Ravi Botla, M.D. v. Salvador Del Toro, Jr.
04-15-00061-CV
| Tex. App. | Feb 23, 2015Background
- Plaintiff (Del Toro) underwent hospital treatment in Dec 2011; complications after colon prep led to surgery and later a medical-malpractice suit against Dr. Cárcamo (timely) and, after amendment, against Dr. Botla.
- Plaintiff provided a medical-authorizations form (Tex. Civ. Prac. & Rem. Code § 74.052) to Cárcamo before filing; Botla was later added and moved for summary judgment arguing the authorization was insufficient to toll limitations as to him.
- Trial court denied Botla’s summary-judgment motion and authorized interlocutory appeal of three questions: (1) sufficiency of the authorization to toll limitations as to Botla; (2) Botla’s standing to challenge an authorization he did not receive; and (3) whether plaintiff was required to file suit on a Sunday.
- Botla petitioned the court of appeals for permissive interlocutory review of questions (1) and (3). Plaintiff filed this Response in Opposition, asking the court to deny permission and, alternatively, to allow plaintiff’s cross-petition to appeal standing (question (2)) if the petition is granted.
- Respondent’s central contentions: (a) the law governing sufficiency of §74.052 authorizations is settled and the cases Botla cites reflect factual differences, not legal conflict; (b) Rule 4 and Tex. Civ. Prac. & Rem. Code §16.072 apply (no requirement to file on Sunday); and (c) interlocutory review would not materially advance ultimate termination because claims against co-defendant Cárcamo remain.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of medical-authorization under §74.052 to toll limitations as to Botla | The authorization is insufficient as a matter of law and therefore did not toll limitations for claims against Botla | The authorization tracked the statutory text and, under controlling authority, minor errors or filled blanks do not defeat tolling; cited conflicting cases turn on facts, not law | Respondent urges denial of permissive appeal because governing law is settled and the dispute is factual application, not a controlling legal conflict |
| Whether plaintiff was required to file suit on a Sunday (i.e., accrual date effect) | If accrual occurred Dec 17, 2011 plaintiff should have filed on Sunday; argues medical-malpractice deadlines are excepted from Rule 4/§16.072 extensions | Rule 4 and §16.072 extend deadlines falling on weekends/holidays; no precedent excludes medical-malpractice from those extensions | Respondent argues law is settled that Rule 4/§16.072 apply and Petitioner’s theory is unsupported; dispute over accrual date is factual and not suitable for interlocutory review |
| Whether interlocutory appeal meets §51.014(d) (controlling question with substantial ground for difference of opinion) | Petitioner contends the questions present novel controlling legal issues warranting immediate review | Respondent contends there is no split of legal authority—prior differences stem from disparate facts—and that the standard for permissive appeal is not met | Respondent asks the court to deny permission because requirements of §51.014(d) are not satisfied |
| Standing to challenge authorization (cross-petition) | (Petitioner did not seek review of this question) | Respondent asks, alternatively, that the court grant cross-petition: whether a defendant who did not receive the notice/authorization can challenge the sufficiency of an authorization provided to another defendant | Respondent requests this Court permit review of standing if it grants Petitioner’s petition so the threshold question is resolved first |
Key Cases Cited
- Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835 (Tex. 2007) (interlocutory jurisdiction and statutory gatekeeping for permissive appeals)
- Mock v. Presbyterian Hosp. of Plano, 379 S.W.3d 391 (Tex. App.—Dallas 2012) (authorization that tracks §74.052 text satisfies tolling despite errors in filled blanks)
- Rabatin v. Kidd, 281 S.W.3d 558 (Tex. App.—El Paso 2008) (errors or omissions in §74.052 form do not necessarily render authorization insufficient)
- State Fair of Tex. v. Iron Mountain Info. Mgmt., Inc., 299 S.W.3d 261 (Tex. App.—Dallas 2009) (strict construction of interlocutory-appeal statutes)
- Mitchell v. Methodist Hosp., 376 S.W.3d 833 (Tex. App.—Houston [1st Dist.] 2012) (distinguishing non-§74.052 releases like generic HIPAA releases as insufficient to trigger §74.051 tolling)
- Hebert v. JJT Const., 438 S.W.3d 139 (Tex. App.—Houston [14th Dist.] 2014) (application of §51.014(d) standards for permissive appeals)