Houston Medical Negligence Attorney by gyq12940

VIEWS: 29 PAGES: 10

Houston Medical Negligence Attorney document sample

More Info
									                          No. 09-0581
   ____________________________________________________________

                 IN THE SUPREME COURT OF TEXAS
    ____________________________________________________________

MINNIE SHELTON INDIVIDUALLY AND AS REPRESENTATIVE OF THE
               ESTATE OF ANNIE MAE BROWN
                               Petitioner

                                vs.

THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON AND
  THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON
                  D/B/A JOHN SEALY HOSPITAL
                                    Respondent
   ____________________________________________________________

                      On Petition for Review from the
               Fourteenth Court of Appeals at Houston, Texas
    ____________________________________________________________

                    MOTION FOR REHEARING




                               JAMES E. SIMMONS & ASSOCIATES, P.C.
                               James E. Simmons
                               SBT No. 18367950
                               The Center, Suite 960
                               8303 Southwest Freeway
                               Houston, Texas 77074
                               (713) 771-5443 Telephone
                               (713) 771-5661 Facsimile

                               COUNSEL FOR PETITIONER
                                  ISSUES PRESENTED

       1.     Is UTMB, a governmental unit under the Texas Tort Claims Act with
              sovereign immunity as to medical negligence claims, also subject to the
              Medical Liability Act thus requiring the filing of an expert report 120 days
              after suit has been filed.

       2.     If the filing of an expert report was required, was the deadline to do so
              extended by the Agreed Docket Control Order.

       3.     Should Respondent and/or Respondent’s Attorneys be sanctioned for the
              filing of frivolous pleadings and pursuing a position not supported by the
              facts or the applicable case law.

       4.     In the event the holding by the Fourteenth Court of Appeals at Houston is
              correct, should the holding apply prospectively to avoid a substantial
              inequitable result.

TO THE HONORABLE SUPREME COURT OF TEXAS:

       Petitioner, MINNIE SHELTON INDIVIDUALLY AND AS

REPRESENTATIVE OF THE ESTATE OF ANNIE MAE BROWN, submits this

Motion For Rehearing regarding the Supreme Court of Texas’ denial of Petitioner’s

Petition for Review of the decision of the Fourteenth Court of Appeals at Houston,

which affirmed the trial court’s granting of the Respondent’s Motion To Dismiss

Pursuant To §74.351. Petitioner contends the Court of Appeals has erroneously

concluded that Petitioner has plead a claim under both the Texas Tort Claims Act and the

Medical Liability Act as to UTMB, and thus, Petitioner’s cause of action is a healthcare

liability claim requiring the timely filing of an expert report, which Petitioner failed to

do. Petitioner contends that the Court of Appeals has also erroneously concluded that



                                               1
the deadline to file such a report was not extended by the Agreed Docket Control Order

and erroneously concluded that Respondent should not be sanctioned for the filing and

pursuing of frivolous pleadings. Petitioner further contends that in the event this Motion

For Rehearing is denied, the Court of Appeals’ decision should be applied prospectively

to avoid a substantial inequitable result.

                                       ARGUMENT

       A.     This Court should exercise jurisdiction to resolve this first impression
              question that this case presents concerning whether a governmental
              unit sued under the Texas Tort Claims Act is also subject to the
              mandates of the Medical Liability Act since the holding by the Court of
              Appeals exposes governmental units to medical negligence claims under
              the Medical Liability Act, waiving sovereign immunity.

       1.     Petitioner Has Plead A Valid Wavier of Sovereign Immunity Claim Under
              The Texas Tort Claims Act and Not a Medical Negligence Claim Under
              Chapter 74 and thus, Chapter 74 Does Not Apply Since Governmental
              Units Have Sovereign Immunity As To Medical Negligence Claims

       The holding by the Fourteenth Court of Appeals at Houston is based on the

conclusion by the Court that Petitioner plead a claim under both the Texas Tort Claims

Act and the Medical Liability Act as to UTMB, and thus, Petitioner was obligated to

comply with both statutes.    If this holding is allowed to stand, then it means that

UTMB, an undisputed governmental unit, can in fact be sued for medical negligence

under the M edical Liability Act. Relying upon this holding, attorneys across this State

can now allege that the State of Texas has waived their sovereign immunity as to medical

negligence claims and that such claims can be pursued against a governmental unit as



                                              2
long as the Plaintiff complies with the Medical Liability Act. This is inconsistent with a

long line of cases holding that a governmental unit can not be sued for medical

negligence claims. See Franka v. Velasquez, 216 S.W.3d 409, 412 (Tex.App.-San

Antonio 2006, pet. filed) (holding that a claim for medical negligence is not a claim

encompassed by the Texas Tort Claims Act); see also Williams v. Nealon, 199 S.W.3d

462, 465 (Tex.App.-Houston [1st Dist.] 2006, pet. filed) (claim for medical negligence

not encompassed by the Tort Claims Act's limited waiver of sovereign immunity). Trial

Courts will be faced with the difficult dilemma of trying to submit a jury charge that

complies with both the Texas Tort Claims Act and the M edical Liability Act against

governmental units. The Court’s holding bars Petitioner’s claim but will expose the State

to millions of dollars in future medical negligence claims against governmental units.

       The Court’s opinion is inconsistent with the Texas Supreme Court’s holding in

Overton Memorial Hospital v. McGuire, 518 S.W.2d 528 (Tex. 1975) which held that a

governmental unit can be sued solely under the Texas Tort Claims Act for use, and

misuse of a hospital bed. Petitioner’s allegations against Respondent are consistent with

the allegations made in Overton, and per the Texas Supreme Court, such allegations do

in fact state a claim under the Texas Tort Claims Act. Applying the Court of Appeals

reasoning to the facts in Overton would result in a holding that the allegations in Overton

allege a medical negligence cause of action. The Texas Supreme Court has not over-

ruled Overton. Thus, Petitioner at the time this lawsuit was filed, had a right to rely upon



                                             3
Overton in deciding how to plead this lawsuit.

       The Court of Appeals’ decision does away with the long history of cases

regarding “Election of Remedies.” See Tex. Civ. Prac. & Rem.Code Ann. § 101.106

(Vernon 2005). As previously stated, the purpose of section 101.106 is to force a

plaintiff to choose whether he will seek to impose tort liability on a governmental unit or

on governmental employees, individually. Waxahachie Indep. Sch. Dist. v. Johnson, 181

S.W.3d 781, 785 (Tex.App.-Waco 2005, pet. filed). The court of appeals’ opinion in the

case at bar is inconsistent with this long history of cases regarding election of remedies

under the Texas Tort Claims Act and would require overruling this long history of cases.

If allowed to stand, the Court of Appeals’ decision does away with the election of

remedies requirements. Instead, a litigant would have an option of suing the

governmental unit or the governmental unit’s employees or both for medical negligence.

       To be consistent with the Texas Supreme Court’s holdings related to these issues

and the mandates of the Texas Legislature, the more reasonable conclusion should be

that since the State has sovereign immunity as to medical negligence claims, then as a

matter of law, the Medical Liability Act does not apply to a governmental unit.     It

follows that the filing of an expert report pursuant to the Medical Liability Act is not

required when a Plaintiff is pursuing a claim under the Texas Tort Claims Act against a

governmental unit. The legislature has mandated that governmental units can not be sued

for medical negligence. Thus, since governmental units, such as Respondent, can not be



                                              4
sued for medical negligence, why would there be a need for the legislature to mandate

that Chapter 74, the Medical Liability Act, apply to governmental units? There is no

logic to such a contention and the holding is inconsistent with established Texas law.




       2.     The Agreed Docket Control Order Extended The Deadline To File Expert
              Reports


       Respondent authored the Agreed Docket Control Order. Respondent failed to

place any limiting language in the Agreed Docket Control Order (“DCO”) regarding the

expert report deadline not including the reports required under the Medical Liability Act

despite taking the position that this case is subject to the Medical Liability Act. One

interpretation of the DCO is that the expert designation deadline applied to the filing of

all expert reports and another interpretation is that it applied to all expert reports except

the filing of the expert report required under the Medical Liability Act. This created an

ambiguity. Where an instrument is open to two reasonable constructions, it will be

construed against its author. Houston Pipe Line Co. v. Dwyer, 374 S.W.2d 662, 665

(Tex.1964); Universal C.I.T. Credit Corp. v. Daniel, 243 S.W.2d 154 (1951). This rule of

law should especially apply in the case at bar since Respondent’s Attorney is the State

Attorney General, the top Attorney in the State of Texas. Litigants should not be tricked

into waiving their legitimate rights especially by the top Attorney in the State of Texas.



                                               5
The Court should lean over backwards to preserve the litigant’s rights to avoid a

substantial inequitable result.

          3.     The Trial Court Erred in Denying Petitioner’s Motion For Sanctions For
                 The Filing of Frivolous Pleadings.

          It is common knowledge that UTMB does great things for the community. It is

also common knowledge that UTMB has severe financial problems. However, bias and

prejudice should not come into play as to the verdict or holding of any lawsuit. How can

Petitioner be required to comply with the Medical Liability Act when at the time this

lawsuit was filed, governmental units could not be sued for medical negligence? This

logic is being ignored by the Respondent and thus, Respondent should be sanctioned.

          4.     The Holding by the Court of Appeals is a case of first impression and
                 creates new law as to governmental units and thus, the holding should be
                 applied prospectively to avoid a substantial inequitable result.

          The general rule is that decisions of the supreme court apply retrospectively.

Bowen v. Aetna Cas. & Sur. Co., 837 S.W.2d 99, 100 (Tex.1992); Elbaor v. Smith, 845

S.W.2d 240, 250 (Tex.1992). The decision of whether a supreme court case applies only

prospectively lies within the discretion of the supreme court. See Lohec v. Galveston

County Comm'rs Court, 841 S.W.2d 361, 366 (Tex.1992). In Lohec, the supreme court

stated:

          Our decisions operate retroactively unless this court exercises its discretion to
          modify that application. When determining whether to exercise our discretion to
          modify retroactive application, this court weighs, among other things,
          considerations of fairness, equity and policy including whether the decision
          involves an issue of first impression and whether retroactive application could

                                                 6
       produce substantial inequitable results.
       Id. (citations omitted).


       This is a case of first impression. At the time suit was filed against UTMB, there

were no cases holding that a Plaintiff, based on the same or similar facts, had to comply

with both the Texas Tort Claims Act and the Medical Liability Act. Overton, a Texas

Supreme Court decision, was valid law holding that the facts of this case established a

claim solely under the Texas Tort Claims Act. Thus, applying this case retroactively

produces a substantial inequitable result especially when considering that it is alleged that

the Decedent, Petitioner’s Mother, died as a result of the negligence of UTMB and the

undersigned Attorney’s client did nothing to contribute to the reasons why this case is

being dismissed. For these reasons, Petitioner prays that in the event the Court denies this

Motion For Rehearing, that the Court exercises the Court’s discretion and applies this

decision prospectively.

                                          PRAYER

       WHEREFORE, PREMISES CONSIDERED, Petitioner prays that this Court

grants Petitioner’s Motion For Rehearing, reverse the Court of Appeal’s decision

affirming the trial court’s order dismissing this lawsuit, reverse the trial court’s order

denying Petitioner’s Motion For Sanctions, remand this case back to the trail court for

further proceedings and in the event the Court denies this Motion For Rehearing, that the

Court exercises the Court’s discretion and applies this decision prospectively.



                                               7
Respectfully submitted,

JAMES E. SIMMONS & ASSOCIATES, P.C.




James E. Simmons
TBN: 18367950
The Center, Suite 960
8303 Southwest Freeway
Houston, Texas 77074
713/771-5443 (TEL)
713/771-5661 (FAX)
COUNSEL FOR PETITIONER




          8
                            CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing was
forwarded to all known counsel of record listed below in the manner indicated pursuant to
the Texas Rules of Appellate Procedure on this the             day of September, 2010.


CERTIFIED MAIL-RRR
Jason Warner
Assistant Attorney General
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548


                                                      James E. Simmons




                                            9

								
To top