply to a particular assertion or argument or citation by Respondent, such
conduct should not be construed as acquiescence by Petitioner in Respondent's arguments or waiver by Petitioner of
any argument . Petitioner stands on the arguments and authority set forth in his Brief on the Merits, as well as those
asserted herein, and limits discussion and argument in his Reply Brief on the Merits to responding to certain of the
arguments made by Respondent in her Brief on the Merits.


                                                         vi
	




                             ARGUMENT AND AUTHORITIES IN REPLY

    I.       Improper Statement of Facts and Citation to Testimony Not in Evidence

             A.       Objection to "Introduction," "Statement of Facts," and "Argument"

             Petitioner objects to Respondent's "Introduction," "Statement of Facts," and

    "Argument"2 Mrs. Jimenez's Brief on the Merits includes, within these sections, many

    arguments presented as "factual statements" which are not supported by record

    references, and at least one citation is to testimony not in evidence, as discussed below .3

    Thus, this Court should disregard improper arguments posed as "facts," as well as

    citation to testimony not in evidence.

             Specifically, Mrs, .Jirnenez states at various places throughout her Brief several

    "factual" statements unsupported by record citation because there simply was no

    evidence presented of these "facts," First, she states that she was not her husband's legal

    guardian, that she had no power of attorney to make medical decision on here husband's

    behalf, and that her husband was neither incompetent nor incapacitated .. (Respondent's

    Brief on the Merits at 1, 9-10, 15, 25) . She further states that it was unforeseeable to her

    that Dr. Hani had discharged her husband with a life threatening condition . (Id at 2, 26-

    28) .




             See TEEx, R, APP . P 55 2(g), 55 3.

    3
             Mrs . Jimenez also mischaracterizes the record as showing "there is absolutely no evidence that [she] knew
    that Refugio had been coughing up blood before she made the 9-1-1 call " (Respondent's Brief on the Merits at 13;
    2, 12-14, 15-16, 27-28) Not surprisingly, she refuses to acknowledge the portion of the record from which she
    quotes, showing that she was the historian providing the information to the emergency room upon arrival
    and immediately prior to his death that Mr Jimenez was "coughing up blood all day today per wife ." (P . Ex . 17).



    REPLY BRIEF ON THE MERITS OF PETITIONER                                                                   PAGE 1
	




    proximately caused or contributed to cause her husband's death . Thus, the trial court was

    required to submit her negligence to the jury for assignment of liability to reduce her

    recovery, as well as to apportion her responsibility,

                              Standard of Review for Charge Error

           It is well settled that a party is entitled to a jury question, instruction, or definition

    if the pleadings and evidence raise an issue . ' This is a substantive, non-discretionary

    directive to trial courts, requiring them to submit requested questions to the jury if the

    pleadings and any evidence support them . ' Under this standard, if a party properly pleads

    an issue and the record contains some evidence to support it, the court must submit

    controlling questions to the jury. A controlling issue is one that requires a factual

    determination to render judgment in the case . &

           To reverse a judgment based on error in the jury charge, this Court must find the

    error caused harm . '        A refused question causes reversible error if it was reasonably

    necessary to enable the jury to render a proper verdict . 10                        Error also is harmful if it

    probably resulted in the rendition of an improper judgment .                          And, the presumed harm




    s      Union Pac. R .R. Co. v. Williams, 85 S W .3d 162, 166 (Tex 2002) (citing TEX R C[v P 278)

    6
           Elbuor v. Smith, 845 S W 2d 240, 243 (Tex 1992).

    7
           E g , Elbuor, 845 S W .2d at 243 (this is a substantive, non-discretionary directive to trial courts)

    x      E ,gr , Lehmann v. Wieghat, 917 S .W,2d 379, 382 (Tex App -Houston [14' 1' Dist ] 19%, writ denied).
    9
           E.g., Boatland, Inc. v. Bailey, 609 S . W 2d 743, 749-50 (Tex . 1980).

    io          Texas Workers' Camp . Ins. Fund v. Mandlbaner, 34 S W 3d 909, 912 (Tex 2000).

    3I
           TEX R . APP P 61 1(a)


    REPLY BRIEF ON THE MERITS OF PETITIONER                                                                        PAGE 3
			




      standard should be applied where Petitioner has shown he was probably prevented from

      properly presenting his appeal . '

                         2.     Mrs-. Jimenez Fails to Acknowledge Legally Sufficient Evidence
                                Supports Submission of Her Conduct

             It is undisputed that Dr. Haul's pleading raised the issue of Mrs . Jimenez's

      negligence that proximately caused or contributed to cause her husband's death Mrs,

      Jimenez strains to argue only the evidence supporting the trial court's denial of the

      requested submission of Mrs . ,Jimenez within its charge in Questions 1 and 2, rather than

      acknowledging that legally sufficient evidence of her negligence proximately caused or

      contributed to cause her husband's death . (Respondent's Brief at 3-14, 24-25, 27-28).

      As discussed within his Petition for Review, his Brief on the Merits (each incorporated

      here) and herein, Petitioner has shown that Mrs . Jimenez's conduct was a controlling

      issue that should have been submitted to the jury to render a proper judgment 13

      Accordingly, the trial court abused its discretion in refusing to submit her conduct within

      Questions Nos . I and 2 of the Court's Charge.

             B.         This Court Should Extend the Le al Dut Owed to Coo s erate in the
                        Patient's Care to Mrs . Jimenez Under These Facts

                        1 . Mrs. Jimenez Fails to Raise Any Credible Reason that Recognition
                             of Duty, Owed Under These Facts Creates an Unreasonable
                             Burden on Society

             Initially, Mrs . Jimenez. argues that no legal duty arises between spouses under the

      court of appeals' focus-that family members do not owe a legal duty to affirmatively


      1?
             Id at   61 1(1))

      33
             TLx CIV . PRAC, &REM CODE ANN § 33 00 .3.



      REPLY BRIEF ON THE MERITS OF PETITIONER                                             PAGE 4
	




    prevent injury to one another. (Respondent's Brief on the Merits at 18-22) .. Mrs.

    Jimenez cites to twenty-two decisions in which this Court has declined to recognize a

    duty that creates an unreasonable burden on society, but then fails to even mention how

    recognition of a duty here would create such a burden,      (Id ) . Petitioner has addressed

    those cases within his Brief on the Merits, and incorporates those arguments here ; indeed,

    Petitioner has shown how many of them actually support imposition of a duty here. (See

    Petitioner's Brief on the Merits at 31-40).

                  2.     Mrs. Jimenez's Authority Supports Imposing a Duty Here

           Mrs, Jimenez next compares the facts here to other "analogous" cases in which

    courts refused to apply any duty as between spouses and family members . (Respondent's

    Brief on the Merits at 19-22) . Petitioner has also distinguished those cases within his

    Brief on the Merits and incorporates those arguments here . (See Petitioner's Brief on the

    Merits at 31-40.

           Mrs . Jimenez also erroneously relies on Hancock v City of San Antonio, 800

    S. W.2d 881, 883-885 (Tex, App.-San Antonio 1990, writ denied), (Respondent's Brief

    on the Merits at 20-21) . There, the court held that a daughter owed no duty to prevent her

    elderly mother's death (caused by a natural gas explosion in her mother's apartment),

    despite that she never contacted the city for over three years about a natural gas smell in

    and around the apartments, nor did she contact CPS to detect, locate, and stop the gas

    leak . Id. at 883-84 . The court explained that factors support imposing a legal duty where

    there exists a familial or voluntary relationship which imposes a duty, where statutes or

    ordinances require action, or special circumstances Id. at 884.


    REPLY BRIEF ON THE MERITS OF PETITIONER                                              PAGE 5
	




           Here, the evidence showed that MrsJimenez voluntarily assumed the duty to

    cooperate in her husband's care, where : Mrs. Jimenez signed the discharge instructions

    acknowledging that she understood them (P . Ex. 12; see also 4 RR 192) ; a nurse

    contemporaneously signed that she informed of the possible complications to notify the

    doctor for and that she verbalized her understanding of them (8 RR D . Ex . 1 at 98) ; Dr.

      one testified that he orally reviewed the discharge instructions with both Mr, and Mrs.

    Jimenez (7 RR P . Ex. 4 at 2, Ex. 12 ; 11 RR Court's Ex . 21 ; depo . pp. 81-83); Dr. Trone

    explained the plan and discharge instructions, and listed with them the concerns they

    needed to be aware of and to call the office (11 RR Court's Ex, 21 ; depo, pp . 82-83) ; Dr.

    Trone would not have discharged Mr . Jimenez if Mrs . Jimenez had expressed concern

    about discharge of her husband because it is his routine and policy that if the patient or

    family member requests continued hospitalization, they always stay (11 RR Court's Ex,

    21 ; depo . p . 84) ; Mrs . .Jimenez testified she understood the critical importance of

    complying with the discharge instructions (4 RR 192) ; Mrs. Jimenez knew each and

    every condition listed on the discharge instructions existed for days after her husband's

    discharge (4 RR 215) ; that during the entire week after discharge, Mr . Jimenez would just

    lie on the couch or floor (4 RR . 168) ; she had performed in this capacity prior to the last

    days of his life and in connection with very illness for which he was treated and

    discharged (4 RR 21 .5 ; 5 RR 23, 111), Thus, where Mrs . Jimenez voluntarily took

    affirmative action, she owed a duty to act reasonably in complying with the discharge

    instructions . See Hancock, 880 8 .W .2d at 884




    REPLY BRIEF ON THE MERITS OF PETITIONER                                               PAGE 6
	




                       3.         Applying the Factors This Court Considers in Recognizing a Duty,
                                  Mandates Imposing on Mrs. Jimenez a Legal Duty, to Cooperate in
                                  Her Husband's Care

             Finally, as shown within Petitioner's Brief on the Merits and incorporated here,

    applying the factors this Court has considered in recognizing a duty in other situations,

    this Court should hold that Mrs, Jimenez owed a duty to cooperate in her husband's care.

    (See Petitioner ' s Brief on the Merits at 13-19).

             Mrs . Jimenez argues only that it was not foreseeable to her that Mr . Jimenez had

    been discharged with a life-threatening condition . (Respondent's Brief on the Merits at

    26-27) . Foreseeability does not require the actor anticipate the particular accident, but

    only that he reasonably anticipate the general character of the injury . '` For example, in

    Elbaor, this Court explained:

             [Tjhe unusual act of refusing to take antibiotics, which a medical doctor has
             prescribed to preserve a patient's health, plainly may cause harm.
             Additionally, it breaches a duty of cooperation which patients owe treating
             physicians who assume the duty to care for them . , Ms. Smith's refusal
             to take the antibiotics also constituted an inherently harmful act, because, as
             the testimony at trial demonstrated, refusing antibiotics can permit an
             infection to develop . Thus, her refusal of medication essential to
             maintaining her health created a fact issue as to whether she contributed to
             the infection that eventually afflicted her ankle . 15

             A reasonable person knows and can foresee that injury may result from a failure to

    obtain needed follow-up medical care for a spouse who has recently been discharged

    from the health care provider to home, and where the spouse exhibits each of the

    conditions noted on the written discharge instructions and covered in the verbal discharge


    ''' El Chico v. Poole,   732 S W 2d at 306, 313 (Tex . 1987)

    15 Elbaor, 845 S W 2d at 245.


    REPLY BRIEF ON THE MERITS OF PETITIONER                                                    PAGE 7
	




    instructions, and, as here, the spouse is in a deteriorating condition (confined to the couch

    and floor prior to the date of the death and on that day, confined to the bed and bleeding).

    The failure to do so may result in a worsened condition, and even death, as also occurred

    here, The unusual act of not returning to the hospital, to Dr . Trone's office, and/or failing

    to call Dr . 'hone (or Dr . Hani) as instructed verbally by Dr . Trone, and as covered with

    the nurse at discharge, plainly may cause harm and here, constituted an inherently

    harmful act,. Indeed, the testimony by Plaintiff's own expert was that it did cause harm,

    and that Mr . Jimenez would have survived if he had returned to the hospital 24 hours

    sooner .

               Again, Mrs . Jimenez testified that she received instructions from Dr . Trone and

    the nurse, she signed the discharge instructions at discharge, and she knew she was

    supposed to call Dr . Trone if Mr. Jimenez had an increase in pain or unrelieved pain,

    fever, or bleeding .. (4 RR 192) . Yet, despite that Mr . Jimenez displayed all of these

    conditions, she never called Dr . Trone, Dr, . Hani, or anyone else, and she never took Mr.

    Jimenez. to the emergency room . Thus, the foreseeability factor, as well as all other

    factors this Court examines in recognizing or creating a duty, support imposing a legal

    duty here,

           C.        Alternatively Mrs. Jimenez Assumed a IL,egal Duty to Coo a erate in
                     Her Husband's Care

                     1 . Mrs . Jimenez's Arguments Regarding Duties Owed to Her
                          Husband and to Diagnose His Condition are Irrelevant and
                          Provide No Guidance on the Issues Presented

           For the first time, Mrs . Jimenez now relies on the Restatement (Second) of Torts

    to argue that no assumption of a legal duty arises here, or that she had no "duty to

    REPLY BRIEF ON THE MERITS OF PETITIONER                                               PAGE 8
		




     diagnose" her husband . (Respondent's Brief on the Merits at 23-25), Mrs, Jimenez also

     argues that the duty to cooperate in the care applies to the patient and not to third parties

     such as herself . (Respondent's Brief on the Merits at 29 .30) . These arguments miss the

     import of the duty recognized by this Court within Elbaor and more recently, in Jackson,

     and the duty that Dr . Hani contends arises under these facts.

             First, Dr . Hani does not contend or even suggest that Mrs Jimenez owed a duty to

     diagnose her husband's condition,

             Second, Dr . Hani does not contend that Mrs . Jimenez is subject to liability to her

     husband's estate arising out of her negligence in complying with the discharge

     instructions, Accordingly, Respondent's arguments that she did not increase the risk of

     harm and that neither her husband nor Dr . Hani relied on her for any undertaking of the

     duty are misplaced and provide no assistance to this Court in determining the issues

     presented . 16

                       2.      Applying Elbaor and Jackson, This Court Should Extend the Duty
                               to Cooperate Here

              Finally, the duty this Court recognized in Elboar and in Jackson is that owed by

     the patient to his treating physician to cooperate in his care . 17 Whether this Court will


                See Torrington Co. v, Stutzman, 46 S ._W 3d 829, 837 (Tex . 2000) ; RESTATEMENT (SECOND) Or TOr2rS §
     16


     314 (1965) . Notably, in setting out the record evidence, Mrs Jimenez fails to cite to this Court her own testimony
     that she knew she was supposed to return to the ER or to call Dr . Trone, but she did not do so, despite her husband's
     condition which worsened over the six days following his discharge (Respondent's Brief on the Merits at 9-10, 23-
     25) . It is this evidence Dr . Rani contends supported submission of Mrs Jimenez's conduct to the jury within
     Questions Nos . 1 and 2

     €7        This Court explained in Jackson, that nothing within Elbow limits the duty to cooperate to only one aspect
     of medical care Jackson, 221 S W 3d 650, 654 (Tex . 2007) (involving duty of patient to provide accurate and
     complete medical history) This Court also recognized that there are cases in which a patient's condition is so
     obvious that cooperation is unnecessary, or so debilitating that it is impossible . Id But such cases do not suggest
     there should be no duty to cooperate . Id The issue then becomes whether the patient's condition discharges the
     patient's duty, See id

     REPLY BRIEF ON THE MERITS OF PETITIONER                                                                      PAGE 9
		




     extend that duty to another, or, alternatively, recognize that factual circumstances arise

     where the duty may be and has been assumed by another are the issues pending here.

     Mrs . Jimenez attempts to distinguish Elbow- by distorting this Court's analysis of the

     record evidence . Indeed, in Elbaor, this Court recognized that the issue of whether an

     infection existed at the time of admission and treatment by Dr . Elbaor was a "hotly

     contested issue," 's and that to support submission of the requested jury issue of Mrs.

     Smith's negligence, the record must have contained "some evidence that Ms . Smith's

     refusal to take antibiotics arguably preceded the onset of infection in her ankle ." '9 This

     Court ultimately concluded that some evidence (or legally sufficient evidence) was

     presented that no infection existed in Mrs . Smith's ankle on admission, such that the trial

     court should have submitted Mrs . Smith's negligence

            Mrs .Jimenez also argues that the mere fact she signed the discharge form is no

     evidence that she assumed a legally enforceable duty to make sure that her husband

     complied with the instructions or to otherwise monitor or "be responsible" for his well-

     being . (Respondent's Brief on the Merits at 25-26) . Dr. Ilani does not suggest that Mrs,

     Jimenez is legally responsible for her husband's well-being, Rather, Dr. Hani contends

     the record evidence shows that Mrs. .Jimenez assisted in compliance with physicians'

     orders and instructions in the past, that she sought medical care and treatment for her

     husband and cooperated with her husband's providers . As discussed in detail within his


            Elbaor, 845 S W 2d at 242

            Elbaor, 845 S W .2d at 243

     20
            Elbaor, 845 S W .2d at 244



     REPLY BRIEF ON THE MERITS           Or PETITIONER                                   PAGE I0
		




     Petition for Review, his Brief on the Merits, and incorporated here, legally sufficient

     evidence was presented that Mrs, Jimenez knew the import of the discharge instructions,

     she knew she was supposed to call Dr . Trone or return to the hospital if any of the

     conditions existed after discharge, Yet, she failed make the call or return to the hospital

     during the days that followed.

            Even Mrs, .lihenez. admits she was involved in compliance with the discharge

     instructions to a limited extent : "she actually helped the situation by accompanying her

     husband on three previous visits to the hospital, by picking up two prescriptions with her

     son, by calling 9-1-1 as soon as she thought there may be a problem, and by riding in the

     ambulance with Refugio on the date of his death ." (Respondent's Brief on the Merits at

     24), As this Court recognized in Jackson, many aspects of health care are a cooperative

     venture requiring active participation by both doctor and patient . Where, as here, the

     patient's condition deteriorates such that he can no longer comply with the discharge

     instructions, Mrs . Jimenez, who participated in his care throughout the course of

     treatment and signed those instructions, owed a duty to act reasonably in cooperating

     with the physicians who treated her husband by returning to the emergency room or by

     making a telephone call to report his symptoms, 21

            D.      Mrs . Jimenez Applies Incorrect Standard for Determining Conflicts
                    Jurisdiction

            Applying an incorrect standard, Mrs, Jimenez also argues that Schwing v

     Bluebonnet Express does not create a conflict for purposes of . jurisdiction . (Respondent's


     21
            See Jackson, 221 S W .3d at 654.



     REPLY BRIEI ON THE MERITS OF PETITIONER                                             PACE 11
		




     Brief on the Merits at 31) . However, the standard required for conflicts jurisdiction-that

     one court holds differently from another-is "when there is inconsistency in their

     respective decisions that should be clarified to remove unnecessary uncertainty in the law

     and unfairness to litigants'' 22 As discussed within Petitioner's Petition for Review and

     his Brief on the Merits, and incorporated here, an unnecessary uncertainty arises when

     here, a wrongful death beneficiary is allowed to benefit and profit from the death of the

     decedent for which, the expert testimony shows, she proximately caused or contributed to

     cause . Indeed, under the rationale of Schw ng, Mrs . Jimenez's negligence should have

     been determined and apportioned along with that of Dr . Hani, Dr . Trone, and Mr.

     Jimenez, as required by chapter 33 of the Texas Civil Practices and Remedies Code . If

     the jury concluded her conduct proximately caused or contributed to cause the death, her

     recovery should have been reduced by the associated percentage assigned by the jury .'

     Thus, Petitioner has sufficiently shown jurisdiction ., and this Court should grant review to

     consider these important issues.

            E.      Public Policy Supports Recognizing a Duty or Assumption of a Duty
                    or Extension of the Elbaor Du to Coo i crate Under These Facts

            Citing to invasion of privacy concerns, Mrs . Jimenez, who not only participated in

     her husband's informed consent decision before Dr .. Trove's surgery, but also talked with

     Dr. Trone when he visited Mr . Jimenez after the surgery and before discharge, as well as

     received the oral and written discharge instructions for her husband of many years, argues


     22
             Tax. Gov'T CODE ANN § 22 OO1(e).
     23
             See Garza v . Estate of Salinas, No 04-94-00516-CV, 1996 Tex App LE-XIS 5112 at *16 (Tex . App -
     San Antonio 1996, no writ) (not designated for publication).


     REPLY BRIEF ON THE MERITS OF PETITIONER                                                       PAGE 12
	




     that public policy does not support any duty here and further that the duty to cooperate

     only applies to patients . (Respondent's Brief' on the Merits at 29-30, 32-33).

     Commentators have observed that the courts now recognize patients' responsibility for ..

    their own health care needs . Only the patient can experience his own physical sensations

     and only the patient can convey this experience to the physician„ 24                  Informed consent is

     viewed as a patient's right and supports the patient's active participation in the physician-

    patient relationship . ''       The right to participate assumes the duty to cooperate with

    diagnosis and treatment to the best of the patient's ability, and similarly, patients' duty to

    cooperate parallels the composite duty of physicians to provide diagnosis and treatrnent,                    26


    As a result, various courts in other jurisdictions have concluded that the patient owes a

    duty to timely seek treatment and follow-up care, ''

               Indeed, at least one court has further extended the duty and recognized that under

    a wrongful death statute, the conduct of the parents of a 17-year old was properly

    submitted to the jury for a determination of their contributory negligence in connection

    with their failure to follow discharge instructions for their son's care after an emergency




              Sharon W Murphy, Contributo ry Negligence in Medical Malpractice Are the Standards Changing to
    Reflect Society's Growing Health Care Consumerism?, 17 DAYTON L. REV . 151, 173 (1991) (citing Fall v White,
    449 N .E. 2d 628, 633-34 (Ind . Ct App . 1983))
    25
              Id

    26
              Id

    '''       See Kurtis A . Kemper, Annotation, Contributory Negligence or Comparative Negligence Based on Failure
    of Patient to Follow Instructions as Defense in Action  Against Physician o Surgeon for Medical Malpractice, 84
    A .L . R 5'1 ' 619 (2003)



    REPLY BRIEF ON THE MERITS OF PETITIONER                                                              PAGE 13
		




     room visit, ' In Prnrteleo, the parents sued under Illinois' Wrongful Death Act, claiming

     damages arising out of the death of their son, Joseph, they claimed was the proximate

     result of an alleged misdiagnosis and medical malpractice committed by various

     physicians who examined him in the emergency room . Joseph was taken to the

     emergency room complaining of pain in the right shoulder and under the right armpit . He

     was assessed and neither the nurses nor the physicians did a workup for infection.

     Instead, Joseph was diagnosed with a shoulder strain, was prescribed medication and

     discharged . The discharge instructions given to the parents were to return to the

     emergency room if Joseph experienced any increased pain, numbness or weakness, .'

             During the days following, Joseph complained of fever, chills, and pain in his right

     arm . His mother testified she did not realize he was seriously ill until he was admitted to

     the hospital prior to his death . Joseph had a redness on his chest, complained of

     increased pain in his arm, and the redness extended the next day to his face . The

     following day, a red line appeared to be going up Joseph's arm and he was crying in pain.

     His mother took him back to the ER. He was admitted and died two days later, with a

     diagnosis of streptococcal toxic shock syndrome, secondary to cellulitis lymphangitis of

     the right upper extremity ; and acute renal failure secondary to sepsis .J °

             The jury considered the parents' conduct in failing to follow the discharge

     instructions to return to the ER, found the parents contributorily negligent and that their

     2
      8       Punta/co v. Our Lady of the Resurrection Med. Cir . , 297 I App 3d 266, 231 Ill Dec 421, 696 N E 2d
                                                                     II


     717 (1st Dist 1998), appeal denied, 179 Ill . 2d 589, 235 Ill Dec 567, 705 N E . 2d 440 (1998).

     29
             Pantaleo, 696 N .E 2d at 720

     30
             Panta/eo, 696 N . E-2d at 721



     REPLY BRIEF ON THE MERITS OF PETITIONER                                                           PAGE 14
	




    negligence was a proximate cause of Joseph's death, and the court of appeals affirmed

    the jury's finding? ' The court emphasized that upon discharge, the parents were told to

    return to the hospital with Joseph if he experienced increased pain, numbness or

    weakness .. Even though both parents testified that his pains increased over the weekend

    after discharge, they failed to return to the hospital until Monday . Additionally, they

    noticed redness on .Joseph's chest that extended to his face . A physician provided

    testimony that if Joseph had received antibiotics on Saturday, he probably would have

    survived' 2       The court concluded that the evidence supported the jury's finding of

    contributory negligence of the parents on their wrongful death claims . 33

             This Court has instructed that the common law is not frozen or stagnant, but

    evolving, and it is this Court's duty to recognize the evolution . 34                             This Court has

    consistently made changes in the common law of torts as the need arose in a changing

    society. 35 As patients and their caregivers increasingly participate in cooperating with

    patient care, so should this Court continue to recognize the associated duties existing

    between the physicians and health care providers and the patients and their caregivers.


    31
             Pantaleo, 696 N .E 2d at 728.

    32
             Pantaleo,   696   N F 2d at 728-29
    33
             Pantaleo, 696 N E. 2d at   729

    31
             See Otis Engineering Corp, ~'. Clark, 668 S W .2d 307, 310 (Tex . 1983)

    35
             See, e g , Sanchez v. Schindler, 651 S W 2d 249 (Tex, 1983) (recovery of loss of society and mental
    anguish allowed in response to needs of modem society) ; Parker v. Highland Park, Inc ., 565 S .W 2d 512 (Tex.
    1978) (landowner's duty owed to tenants extends to guests) ;    M    eKisson v Sales Affiliates, Inc ., 416 S W .2d 787
    (Tex . 1967) (strict liability in tort expanded to include defective products) ; Decker & Sons, Inc. v. Capps, 139 Tex
    609, 164 S . W .2d 828 (1942) (manufacturer of impure food liable for injuries in absence of negligence as a matter of
    public policy) ; Hill v. Kimball, 76 Tex 210, 13 S W, 59 (1890) (recognition of cause of action for infliction of
    emotional and mental distress)


    REPLY BRIEF ON THE MERITS OF PETITIONER                                                                     PAGE 15
	




    Extending the Elbcror duty to cooperate to those participating in the patient's care is

    required to reflect the changing needs of society, as demonstrated through these facts and

    as is played out in hospitals, clinics, and doctor's offices throughout the state on a daily

    basis . In discharging patients home to the care of their families may be the prudent

    course, when, as here, the family participates throughout the course of hospitalization in

    the loved one's care . Under these facts, it is reasonable for the physician or health care

    provider to assume that discharge instructions, as well as prescription and treatment

    instructions will be followed, and that future treatment will be sought in compliance with

    those instructions . Otherwise, a danger arises that wrongful death beneficiaries stand to

    recover a windfall where their own conduct is never considered in determining the

    conduct that proximately caused or' contributed to cause the decedent's death.

    Accordingly, this Court should exercise jurisdiction to consider these issues of

    importance to the jurisprudence of the state.

    HI . Reversal and Remand Required as a Result of Trial Court's Harmful Error

           Petitioner incorporates here his arguments regarding the harm shown through the

    record in the trial court's abuse of discretion in refusing to submit Mrs . .limenez's

    conduct in Questions Nos, 1 and 2. (See Petitioner's Brief on the Merits at 29-31)

    Contrary to Respondent's assertion, Petitioner was not allowed to present all its

    arguments concerning Mrs Jimenez's conduct to the jury . (See Respondent's Brief on

    the Merits at 29) . We have no way of determining what the jury would have done should

    it have considered Mrs. Jimenez's conduct, about which, even according to Respondent's




    REPLY BRIEF ON THE MERITS OF PETITIONER                                             PAGE 16
		




     counsel, it heard much testimony throughout the course of the trial .36      Accordingly,

     having shown an abuse of discretion that probably resulted in an improper verdict, or

     probably prevented Petitioner from presenting his appeal, this Court should exercise its

     jurisdiction, grant review, and upon consideration of the merits, reverse and remand for a

     new trial.

             WHEREFORE, PREMISES CONSIDERED, Petitioner Pedro P . Hani, M .D.,

     respectfully urges this Court grant his Petition for Review, set this matter for oral

     argument, and upon submission, reverse the Court of Appeals' Opinion and reverse and

     remand the case for a new trial . Petitioner also prays for such other and further relief,

     general or special, at law or in equity, as this Court deems ,just.




     36
            (5 CSR. 139, IL 13-21).



     REPLY BRIEF ON THE MERITS OF PETITIONER                                           PAGE 17
	




                                        Respectfully submitted,

                                         COOPER & SCULLY, P .C.




                                        By :	             -~
                                                R. BRENT COOPER
                                                Texas Bar No . 04783250
                                                DIANA L . FAUST
                                                Texas Bar No . 00793717
                                                MICHELLE E . ROBBERSON
                                                Texas Bar No . 16982900
                                                DEVON J . SINGH
                                                Texas Barr No . 24027260

                                        900 Jackson Street, Suite 100
                                        Dallas, Texas 7.5202
                                        TEL : (214) 712-9500
                                        FAX : (214) 712-9540

                                        COUNSEL FOR PETITIONER
                                        PEDRO P. HANI, M .D.




    REPLY BRIEF ON THE MERITS OF PETITIONER                                PAGE 18
	




                                 CERTIFICATE OF SERVICE

          I hereby certify that I served a true and correct copy of this Reply Brief on the
    Merits of Petitioner on the following counsel of record on the	      /J.__ day of May
    2009 by the method indicated:

    Mr„ Brian P . Lauten                                                     VIA CVIRR.R
    Sawicki & Lauten, L .L .P.
    4040 Central Expressway, Suite 850
    Dallas, Texas 75204
    Lead Counsel for Respondent

    Mr. James L . Mitchell                                                   VIA CMRRR
    Payne Mitchell Law Group
    2911 Turtle Creek Blvd ., l4t1 Floor
    Dallas, Texas 75219
    Co--Counsel for Respondent




    Dl738727 2




    REPLY BRIEF ON THE MERITS OI PETITIONER                                        PAGE 19

								
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