IN RE TOMBALL TEXAS HOSPITAL COMPANY, LLC D/B/A TOMBALL REGIONAL MEDICAL CENTER, Relator
Original Proceeding on Petition for Writ of Mandamus
consists of Justices Keyes, Kelly, and Goodman.
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. 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
the respondent has not ruled on the motions within a
reasonable time, under the circumstances, we conditionally
grant the petition.
Procedural History in the Trial Court
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.
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.
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.
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.
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.
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
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 ...