RESPONSE TO DEFENDANT’s REPLY AND OBJECTION TO OPPOSED FIRST MOTION FOR EXTENSION OF TIME TO PROVIDE PLAINTIFF’s EXPERT REPORT
Originally Published: Mar 2, 2023 | Republished: Mar 2, 2023
“Bruce’s discharge was authorized by an imposter who was neither a psychiatrist nor a physician. The “doctor” was eventually convicted and imprisoned for perjury and practicing medicine without a license.” – Bruce v. Estelle, 536 F.2d 1051, 1053 (5th Cir. 1976)
The Defendant(s) response urges this court to end this case and issue mandatory attorney fees and costs, as required under a Texas health care liability claim.
ARGUMENT AND AUTHORITIES
In response, the Plaintiff maintains the opinion an “expert report” is not necessary, but without a ruling from the court, is open to abuse of interpretation by the Defendant(s).
It is clear and obvious from the record and approach to litigation in this civil action including this latest response, Defendant(s), HCA and HCA Lawyers seek to dismiss the case in 120 days as a medical liability health care liability claim under the Texas Medical Liability Act (“TMLA”) . See Tex. Civ. Prac. & Rem. Code ch. 74.
As such, and in the abundance of caution, Plaintiff filed this extension, seeking to defer any ruling on the expert report requirement until the scheduled hearing on March 20, 2023, which will allow the court to consider both sides of the argument before making any final decision;
No Prior “Imposter Doctor” Lawsuits In the State of Texas
This is a matter of first impression, insofar as an “Imposter Doctor” lawsuit in the State of Texas and based on Plaintiff’s in-depth research.
As such, the Plaintiff maintains, as per his original motion, operative petition, and related pleadings, an “Imposter Doctor” does not come under the scope of an “expert report” and when interpreting the context of Tex. Civ. Prac. & Rem. Code § 74.351.
See; Hous. Methodist Willowbrook Hosp. v. Ramirez, 539 S.W.3d 495, 498 (Tex. App. 2017)
(“If the record does not affirmatively show that the plaintiff’s claims are health care liability claims, the statutory expert-report requirements do not apply.”)
In other words, the “Imposter Doctor” is not an employee of HCA, but an unknown individual who freely accessed the publicly accessible “premises”, namely the South Tower at Kingwood Hospital, and hence an expert report is not required.
No Evidence or Rebuttal of the “Imposter Doctor” by HCA and HCA Lawyers
During these proceedings and this response, Defendant(s) have remained silent on the “Imposter Doctor”.
For example, the response to Plaintiff’s direct complaint (spoilation letters I and II) HCA Kingwood Hospital did not identify any doctor and the final letter(s) were signed by a John Doe.
HCA Kingwood Hospital never provided any photographs or video surveillance footage or any evidence at all which could support their conclusory theories and accusations of Plaintiff’s ‘distress and confusion’ which they infer is attributable to Plaintiff’s inaccurate memory, as stated in their response letter(s) provided, and which conflicted with their own doctor-patient appraisals during Plaintiff’s stay.
See; Hous. Methodist Willowbrook Hosp. v. Ramirez, 539 S.W.3d 495, 498 (Tex. App. 2017) (“The party moving for dismissal bears the burden to prove that the cause of action is a health care liability claim.”).
Defendants singular argument is to rely upon inapplicable case law, citing to Badiga v. Lopez, 274 S.W.3d 681, 685 (Tex. 2009) in an attempt at a back-door escape from both the civil action and the upcoming sanctions hearing.
This should fail because reading the opinion, Badiga was a health care liability claim and no party disputed that fact, which is inapposite to the facts here, where the necessity for an expert report is disputed, as well as other reasons provided herein.
Delays, Discovery Objections and the Fifth Amendment by Defendant(s)
In Plaintiff’s docketed pleadings and original motion submitted on Feb. 19 and docketed on Feb. 20, 2023, and as restated here, the Defendant(s) have objected to all Plaintiffs pleadings without any supporting evidence, retaliated with baseless counterclaims, including applications for sweeping and violative injunctive relief (again, without any supporting evidence, and which this court denied), continued threats of more retaliatory filings (for sanctions), and are represented by counsel from the named law firm, Serpe Andrews, PLLC, who should all be disqualified, and/or arrived without notice as counsel to the January 9 hearing before this court, namely Benjamin ‘Ben’ Hamel.
Defendant(s) have sought to delay proceedings and obstruct allowable discovery at every opportunity and continue to do so to this very day.
Indeed, Plaintiff has been communicating with opposing counsel as recently as yesterday regarding their responses to discovery requests by Plaintiff, where their responses are in conflict with Texas laws.
For example, they claimed in boilerplate fashion that discovery is limited;
“Defendant further objects that Plaintiff has not yet provided a sufficient expert report and, therefore, is prohibited from conducting discovery at this time pursuant to Tex. Civ. Prac. & Rem. Code § 74.351(s).”
(See also; original motion, p. 10-11).
This statement is inaccurate.
See; Baylor All Saints Medical Center v. Martin, 340 S.W.3d 529, 534 (Tex. App. 2011)
(“And although the Martins specifically complain that section 74.351(s) only allows discovery of medical records and billing records…, this is a misreading of the discovery allowed under section 74.351(s). Section 74.351(s) allows discovery “of information, including medical or hospital records or other documents or tangible things, related to the patient’s health care.” See Tex. Civ. Prac. Rem. Code Ann. § 74.351(s) (emphasis added).”).
Delay, non-responsiveness, lack of candor and other sanctionable conduct for the purposes of delay and expense (and which is the purpose of the upcoming hearing), combined with pleading “the Fifth amendment” is how Plaintiff would summarize their legal approach to this case thus far (see Original motion, p. 11).
Their goal is transparent, to end the case on a legal technicality, the 120-day expert report rule, and which Plaintiff maintains, does not apply in this case.
However, as cited in Baylor All Saints Medical Center v. Martin, 340 S.W.3d 529, 534 (Tex. App. 2011) (“Bogar v. Esparza, 257 S.W.3d 354, 371-72 (Tex. App.-Austin 2008, no pet.) (op. on reh’g)
(noting that the plaintiff has the burden to establish that section 74.351’s discovery limitations have in fact prevented her from satisfying the statute’s expert report requirements and pursuing her claim).”),
Defendants have blocked all attempts by Plaintiff to obtain information required for any required expert report, including but not limited to the video surveillance footage, the internal investigation files pertaining to Plaintiff’s direct complaint(s) via his “spoilation letters” and more.
However, maintaining all possible avenues and vigorously pursuing this litigation, Plaintiff’s persistence can yield a responsible “expert” – albeit not a physician – but more relevant to the case presented, a Police Sergeant for Houston Police Department investigating a criminal complaint of stalking, should the court decide this “expert” is required.
Given the facts presented including Plaintiff’s substantive reasoning, it should be more than sufficient to extend the time to file such a report, if necessary.
A Search for the Truth: The Plaintiff’s Witnesses Could Clear Up the Whole Case for All Parties and the Court
The Plaintiff’s goal is to seek the truth and find out who was stalking him at the hospital, why he was stalking Plaintiff and whether this individual is still a threat to him and or his close family.
(See also; original motion, p. 11, citing Jampole and p. 13).
In this search for the truth, process of service has been executed via 5 witness subpoenas’ in advance of the scheduled hearing.
The individuals are;
(1) Dr. Randy Chung, M.D., the lead doctor at Kingwood Hospital during Plaintiff’s residency who can respond to questions about the “Imposter Doctor” and confirm his statements to Plaintiff when questioned about the mystery visitor;
(2 and 3) Mr and Mrs Addicks, who were two of the alleged victims of harassment and stalking, yet they were not called as witnesses for the Defendant(s) at the January 9 hearing.
Plaintiff avers Mr and Mrs Addicks have never spoken, met or seen Plaintiff stalking or harassing them in any live setting and never received a single email, contact form or letter requesting that the gripe site at KingwoodDr.com remove any or all of their personal data, including videos or picture.
As such, Plaintiff seeks the opportunity question these two Texas lawyers on the stand, under oath;
(4) Similarly, the all-important Sgt Stewart of Houston Police Department (“HPD”), who would finally be assigned after many months of goading and only after a further sworn affidavit and complaint filed, to investigate Plaintiff’s initial Police Incident Report.
Sgt Stewart can and will be questioned as to his findings of fact and conclusions after his review of the partial video surveillance footage he claims to have viewed and interviews conducted with HCA’s staff, and finally;
(5) The court reporter for the January 9 hearing, Norman Thieme aka Norma Duarte, to reaffirm her email responses confirming there was ex-parte conversations held between counsel and the Judge at the end of the hearing, to which Plaintiff was not a party as he did not attend and as noticed to the court.
Plaintiff will question her about that incident.
See; EXHIBIT “EMAIL THREAD BETWEEN MARK BURKE AND NORMA DUARTE, COURT REPORTER, DATED JAN 17, 2023”, incorrectly labeled on the docket as EXHIBIT H, image no. 106462258, Feb 9, 2023.
Setting aside the fact Plaintiff anticipates baseless Motions to Quash from Defendant(s) in due course (see; original motion, p. 12), it is clear this lawsuit and discovery is being vigorously pursued in accordance with the laws and rules by at least one party, the pro se Plaintiff.
Plaintiff is honestly at a loss as to why Defendant(s), HCA, a health care provider, and HCA Lawyers do not wish to find out the truth about a very serious complaint along with Sgt Stewart’s investigation, which Plaintiff is led to believe has concluded, and as such he has requested and is awaiting a final report on the same in advance of the hearing, (but that’s open to unexpected delays based on past performance).
The final report and findings are unknown to Plaintiff at the time of this response.
Even without the physical report to hand, the parties will have an opportunity to question Sgt Stewart before the court at the Sanctions hearing on March 20, 2023.
Defendants are Objecting Over a One Day Continuance for a Hearing Date Which was Beyond Plaintiff’s Discretion to Set
The parties conferred by email and agreed two dates for the sanctions hearing, March 13 or March 20, 2023.
The final date of the hearing was left to the court, with one date prior to the alleged deadline for the expert report, the other date after, by a single business day (excl. weekend).
The court chose March 20, 2023 and which has triggered this series of filings.
Plaintiff declares he should not be penalized due to the courts busy calendar schedule and this should automatically toll any and all deadline(s).
See; Chca Woman’s Hosp., L.P. v. Lidji, 369 S.W.3d 488, 494 (Tex. App. 2012)
(“The supreme court has recognized that the expert report deadline may, under some circumstances, be tolled, even though the statute is silent regarding tolling.”).
HCA and HCA Lawyers Cannot Escape from the Sanctions Hearing Which Would Survive any Premature Dismissal
As stated above, the debate pertaining to the 120 day deadline, which could dismiss Plaintiff’s case in a dispute which boils over to the requested extension of time of one business day to include the upcoming sanctions hearing.
If the court denies Plaintiff’s motion for an extension of time and renders judgment, this will not stop the sanctions hearing by operation of law and indeed, Plaintiff would invoke his rights to modify the judgment,
see; Lane Bank Equip. v. Smith Southern Equip, 10 S.W.3d 308 (Tex. 2000)
(Holding that timely filed post-judgment motion for sanctions qualifies as “a motion to modify, correct or reform the existing judgment within the meaning of Rule 329b(g)”.).
Texas District Court Judges have the flexibility to apply ‘common sense’ to situations such as these and also consider the due process of law and Constitutional impact of any decision which could prevent a citizen from presenting their case, when warranted.
See; Guevara v. Ferrer, 247 S.W.3d 662, 668 (Tex. 2007)
(“Thus, non-expert evidence alone is sufficient to support a finding of causation in limited circumstances where both the occurrence and conditions complained of are such that the general experience and common sense of laypersons are sufficient to evaluate the conditions and whether they were probably caused by the occurrence. ”)
See; Striedel v. Striedel, 15 S.W.3d 163 (Tex. App. 2000)
(Holding the trial court violated the respondent’s due process rights when it completely denied him the opportunity to present any evidence during the protective order hearing;
Striedel v. Striedel, 15 S.W.3d 163, 166 (Tex. App. 2000)
(“Sufficiency of Evidence and Right to be Heard General principles of due process dictate that a litigant has a right to be heard and that the court must protect that right.”).
See; Schmieding v. Thompson, 210 S.W.2d 272, 273 (Tex. Civ. App. 1948)
(“The considering and granting of a motion for an extension of time rests within the discretion of the trial judge.”) ;
Miller v. Castleman, No. 13-21-00334-CV, at *6 (Tex. App. Nov. 3, 2022)
(“extensions of the expert report deadline have on occasion been granted by a trial court after the deadline has passed.”).
That relief, if relief is the correct term for the right to be heard at the scheduled in-person hearing on March 20, 2023, is warranted here.
The motion should be GRANTED.
RESPECTFULLY submitted this 2nd day of March, 2023.