OPPOSED FIRST MOTION FOR EXTENSION OF TIME TO PROVIDE PLAINTIFF’s EXPERT REPORT
Originally Published: Feb. 19, 2023 | Republished: Feb. 19, 2023
OPPOSED FIRST MOTION FOR EXTENSION OF TIME TO PROVIDE PLAINTIFF’s EXPERT REPORT
The above motion is necessary to resolve the persistence of Defendant(s) HCA Houston Healthcare Kingwood (“HCA”), and Serpe Andrews, PLLC (“HCA Lawyers”), in asserting Plaintiff is required to furnish an expert report in 120 days or less per Tex. Civ. Prac. & Rem. Code § 74.351.
ARGUMENT
The Plaintiff avers an expert report is not required to proceed with this lawsuit and is another dilatory move by Defendant(s) to further delay discovery. In the alternative, Plaintiff seeks this motion for an extension of time to comply with the requirement, on the following terms:-
Definition of an Expert Report
“”Expert report” is defined in section 74.351 as a written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider (emphasis added by Plaintiff) failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.” – Farishta v. Tenet Healthsystem Hosp, 224 S.W.3d 448, 453 (Tex. App. 2007),
and;
“This is an accelerated appeal from the denial of a motion to dismiss a health care liability claim.
Mary Lou Ramirez alleges that Houston Methodist Willowbrook Hospital is liable for her personal injuries stemming from her slip and fall inside a hospital building.
The hospital contends that Ramirez’s sole cause of action is a health care liability claim, yet she failed to serve an expert report. See TEX. CIV. PRAC. & REM. CODE § 74.351.
The outcome turns on whether Ramirez’s cause of action is a health care liability claim. It isn’t. (emphasis added by Plaintiff).
We therefore affirm.” – Hous. Methodist Willowbrook Hosp. v. Ramirez, 539 S.W.3d 495 (Tex. App. 2017).
It should be recorded, the above Methodist Hospital appeal was submitted by Serpe Andrews, HCA Lawyers in this case. Their argument was dismissed in that expedited interlocutory appeal, and similarly, their persistent requests for an expert report lacks merit in this civil action.
The Imposter Doctor is Not an Employee of HCA
“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)
Plaintiff avers an expert report is not required when an analysis of the facts in this case is performed along with textual interpretation of § 74.351.
Plaintiff contends that he was visited by an “Imposter Doctor”, acting alone for two mornings during his stay at Kingwood Hospital, South Tower, Room 376. The imposter Doctor went by the name Doctor Aguilar, and he claimed to be the “lead doctor” to Plaintiff. However, when Plaintiff questioned the 4 “real doctors” who attended his room, as specified in the First Amended Petition, along with Ms. Alexander, Director of Communications and PR for the hospital during her ad-hoc room visits, nobody recognized the Doctor as described by the Plaintiff, and specifically, Dr Randy Chung stated that only he was the “lead Doctor” in Plaintiff’s case.
After the Plaintiff self-discharged in the early morning hours of Saturday, August 13, 2022, he would attend Kingwood Police station twice in order to submit a formal complaint about this “Imposter Doctor”.
Post-discharge, Plaintiff would also complain directly to HCA Kingwood Hospital, but their letters in response to Plaintiff would refuse to identify the “Imposter Doctor” and/or refuse to name who they “believed” to be this (Imposter) Doctor in final letters ending the complaint and internal investigation, signed by an unknown John Doe.
Without going into finite details about the continued obfuscation and willfully malicious delays by Defendant(s) in this case, which is clear and obvious from the record and official court docket, the gravamen of this analysis is to ascertain if an “Imposter Doctor” is classified as “the physician or health care provider” and deemed an “employee” of the health care provider. If the answer is “yes”, this would render an expert report mandatory and required within 120 days after HCA answered, which was on November 17, 2022. This would make the report due on Friday, 17 March, 2023, three days before the scheduled sanctions hearing on Monday, 20 March, 2023.
In this instance, Plaintiff’s Petition clearly identifies the “Imposter Doctor” as a non-employee and the Police Incident Report classified the complaint as “Stalking”.
Taking Plaintiff’s Petition as true at this early stage in proceedings, and where Defendant(s) have refused to provide any evidence rebutting Plaintiff’s arguments and pleadings pertaining to the identity of the Imposter Doctor, this negates the need for an expert report when interpreting the written meaning of § 74.351. See; In re First Reserve Mgmt., No. 09-21-00374-CV (Tex. App. Jan. 13, 2022).
The Sanctions Hearing and Testimony of Sgt. Stewart of Houston Police Department will become “the Expert Report”
As summarized above and in Plaintiff’s operative petition, Plaintiff made a complaint immediately after his self-discharge on August 13, 2022, and post efforts include Plaintiff demanding a full criminal investigation by Houston Police Department (“HPD”). This included obtaining known video surveillance footage as evidence from HCA Kingwood Hospital in order to identify the “Imposter Doctor”.
At the time of this motion, Plaintiff has requested, and is in the process of serving a witness subpoena on Sgt. Stewart, Badge No. 7493, who is in charge of the slow-to-start investigation of the Incident report and follow-up Sworn Affidavit and Complaint by Plaintiff.
The witness subpoena, image no. 106388009 per docket entry on February 6, 2023, will command the in-person attendance of Sgt. Stewart at the scheduled sanctions hearing on March 20, 2023 before this Court.
Sgt. Stewart’s testimony and evidence will form the basis of the Plaintiff’s expert report, officially on the record, including live testimony under the penalty of perjury by an expert available for cross-examination by Defendant(s), and in compliance with Tex. Civ. Prac. & Rem. Code § 74.351.
The Extension of Time is Warranted
The following summarizes the timeline of key events as recorded on the official court docket and events off-the docket, relevant to this motion:-
On January 26, 2023; Plaintiff emailed Court;
“Notice and Dates for Counsel Agreement: I would like to know the times available on Monday, March 13 or Monday March 20, 2023 for a first revised date for my sanctions hearing, currently scheduled for Monday 30, January 2023, and which I wish to postpone to one of the said March dates after discussing availability with opposing counsel. Thanking you in advance.”.
Ms. Shannon North for the Court responded with a date and time of March 20, 2023 at 2 p.m. (“I have March 20, 2023 at 2:00pm in-person.”).
Note: This is important because the deadline for filing of an expert report, if necessary, would be March 17, 2023.
January 27, 2023; Plaintiff’s and Counter-Defendant’s First Motion for Continuance of Sanctions Hearing.
January 30, 2023;
Plaintiff received an email from the Court;
“The hearing for today has been reset to March 20 , 2023 at 1:00pm”;
Plaintiff emailed the court;
“Can you confirm if it’s 1300 hrs or 1400 hrs as you noticed earlier for the new hearing please. (See copy image of your earlier email);
Response by Court;
“My apologize the hearing is set for 2:00pm”
Plaintiff reply;
Thank you for clarifying.
Note; as at the date of this filing, the docket settings page still erroneously shows 1.00 p.m. as the time for the in-person hearing (see Screenshot).
On February 13, 2023; Defendant(s) submitted the following;
DEFENDANT HCA HOUSTON HEALTHCARE KINGWOOD’S OBJECTION AND RESPONSE TO PLAINTIFF’S SECOND REQUEST FOR PRODUCTION AND INSPECTION
Request 1: Production of electronic data in the form of video surveillance footage from August 9, 2022 through August 13, 2022 in .mp4 video format.
RESPONSE: Because Plaintiff has not produced a compliant expert report per Tex. Civ. Prac. & Rem. Code § 74.351(s), this request is premature and exceeds the scope of discovery. Defendant further objects that this request is overly broad, unduly burdensome, not reasonably tailored to lead to the discovery of admissible evidence.
The Defendants also objected on the same day to the request for discovery pertaining to attending and non-attending HCA employees as well as the First Requests for Admissions & Production for Madison J. Addicks, wherein the responses basically plead the “Fifth Amendment” to any and all requests, including basic known facts which are already on the record.
In synopsis, the purpose of discovery is to “seek the truth, so that disputes may be decided by what the facts reveal, not by what facts are concealed.” Jampole v. Touchy, 673 S.W.2d 569, 573 (Tex. 1984). Discovery may be obtained about any matter that is not privileged and is relevant to the subject matter of the case. TEX. R. CIV. P. 192.3(a). Information is discoverable as long as it appears “reasonably calculated to lead to the discovery of admissible evidence.” Defendant(s) noncompliance with the discovery request thwarts Plaintiff’s discovery efforts, prevents effective trial preparation, and conceals relevant facts.
The Defendant(s) have objected to every submission by Plaintiff in this case. Hence, it is anticipated that they will seek to quash the five pending witness subpoenas within 3 days, once served, thus abating the intended sanctions hearing by operation of law. See; “For 263 Days from April 28, 2022 until Jan. 16, 2023 Serpe Andrews Quashed and Delayed Deposition of Dr David E. Tomaszek”, as transcribed on KingwoodDr.com from Cause No. 202144538, MILLER, LESLIE vs. TOMASZEK, DAVID E (MD) (INDIVIDUALLY AND DBA TOMAS (Court 113, JUDGE RABEEA COLLIER).
This will also preclude Plaintiff from obtaining the evidence of Sgt. Stewart including testimony and video surveillance footage – “the expert report”, as demanded by Defendant(s) in this case. As such, these contradictory actions, including their continued malevolent and cunning behavior should not be rewarded by this fraudulent attempt to end this lawsuit prematurely by relying upon a contrived deadline which HCA and HCA Lawyers seek to sabotage.
CONCLUSION
Contrary to Defendant(s) actions, Plaintiff seeks the truth. Sgt. Stewart’s expert witness testimony and evidence will go a long way toward finding out the truth.
It is alarming and disturbing for many reasons as to why HCA and HCA Lawyers would wish to curb or curtail testimony from the Police and their ongoing criminal investigation into the “Imposter Doctor” wandering the halls and room(s) of Kingwood Hospital without notice, considering the Hospital has provided the video surveillance evidence and responded positively to the investigation, according to Sgt. Stewart.
In any event, Plaintiff requests a motion for an extension of time to allow for Sgt. Stewart’s “expert testimony and evidence” on the stand, under the penalty of perjury at the scheduled in-person hearing on March 20, 2023, or, in the alternative, when the hearing is actually conducted, anticipating more shenanigans and motions to delay will be forthcoming from the Defendant(s). For these reasons, the motion should be GRANTED.
RESPECTFULLY submitted this 19th day of February, 2023.
doctor
