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In re Tomball Texas Hospital Co.

Court of Appeals of Texas, First District

July 30, 2019

IN RE TOMBALL TEXAS HOSPITAL COMPANY, LLC D/B/A TOMBALL REGIONAL MEDICAL CENTER, Relator

          Original Proceeding on Petition for Writ of Mandamus

          Panel consists of Justices Keyes, Kelly, and Goodman.

          MEMORANDUM OPINION

          PER CURIAM

         Relator, Tomball Texas Hospital Company, LLC d/b/a Tomball Regional Medical Center ("TTHC"), filed a petition for a writ of mandamus seeking to compel the respondent district judge to rule on TTHC's pending "Amended Objections to Plaintiffs' Chapter 74 Expert Report and Motion to Dismiss," real party in interest Dr. Adrian Santamaria's "Motion for Interlocutory Summary Judgment," which TTHC joined, and TTHC's "Amended Traditional Motion for Summary Judgment" in the underlying proceeding.[1] This Court requested a response, and the real parties in interest filed an untimely one consenting to the relief sought by TTHC for the respondent to rule on the motions, but not to direct respondent how to rule on them.

         Because the respondent has not ruled on the motions within a reasonable time, under the circumstances, we conditionally grant the petition.

         Background

         A. Procedural History in the Trial Court

         On December 15, 2016, real parties in interest ("RPIs") George Pickering II ("Father") and George Pickering III ("Son") filed their original petition in Harris County alleging negligent representation and fraud claims against RPI Dr. Santamaria and a respondeat superior claim against relator TTHC, contending that it was vicariously liable for Dr. Santamaria's misrepresentations and negligence because he was employed by TTHC. RPIs Father and Son then filed their amended petition on January 16, 2017, raising the same negligent representation and fraud claims against RPI Dr. Santamaria, but elaborating on the negligent representation claim, and alleging the same respondeat superior claim against relator TTHC. The Amended Petition conceded that these claims are all health care liability claims by stating that notices of health care liability claims were served on RPI Dr. Santamaria and relator TTHC on June 30, 2016.

         Father contends that RPI Dr. Santamaria incorrectly diagnosed his Son, who was admitted to TTHC for a stroke on January 8, 2015, as not yet brain dead, but with a poor prognosis regarding neurological deficit, and that there was a small window for Son to pass away peacefully by removing life support, rather than remain in a vegetative state. Father claims that, when Son's brother told him that he needed to come to see Son because the hospital was going to remove Son's life support, Father showed up at TTHC with a gun to try to prevent the removal of Son's life support. Father surrendered to police and was arrested, and he was later prosecuted and incarcerated for several months, which he contends was all proximately caused by Dr. Santamaria's misdiagnosis because Son was not brain dead at that time.

         RPIs Father and Son served an expert report from Dr. George A. Lopez on RPI Dr. Santamaria and relator TTHC, as required by Texas Civil Practice and Remedies Code § 74.351, on June 7, 2017. That was timely served within 120 days of the filing of RPI Dr. Santamaria's answer on February 7, 2017, and relator TTHC's answer on February 10, 2017.

         On June 13, 2017, RPI Dr. Santamaria timely filed his "Objection to Plaintiffs' Expert Report and Motion to Dismiss," and relator TTHC timely filed its similar "Objections to Plaintiffs' Chapter 74 Expert Report and Motion to Dismiss," on June 28, 2017, within 21 days of service of the expert report. Both motions to dismiss attacked Dr. Lopez's report as inadequate because it failed to set out the statutorily-required applicable standard of care, any breach of a standard of care, and the causal relationship between any acts or omissions and the injury, harm, or damages claimed by RPIs Father and Son. On August 9, 2017, TTHC filed its "Amended "Objections to Plaintiffs' Chapter 74 Expert Report and Motion to Dismiss." Both TTHC's amended motion and RPI Dr. Santamaria's motion to dismiss were set for a hearing on August 14, 2017, along with RPI Dr. Santamaria's "Motion for Interlocutory Summary Judgment," which he had filed on June 13, 2017. On July 7, 2017, relator TTHC joined in RPI Dr. Santamaria's interlocutory summary judgment motion, which contended that RPIs Father and Son could not prove that RPI Dr. Santamaria's prognosis was the proximate cause of Father's criminal episode or, by extension, that TTHC was vicariously liable for RPI Dr. Santamaria.

         On July 24, 2017, after filing responses to the motions to dismiss and for interlocutory summary judgment, RPIs Father and Son filed a Second Amended Petition keeping the same three claims, but adding a retaining-control claim against relator TTHC. On August 14, 2017, the respondent conducted an oral hearing on relator TTHC's amended motion to dismiss and RPI Dr. Santamaria's motions to dismiss and for interlocutory summary judgment, but no ruling was made on any of the motions.

         On November 16, 2017, relator TTHC filed its "Amended Traditional Motion for Summary Judgment" contending that all claims should be dismissed against TTHC because it was not vicariously liable for RPI Dr. Santamaria, who was not TTHC's agent or otherwise under TTHC's control at the time of the incident. After RPIs Father and Son responded, the respondent conducted an oral hearing on relator TTHC's "Amended Traditional Motion for Summary Judgment" on January 25, 2018, but no ruling was made by respondent.

         Since the August 14, 2017 and January 25, 2018 motion hearings, relator TTHC has emailed or filed requests for rulings from the respondent on its motions to dismiss and for summary judgment eleven different times from February 2018-December 2018, but the respondent has yet to rule. These requests included emails or calls by TTHC on February 21 and 27, March 20, April 17, May 9, and July 3, 2018, to the trial court coordinator, through filing an "Agreed First Motion for Continuance" on March 19, 2018, and another "Motion for Continuance and Request for Ruling" on September 24, 2018, explaining that it was impossible to prepare for trial due to the stay of discovery imposed by the motions to dismiss, which were ...


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