NO. 05-11-01376-CV ACCEPTED 225EFJ016744520 FIFTH COURT OF APPEALS DALLAS, TEXAS 12 February 24 A10:54 Lisa Matz CLERK IN THE COURT OF APPEALS FOR THE FIFTH COURT OF APPEALS DISTRICT AT DALLAS TAMARA ROBISON, APPELLANT vs. TEXAS HEALTH RESOURCES, INC. d/b/a TEXAS HEALTH PRESBYTERIAN HOSPITAL ALLEN a/k/a TEXAS HEALTH ALLEN APPELLEE APPEALED FROM THE 199 TH JUDICIAL DISTRICT COURT OF COLLIN COUNTY, TEXAS CAUSE NO. 199-01101-2010 APPELLEE S BRIEF ALAN CAMPBELL & ASSOCIATES, P.C. Alan L. Campbell State Bar No. 03692700 Wendy A. McMillon State Bar No. 00790100 5900 South Lake Forest Drive, Suite 200 McKinney, Texas 75070 Telephone: (972) 632-1390 Facsimile: (972) 632-1391 ATTORNEYS FOR DEFENDANT TEXAS HEALTH RESOURCES, INC. d/b/a TEXAS HEALTH PRESBYTERIAN HOSPITAL ALLEN a/k/a TEXAS HEALTH ALLEN
TABLE OF CONTENTS Table of Authorities... ii I. Statement Regarding Oral Argument... 1 II. Statement of the Case... 1 III. Statement of the Facts... 3 IV. Issues Presented for Review Issue No. 1: Did the trial court err in granting summary judgment?... 5 Issue No. 2: Did the trial court err in granting noevidence motion for summary judgment?... 5 V. Reply Points Reply Point No. 1: The trial court did not err in granting summary judgment because Appellee failed to correct party defects... 6 Reply Point No. 2: The trial court did not err in granting Appellee s no-evidence motion for summary judgment... 6 VI. Summary of the Argument... 6 VII. Argument and Authorities A. The Standard of Review... 7 B. The trial court did not err in granting Appellee s motion for summary judgment... 8 1. Suing a d/b/a is not the same as suing the entity itself... 8 2. Cummings v. HCA is not applicable... 10 C. There is no evidence THR provided the health care at issue in this case... 13 VIII. Conclusion... 15 IX. Prayer... 15 Certificate of Service... 16 i.
TABLE OF AUTHORITIES Cases Bailey v. Vanscot Concrete Co., 894 S.W. 2d 757 (Tex. 1995)... 12 Cathey v. Booth, 900 S.W.2d 339 (Tex. 1995)... 14 Cummings v. HCA Health Services of Texas, Inc., 799 S.W. 2d 403 (Tex.App. Houston [14 th Dist.] 1990)... 10, 11 Day v. Harkins & Munoz, 931 S.W. 2d 278 (Tex.App. Houston [1 st Dist.] 1997)... 14 Denton Regional Medical Center v. LaCroix, 947 S.W. 2d 941 (Tex.App. Ft. Worth 1997)... 14 Dow Chemical Co. v. Francis, 46 S.W. 3d 237 (Tex. 2001).. 8 Drury v. Baptist Memorial Hosp. System, 933 S.W. 2d 668 (Tex.App. San Antonio, 1996)... 14 FM Properties Operating v. City of Austin, 22 S.W. 3d 868 (Tex. 2000)... 8 IHS Cedars Treatment Ctr of DeSoto, Texas, Inc. v. Mason, 143 S.W. 3d 794 (Tex. 2004)... 7 KM-Timbercreek v. Harris County Appraisal, 312 S.W. 3d 722 (Tex.App. Houston [1 st Dist.] 2009)... 10 Little v. Texas Dept. of Criminal Justice, 148 S.W. 3d 374 (Tex. 2004)... 7 National Med. Enterprises of Texas v. Wedman, 676 S.W. 2d 712 (Tex. 1984)... 8 Smith v. Mosbacker, 94 S.W. 3d 292, (Tex.App. Corpus Christi-Edinburg, 2004)... 14 Valence Operating Co. v. Dorsett, 164 S.W. 3d 656 (Tex. 2005)... 8 ii.
Statutes TEX. CIV. PRAC. & REM. CODE ANN. 74.001(a) (11) (G)... 14 TEX. CIV. PRAC. & REM. CODE ANN. 74.001 (12) (A) (i)... 14 TEX. CIV. PRAC. & REM. CODE ANN. 74.001 (13)... 14 TEX. CIV. PRAC. & REM. CODE 74.051(b)... 12 TEX. R. CIV. P. 28... 9, 10 TEX. R. CIV. P. 166a(c)... 7 TEX. R. CIV. P. 166a(i)... 7 iii.
TO THE HONORABLE JUSTICES OF THE COURT: Appellee Texas Health Resources, Inc.,(hereinafter referred to as THR or Appellee ) respectfully submits Appellee s Brief on Appeal from the Order Granting Defendant s Motion for Summary Judgment entered by the Honorable Robert T. Dry, Jr. in the 199 th Judicial District Court, Collin County, Texas, under Cause No. 199-01101- 2010, in which the Plaintiff was Tamara Robison (hereinafter, Appellant ), and the Defendant was named as Texas Health Resources, Inc. d/b/a Texas Health Presbyterian Hospital Allen a/k/a Texas Health, (see the Clerk s Record, hereinafter referred to as CR, at 158). I. STATEMENT REGARDING ORAL ARGUMENT Appellee believes oral argument would assist the Court in determining important issues involving the misidentification of related health care entities. Therefore, Appellee requests oral argument pursuant to TEX. R. APP. P. 39.1 II. STATEMENT OF THE CASE This appeal arises from a health care liability claim filed by Tamara Robison on November 7, 2009, regarding care 1
and treatment provided to her at Texas Health Presbyterian Hospital Allen on November 6, 2007. Robison wrongly named the Defendant as Texas Health Resources, Inc. d/b/a Texas Health Presbyterian Hospital Allen a/k/a Texas Health. Appellee promptly filed a verified denial which notified the Appellant that there was a defect in the parties, and Texas Health Resources does not do business as Texas Health Presbyterian Hospital Allen or Texas Health Allen. Appellee also responded to the Plaintiff s Requests for Disclosures and indicated that Texas Health Resources does not do business as Texas Health Presbyterian Hospital Allen or Texas Health Allen. Texas Health Resources did not provide any of the health care at issue herein, nor did it employ the caregivers that did. The correct name of the hospital is: Texas Health Presbyterian Hospital Allen, f/k/a Presbyterian Hospital of Allen. Appellant never corrected the defect in the parties. Therefore, Appellee filed its Motion for Summary Judgment that was properly granted by the trial court in this case. Appellant had no evidence that Appellee owed a duty to her, breached that duty, or was the proximate cause of her 2
injuries. The summary judgment granted by the trial court should be upheld on appeal. III. STATEMENT OF THE FACTS Appellant filed a health care liability claim in this case against Texas Health Resources, Inc., d/b/a Texas Health Presbyterian Hospital Allen a/k/a Texas Health Allen on November 6, 2009. (CR. 14-16). The case relates to care and treatment she contends was negligent and was rendered to her at Texas Health Presbyterian Hospital Allen ( THPHA ). Appellee promptly notified the Appellant after being served with this suit that she had sued the wrong party. On November 24, 2009, THR filed a verified denial and specifically answered that: (CR. 20-27). Defendant THR is not liable in the capacity in which it is sued. Specifically, Texas Health Resources does not do business as Texas Health Presbyterian Hospital Allen or Texas Health Allen, is not a hospital as alleged in Plaintiff s Original Petition, is not responsible for the acts or omissions of any agents or employees of Texas Health Presbyterian Hospital Allen and did not provide any of the healthcare at issue in this case. 3
This specific denial was also verified by the Affidavit of Don Collins, attached on page 8 of the Defendant s Answer. (CR. 27). THR also specifically stated in its Responses to Requests for Disclosures on July 23, 2010 that Texas Health Resources does not do business as Texas Health Presbyterian Hospital Allen or Texas Health Allen. Texas Health Resources did not provide any of the health care at issue herein, nor did it employ the caregivers that did. The correct name of the hospital is: Texas Health Presbyterian Hospital Allen, f/k/a Presbyterian Hospital of Allen. (CR. 67). Appellant failed to correct the defect in parties. On May 11, 2011, Appellee filed its Motion for Summary Judgment on the grounds that since the Plaintiff sued Texas Health Resources, Inc., d/b/a Texas Health Presbyterian Hospital Allen a/k/a Texas Health Allen, she had only sued THR, and not THPHA who provided the care and treatment to the patient in this case. (CR. 43-81; CR. 46). THR was not the entity that provided health care to Robison, and did not employ any of the caregivers who treated this patient (CR. 45). 4
Appellant put on no evidence that THR owed or breached any duty to the Plaintiff, or was the proximate cause of any of her alleged injuries in this case. (CR. 48). The trial court agreed and granted THR s Motion for Summary Judgment (CR. 158). Appellee would show that the trial court did not err in granting summary judgment, and the judgment should be affirmed. IV. ISSUES PRESENTED FOR REVIEW Issue No. 1: Did the trial court err in granting summary judgment and completely dismissing Robison s claims due to alleged misidentification when Robison sued d/b/a Texas Health Presbyterian Hospital Allen and not simply Texas Health Presbyterian Hospital Allen? Issue No. 2: Did the trial court err in granting THR s noevidence motion for summary judgment on Robison s medical malpractice claims or did she at least present a scintilla of evidence in the form of uncontroverted medical expert testimony supporting her claims? 5
V. REPLY POINTS Reply Point No. 1: The trial court did not err in granting Appellee s motion for summary judgment because the Appellant did not timely correct the defect in parties. Reply Point No. 2: The trial court did not err in granting Appellee s motion for summary judgment because there is no evidence THR provided the health care at issue in this case, breached any duty to the Appellant, or proximately caused any of her alleged injuries in this case. VI. SUMMARY OF THE ARGUMENT The trial court did not err in granting Appellee s motion for summary judgment because the Appellant sued Texas Health Resources, and not Texas Health Presbyterian Hospital Allen. THR did not perform the health care at issue in this case, and did not employ the health care providers who did. Appellant was given ample opportunity to correct the defect in parties prior to the statute of limitations expiring. Appellant failed to do so. Therefore, this is not a typical misidentification case where the other party eventually tried to fix the error. Appellant failed to remedy the problem, left the 6
wrong party as the Defendant in this case, and summary judgment in favor of the Appellee was entirely appropriate, and should be affirmed on appeal. VII. ARGUMENT AND AUTHORITIES A. THE STANDARD OF REVIEW Appellee presented its motion for summary judgment as a hybrid motion, with grounds for both a traditional motion for summary judgment, and grounds for a no-evidence motion for summary judgment. Summary judgment is proper pursuant to TEX. R. CIV. PROC. 166a(c) when there is no genuine issue regarding any material fact. Little v. Texas Dept. of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). A defendant moving for summary judgment must either disprove at least one element of the plaintiff s cause of action, or plead and establish each element of an affirmative defense that rebuts the plaintiff s claim. IHS Cedars Treatment Center of DeSoto, Texas, Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2000). In addition, Appellant had the burden of proof to raise a fact issue in response to THR s no-evidence motion for summary judgment on each of the elements challenged in the motion for summary judgment. TEX. R. CIV. PROC. 166a(i); 7
and Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). A trial court s summary judgment decision is subject to de novo review. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When the court grants summary judgment without specifying the grounds, the court must affirm if any of the grounds presented are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2000). B. THE TRIAL COURT DID NOT ERR IN GRANTING APPELLEE S MOTION FOR SUMMARY JUDGMENT BECAUSE THE APPELLANT DID NOT TIMELY CORRECT THE DEFECT IN PARTIES. 1. Suing a D/B/A is Not the Same as Suing the Entity Itself The Appellant claims that suing an entity with the d/b/a prefix is the same as suing that entity directly. See Appellant s Brief at p. 4. This is incorrect. The Appellee correctly noted in its Motion for Summary Judgment that pursuant to National Medical Enterprises v. Wedman, 676 S.W.2d 712, 714 (Tex. App.--El Paso 1984, no writ), a d/b/a" designation does not make the entity a party to the lawsuit or judgment, but merely indicates name under which defendant is alleged to operate. 8
Texas Health Resources never operated as Texas Health Presbyterian Hospital Allen, and conversely Texas Health Presbyterian Hospital Allen never did business as Texas Health Resources. Appellee s summary judgment evidence included Certificates of Fact for Texas Health Resources and Texas Health Presbyterian Hospital Allen, which included a list of all the assumed named certificates for those entities on file with the Secretary of State s Office. (CR. 78-79; and 81). The entities never did business as one another, and had no assumed name certificates on file to indicate that they did. Id. The only named entity in this suit was Texas Health Resources. Despite being provided with adequate notice that she had not sued the proper entity, Appellant took no action to add THPHA as a party to this suit. Rather, it was only after the Defendant filed its Motion for Summary Judgment that Appellant even raised the issue about possibly substituting in THPHA as a party in place of THR pursuant to TEX. R. CIV. P. 28. (CR. 87-103). However, Appellant never sought a ruling on its Rule 28 Motion. Summary Judgment was entered, this issue was never 9
pursued while the trial court still had plenary power in this case, and the judgment became final. (CR. 158). Rule 28 of the TEX. R. CIV. P. provides that when a party has sued a legitimate d/b/a, you may substitute in the true legal name of the party upon a party or court s own motion. Again, that is not the scenario here. THR does not, and has never done business as THPHA. Rule 28 of the TEX. R. CIV. P. is not applicable, as it is only applicable when there is a showing that the named entity is, in fact, doing business under that common name. KM- Timbercreek, LLC v. Harris Cty. Appr. Dist., 312 S.W.3d 722, 730 (Tex.App. Houston [1 st Dist.] 2009, no pet.). Nevertheless, Appellant never pursued this issue, set her motion for hearing, or obtained a ruling before the judgment became final in this case. Again, the court should not correct Appellant s error which could have been corrected had due diligence been used. 2. Cummings v. HCA is Not Applicable to the Facts of This Case Appellant contends in her Appellate Brief that the case of Cummings v. HCA Health Services of Texas, Inc., 799 S.W.2d 403 (Tex. 1990) is instructive in this appeal. Appellee disagrees. In Cummings, the appellants argued 10
that where a hospital was originally named in a suit as Hospital Corporation of America d/b/a Tidelands General Hospital and later named in the suit as HCA Health Services, Inc. d/b/a Tidelands General Hospital, there were material issues of fact on whether the proper party had notice and limitations should have been tolled. This case is not at all similar to Cummings. First, it is unclear whether there were assumed name certificates on file for the various entities in the Cummings case that would have shown the hospital was doing business under the various assumed names at issue in that case. That is not the situation here. Appellee s summary judgment evidence clearly showed that Texas Health Resources never did business as Texas Health Presbyterian Hospital Allen. (CR. 78-79; and 81). Also, in Cummings, the appellants actually amended their Petition to add the proper party after being notified there was a defect in the parties. That was never done in this case. Suit was filed by Appellant on November 7, 2009. (CR. 14-16). Appellant was provided with ample notice that there was a defect in parties, both by Defendant s verified denial filed on November 24, 2009, and 11
by Defendant s disclosure responses filed on July 23, 2010. (CR. 20-27; and CR. 67). The Texas Supreme Court noted in Bailey v. Vanscot Concrete Co., 894 S.W.2d 757 (Tex. 1995), that there is a key distinction when a party fails to amend his petition to add the correct party as a defendant. In Bailey, when the correct party was never added to the case, the Court instead found that while there may have been an equitable estoppel argument available, the proper party was never added, and the Court would not subsequently correct the party s error by retroactively substituting in the correct party on appellant s behalf. Id. Appellant was promptly notified she had not sued the proper party in this case. She was even notified sufficiently before limitations expired in this case pursuant to 74.051(b) of the TEX. CIV. PRAC. & REM. CODE. Appellant was first notified of the defect on November 24, 2009 and limitations did not expire until January 19, 2010. (CR. 139-140). Appellee should not be punished for the Appellant s failure to use due diligence in pursuing the proper party. Even after summary judgment was filed, Appellant failed to timely or properly pursue her Rule 28 12
Motion. Again, this lack of diligence is not attributable to the Appellee. Appellant never sued the proper party, and failed to correct the error even when she had ample opportunity to do so before limitations expired. Therefore, summary judgment was proper. C. THERE IS NO EVIDENCE THR PROVIDED THE HEALTH CARE AT ISSUE IN THIS CASE, BREACHED ANY DUTY TO THE APPELLANT, OR PROXIMATELY CAUSED ANY OF HER ALLEGED INJURIES IN THIS CASE As stated above, this issue is one which could have been remedied by the Appellant before limitations expired, and certainly before the judgment became final. Appellant argues that she has provided more than a scintilla of evidence that THR was negligent in this case. Appellee disagrees. She points largely to the expert report of David Countryman, M.D. regarding this issue. Countryman s report at CR. 126-127 refers to Presbyterian Hospital of Allen. (CR. 126). It also refers to allegations against hospital personnel. Again, THR was a hospital system and did not employ the hospital personnel who treated Ms. Robison. A defendant who conclusively negates at least one essential element of each of the plaintiff s causes of 13
action is entitled to summary judgment. See Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). In order to avoid summary judgment on its negligence claim against THR, Plaintiff was required prove each of the following essential elements for a cause of action for medical negligence (i.e. a health care liability claim ): (1) Defendant had a duty to act according to specific standards of care; (2) Defendant breached its duty, that is, Defendant did not conform to the required standard of care; (3) Defendant s breach was the proximate cause of; (4) Plaintiff s injury or damages. See Tex. Civ. Prac. & Rem. Code Ann. 74.001(a)(11)(G), (12)(A)(i) & (13); Smith v. Mossbacker, 94 S.W.3d 292, 295 (Tex. App. Corpus Christi 2002, no pet.); Day v. Harkins & Munoz, 961 S.W.2d 278, 280 (Tex. App. Houston [1 st Dist.] 1997, no writ); Denton Reg l Med. Ctr. v. LaCroix, 947 S.W.2d 941, 950 (Tex. App. Fort Worth 1997, writ denied); Drury v. Baptist Mem l Hosp. Sys., 933 S.W.2d 668, 672 (Tex. App. San Antonio 1996, writ denied). 14
Appellant conclusively negated that it provided any care to Tamara Robison, and neither owed nor breached any duty to her. Therefore, summary judgment was appropriate. VIII. CONCLUSION Appellant was put on notice of the defect in parties before limitations expired. She failed to amend her pleadings, or pursue the proper party. Thereafter, the trial court properly granted Appellee s motion for summary judgment because Appellee never provided the health care at issue in this case. Texas Health Resources neither owed, nor breached any duty to Appellant and was not the proximate cause of her injuries. Therefore, the trial court s judgment in this case should be affirmed. IX. PRAYER WHEREFORE, Appellee requests that this Court affirm the judgment of the trial court and award any further relief to which Appellee may be justly entitled. 15
Respectfully submitted, ALAN CAMPBELL & ASSOCIATES, PC By: /s/ Alan L. Campbell State Bar No. 03692700 Wendy A. McMillon State Bar No. 00790100 5900 South Lake Forest Dr. Suite 200 McKinney, Texas 75070 Telephone: (972) 632-1390 Facsimile: (972) 632-1391 ATTORNEYS FOR DEFENDANT TEXAS HEALTH RESOURCES,INC. CERTIFICATE OF SERVICE I hereby certify that a copy of Appellee s Brief was served on Appellant through her attorney of record, identified below, by certified mail, return receipt requested, on February 24, 2012: RIOJAS LAW FIRM, PC Robert E. Riojas State Bar No. 00791531 2035 Grant Ave. El Paso, Texas 79930 Telephone: (915) 755-4900 Facsimile: (915) 759-8665 /s/ Alan L. Campbell 16