NO. 01-14-767- CV 

# In the First Court of Appeals **Housto n, Texas** 

Shirley Lenoir, Individually and as Personal Representative of the Estate of Shana Lenoir and Christopher McKnight, Individually and as Next Friend of Nayla McKnight, Appellants-Plaintiffs.

v. U.T. Physicians, Appellee-Defendant ,
On Accelerated Appeal From Cause No. 2012-35806 In the 164th Judicial District Court of Harris County, Texas Honorable Alexandra Smoots-Hogan, Presiding Judge

SUR -REPLY BRIEF OF APPELLEE U.T. PHYSICIANS

NORTON ROSE FULBRIGHT US LLP KEN PAXTON Attorney General of Texas David R. Iler CHARLES E. ROY State Bar No. 10386480 First Assistant Attorney General david.iler@nortonrosefulbright.com JAMES E. DAVIS Warren S. Huang Deputy Attorney General for Civil Litig. State Bar No. 00796788 KARA L. KENNEDY warren.huang@nortonrosefulbright.com Chief, Tort Litigation Division Jaqualine P. McMillan State Bar No. 24082955 Jason Warner, Asst. Attorney General jaqualine.mcmillan@nortonrosefulbright.com State Bar No. 24028114 1301 McKinney, Suite 5100 jason.warner@texasttorneygeneral.gov Houston, Texas 77010-3095 P.O. Box 12548, Capitol Station Telephone: (713) 651-5151 Austin, Texas 78711-2548 Facsimile: (713) 651-5246 Telephone: (512) 463-2197 Facsimile: (512) 463-2224 Counsel for Appellee-Defendant U.T. Physicians ORAL ARGUMENT REQUESTED ACCEPTED 01-14-00767-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 4/13/2015 11:42:54 AM CHRISTOPHER PRINE

CLERKi TABLE OF CONTENTS
PAGE
INDEX OF AUTHORITIES

................................ ................................ .................... ii
ARGUMENT

................................ ................................ ................................ ............ 1
I. The Lenoirs Waived Any Argument Based on Nurse Matthews’ Alleged Administration of a Medication Different From the One Prescribed By Dr. Gonski

................................ ............................. 1
II. The Lenoirs Failed to Plead That Nurse Matthews Allegedly Administered a Different Medication From the One Prescribed By Dr. Gonski

................................ ................................ ....................... 2
III. The Lenoirs’ New Negligence Theory Still Does Not Fall Within Any of the TTCA’s Waiver of Immunity Provisions

.............. 7
IV. Allowing the Lenoirs to Make New Allegations in Their Reply Brief Would Promote Gamesmanship

................................ ................. 9
CONCLUSION

................................ ................................ ................................ ......... 9
CERTIFICATE OF COMPL IANCE

................................ ................................ ...... 11
CERTIFICATE OF SERVICE

................................ ................................ .............. 12ii INDEX OF AUTHORITIES PAGE(S) CASES City of N. Richland Hills v. Friend , 370 S.W.3d 369 (Tex. 2012)

................................ ................................ ........... 7 Dallas Area Rapid Transit v. Whitley , 104 S.W.3d 540 (Tex. 2003)

................................ ................................ ........... 7 Glattly v. Air Starter Components, Inc. , 332 S.W.3d 620 (Tex. App.

– Houston [1st Dist.] 2010, pet. denied)

................................ ................................ ................................ ............. 1 Hunt Constr. Group, Inc. v. Konecny , 290 S.W.3d 238 (Tex. App.

– Houston [1st Dist.] 2008, pet. denied)

................................ ................................ ................................ ............. 1 Kamel v. Univ. of Tex. Health Sci. Ctr. at Houston , 333 S.W.3d 676 (Tex. App.

– Houston [1st Dist.] 2010, pet. denied)

................................ ................................ ................................ ............. 8 Mitcham v. Univ. of Tex. Med. Branch at Galveston , 818 S.W.2d 523 (Tex. App.

– Houston [14th Dist.] 1991, writ denied)

................................ ................................ ................................ ............. 8
U

niv. of Tex. Health Sci. Ctr. at Houston v. DeSoto , 401 S.W.3d 319 (Tex. App.

– Houston [14th Dist.] 2013, pet. denied)

................................ ................................ ................................ ............. 8 Univ. of Tex. Med. Bran ch at Galveston v. Malveaux , 2010 Tex. App. LEXIS 6054 (Tex. App.

– Houston [14th Dist.] July 29, 2010, pet. denied)

................................ ................................ ............... 8 Univ. of Tex. Med. Branch at Galveston v. Qi , 402 S.W.3d 374 (Tex. App.

– Houston [14th Dist.] 2013, no pet.)

.................. 8 Univ. of Tex. Med. Branch at Galveston v. Tatum , 389 S.W.3d 457 (Tex. App.

– Houston [1st Dist.] 2012, no pet.)

................. 7 , 9iii Zamarron v. Shi nko Wire Co. , 125 S.W.3d 132 (Tex. App.

– Houston [1st Dist.] 2003, pet. denied)

................................ ................................ ................................ ............. 1

STATUTES & RULES
T EX

. R. A PP

. P. 33.1(a)

................................ ................................ ............................... 11 ARGUMENT On April 3, 2015, Appellants

- Plaintiffs Shirley Lenoir, Individually and as Personal Representative of the Estate of Shana Lenoir, and Christopher McKnight,
In dividually and as Next Friend of Nayla McKnight (“the Lenoirs”) filed their Reply Brief on the Merits. In that brief, the Lenoirs argued for the first time in this litigation that U.T. Physicians waived sovereign immunity under the T exas Tort Claims Act ( “TTCA”) based on Nurse Angela Matthews’ allegedly negligent
administration of a medication different from the one prescribed by Dr. Leah
Gonski (“Dr. Gonski”) and that such alleged negligence proximately caused the Lenoirs’ damages. Reply Br. at 13

- 15. U .T. Physicians files this sur

- reply brief to
show that the Lenoirs’ new argument fails for the following reasons.
I. The Lenoirs Waived Any Argument Based on Nurse Matthews’ Alleged Administration of a Medication Different From the One Prescribed By Dr. Go nski The Lenoirs’ new argument that Nurse Matthews allegedly administered a
different medication from the one prescribed by Dr. Gonski fails because the
Lenoirs waived t his argument by failing to raise it in the trial court 1 or in their opening brief in th is appeal

. 2 Specifically, the Lenoirs failed to assert such a

1 See, e.g. , T EX

. R. A PP

. P. 33.1 (a) ; Hunt Constr. Group, Inc. v. Konecny , 290 S.W.3d 238, 244

- 45 (Tex. App.

– Houston [1st Dist.] 2008, pet. denied).

2 See, e.g. , Glattly v. Air Starter Components, Inc. , 332 S.W.3d 620, 639 n.3 (Tex. App.

– Houston [1st Dist.] 2010, pet. denied); Zamarron v. Shinko Wire Co. , 125 S.W.3d 132, 139 (Tex. App.

– Houston [1st Dist.] 2003, pet. denied).2 negligence theory as a basis for waiver of U.T. Physicians’ governmental immunity in their responses to U.T. Physicians’ plea to the jurisdiction in the trial court (CR 71

- 108, 301

- 97), at the hearing on U.T. Physicians’ plea to the jurisdiction in the trial court (RR 1

- 23), or in their opening brief in this appeal. Consequently, the Lenoirs’ assertion of the argument for the first time in their reply brief on the merits in this appeal should n ot be considered by this Court

. II. The Lenoirs Failed to Plead That Nurse Matthews Allegedly Administered a Different Medication From the One Prescribed By Dr. Gonski The Lenoirs’ new argument that Nurse Matthews allegedly administered a
different medicat ion from the one prescribed by Dr. Gonski also fail s because the Lenoirs never pled such negligence theory in the trial court even though the trial court granted them the opportunity to amend their petition in response to U.T. Physicians’ plea to the jurisdiction. CR 116

- 17. The absence of any such allegation in the Lenoirs’ petition is substantiated by the expert report of Dr. Frank Battaglia that the Lenoirs filed in the trial court in which Dr. Battaglia never opine d that Nurse Matthews negligently administered a different medication from
the one prescribed by Dr. Gonski and that any such negligence proximately caused the Lenoirs’ damages . First Supp. CR 19

- 29.
In stead, the Lenoirs’ petition, expert report, and opening brief in this appeal expressly and unambiguously allege that Nurse Matthews : (1) injected the3 medication that Dr. Gonski prescribed; and (2) was allegedly negligent in doing so
because she should hav e known that (a) Dr. Gonski lacked the authority to administer (individually or by delegation) the medication or (b) the medication was contraindicated in light of Ms. Lenoir’s medical condition. Resp. Br. 40

- 44. As U.T. Physicians conclusively establish ed in its response brief, such allegations do not fall within the TTCA’s waiver of immunity provisions. Id . at 44

- 57

. The Lenoirs’ twisted interpretation of their own petition attempt s to create a

new allegation that Nurse Matthews administered a medication different from the one prescribed by Dr. Gonski. T he Lenoirs cite Paragraphs 17 and 19 of their petition in support of this twisted interpretation (Reply Br. at 14) , but those paragraphs merely state that: (1) “Plaintiffs allege that in the physician’s orders, Gonski wrote, ‘Progesterone shot IM weekly’ and signed her name” (CR 121, ¶ 17); and (2) “Plaintiffs allege that a 250 mg injection of progesterone was administered to Shana Lenoir by Defe ndant ANGELA MATTHEWS, an LVN who signed her initials on the medical record” (CR 121, ¶ 19). Paragraphs 17 and
19 ’s express and unambiguous language do not support an allegation that Nurse Matthews administered a medication different from the one prescrib ed by Dr. Gonski. Instead, they clearly only allege that N ur se Matthews administered “progesterone” just as Dr. Gonski ordered. The Lenoirs also cite Paragraphs 38 and 39 of their petition to support an4 allegation that “[a]lthough 17

- alpha hydroxyprogeste rone caproate (17P) has been used to prevent pre

- term labor, this was not the drug Nurse Matthews injected into Shana Lenoir. ... Instead, Nurse Matthews allegedly injected 17

- hydroxyprogester

one (17

- OHP), which is not the same medication.” Reply Br. at 14 (citing CR 123, ¶¶ 38

- 39). 3 But Paragraphs 38 and 39 do not contain an y such allegation that Dr. Gonski prescribed the particular type of progesterone called “17P

. ” 4 As the
Lenoirs specifically allege in Paragraph 17 of their petition, Dr. Gonski merely

wrote “Progesterone shot IM weekly ” in the physician’s orders. Reply Br. at 14 (citing CR 121, ¶ 17). Moreover , nowhere in their petition do the Lenoirs allege
that Nurse Matthews’ purported administration of 17

- OHP instead of 17P was negligent and prox imately caused their damages. Instead, the Lenoirs allege that
progesterone should not have been prescribed and administered because : (1) it was
an off

- label use of the drug (CR 123, ¶ 38); (2) it was allegedly contraindic ated
where Mrs. Lenoir was pregnant with twins (CR 124, ¶ ¶ 4 0

- 4 1 , 44 ); and (3) it was medically unnecessary due to Mrs. Lenoir’s advanced gestation (CR 124, ¶ 42).

3 Furtherm ore, U.T. Physicians does not agree that 17

- alpha hydroxyprogesterone caproate (17P) and 17

- hydroxyprogesterone (17

- OHP) are different medications.

4 Paragraph 38 of the Lenoirs’ petition states: “Plaintiffs allege that the progesterone injection administ ered to Shana Lenoir to prevent preterm labor was not an FDA

- approved use of the drug and therefore, the prescription of the 17

- hydroxyprogesterone (17

- OHP) is considered an off

- label use of the drug.” CR 123. And Paragraph 39 of the Lenoirs’ petition st ates: “Plaintiffs allege that although the American College of Obstetricians and Gynecologists (ACOG) has recommended the use of 17

- alpha hydroxyprogesterone caproate (17P) for the prevention of pre

- term labor, this is not the drug that was administered to Shana Lenoir.” Id

.5 Finally, the Lenoirs misleadingly cite the ir allegation in Paragraph 46 that “Defendant ANGELA MATHEWS [sic ] engaged in several acts and omissions constituting negligence including: ... A. Administering an injection with out a physician order.” Reply Br. at 14

- 15 (citing CR 124, ¶ 46(A)). But that allegation does not support the Lenoirs’ new theory that Nurse Matthews allegedly administered a medication different from the one prescribed by Dr. Gonski. The allegation , on its face, merely refers to allegations made earlier in the Lenoirs’ petition that the injection of the medication was not ordered by a license d physician. Specifically, allegations that : (1) Dr. Gonski “was not a ‘physician’ with the authority to order the progesterone injection administered by Defendant ANGELA MATHEWS or the authority to delegate the administration of the progesterone injectio n to Defendant ANGELA MATHEWS because Gonski only had a physician

- in

- training permit” (CR 122, ¶ 30); ( 2 ) Nurse Matthews allegedly administered the medication despite knowing that Dr. Gonski “was only a second year resident with a physician

- in

- training per mit who was not being supervised by an attending physician” (CR 123, ¶ 36); and ( 3 ) Nurse Matthews “is considered to have been practicing medicine without a license by administering the progesterone injection to Shana Lenoir” (CR 123, ¶ 37).
The absence of any allegation in the Lenoirs’ petition that Nurse Matthews negligently administered a different medication from the one prescribed by Dr.6 Gonski is supported by the report of their expert Dr. Frank J. Battaglia. First Supp.
CR 19

- 29. Nowhere in Dr. Bat taglia ’s report does he opine that Nurse Matthews administered a medication different from the one prescribed by Dr. Gonski or that the administration of a medication different from the one prescribed by Dr. Gonski proximately caused the Lenoirs’ damages

. Id

. Instead, as to the Lenoirs’ allega

tions against U.T. Physicians, Dr. Battaglia merely opined that Nurse Matthews
administered the medication without a valid order from a licensed physician: Angela Matthews, LVN injected the progesterone into Ms. Lenoir on April 8, 2010 without a valid order from a licensed medical physician. Thus, the standards of nursing care dictated that Angela Mathews, LVN should not have given the injection as ordered by Dr. Gonski, the physician in training, and/or sought a pproval or in this case disapproval, for said injection from a fully licensed member of the medical staff. First Supp. CR 28

. Additionally , nowhere in Dr. Battaglia’s report is there an assertion that
Nurse Matthews negligently administered another type of progesterone from the

one Dr. Gonski prescribed. In fact, Dr. Battaglia opined that no progesterone of any type should have been prescribed or administered. First Supp. CR 22

- 29 ( e.g. , CR 24: “Thus, the standard of medical care dictate [sic] that Dr. Gonski should have never ordered the progesterone injection to Ms. Lenoir on April, 8, 2010”)

. Accordingly, based on the Lenoirs’ actual allegations

– as evidenced in their petition and supported by their own expert

– the Lenoirs ’ allegations of medical7 negligence are not for Nurse Matthews’ administration of the wrong form of progesterone. And as previously shown in U.T. Physicians’ briefing, the Lenoirs have failed to satisfy their burden to prove that their claims fall within the scope of
the TTCA’s w aiver of immunity provisions. See, e.g. , Dallas Area Rapid Transit v. Whitley , 104 S.W.3d 540, 542 (Tex. 2003) (in determining whether a claim falls within the TTCA’s waiver of immunity provisions, courts must “consider the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties”) ; City of N. Richland Hills v. Friend , 370 S.W.3d 369, 372

- 73 (Tex. 2012) (rejecting plaintiff s’ attempt to artfully plead use of tangible personal proper ty); Univ. of Tex. Med. Branch at Galveston v. Tatum , 389 S.W.3d 457, 462 (Tex. App.

– Houston [1st Dist.] 2012, no pet.) (courts must “look to the true nature of the pleadings to determine whether a plaintiff’s claims are an attempt to artfully plead around the requirements of the TTCA”)

. III. The Lenoirs’ New Negligence Theory Still Does Not Fall Within Any of the TTCA’s Waiver of Immunity Provisions But even if this Court concludes that the Lenoirs properly preserved and pled t heir new argument that Nurse Matthews allegedly administered a medication different from the one prescribed by Dr. Gonski , the Lenoirs’ argument fails for a
third reason

– such argument, as the Lenoirs themselves characterize it, does not fall within the TTCA’s waiver of immunity prov isions. In their reply brief, the
Lenoirs characterize their new negligence theory as follows: “Dr. Gonski’s order8 for the progesterone injection is quoted in ¶17 of the petition, but the order does not specify what kind of progesterone was supposed to be administered to Shana Lenoir. ... Instead, Nurse Matthews decided on her own what progesterone to
administer and it turned out not to be the right one.” Reply Br. at 14. The Lenoirs’ characterization of their new negligence theory establishes that it is b ased on Nurse Matthews’ allegedly negligent exercise of nursing judgment

– i.e. , Nurse Matthews’ alleged ly negligent exercise of nursing judgment regarding what type of
progesterone to administer when Dr . Gonski’s order did not specifically indicate
which type of progesterone to use. Th us , the Lenoirs’ new negligence theory does
not fall within the TTCA’s waiver of immunity because there is no negligent use of tangible personal property . Resp. Br. at 44

- 49 ( citing e.g. , Kamel v. Univ. of Tex.
Health Sci. Ctr. at Houston , 333 S.W.3d 676, 686 (Tex. App.

– Houston [1st Dist.] 2010, pet. denied); Univ. of Tex. Med. Branch at Galveston v. Qi , 402 S.W.3d 374,
389

- 90 (Tex. App.

– Houston [14th Dist.] 2013, no pet.); Univ. of Tex. Health Sci.
Ctr. at Houston v. DeSoto , 401 S.W.3d 319, 326 (Tex. App.

– Houston [14th Dist.] 2013, pet. denied); Univ. of Tex. Med. Branch at Galveston v. Malveaux , 2010 Tex. App. LEXIS 6054, at *11

- *19 (Tex. App.

– Houston [14th Dist.] July 29, 2010, pet. denied); Mitcham v. Univ. of Tex. Med. Branch at Galveston , 818 S.W.2d 523,
524

- 25 (Tex. App.

– Houston [14th Dist.] 1991, writ denied ) )

.9 IV. Allowing the Lenoirs to Make New Allegations in Their Reply Brief Would Promote Gamesmanship A final reason why this Court s hould reject the Lenoirs’ new negligence theory is that it would encourage pleading gamesmanship by encouraging parties to adopt irreconcilably conflicting positions in order to defeat motions to dismiss filed by different defendants or raise arguments for the first time in the history of the litigation in an appellate reply brief, as has happened in this case

. The Lenoirs’ new negligence theory is nothing more than a sham allegation asserted for the first time in her reply brief on the merits in this appe al for the sole purpose of circumventing U.T. Physicians’ sovereign immunity . This Court should not allow such sham pleading

. See, e.g. , Tatum , 389 S.W.3d at 462

. CONCLUSION For the reasons stated above, U.T. Physicians respectfully requests that this
Co urt : (1) affirm the trial court’s August 14, 2014 order granting U.T. Physicians’
Plea to the Jurisdiction and Motion to Dismiss With Prejudice ; and (2) grant U.T. Physicians any and all other relief to which it may be entitled.10 Respectfully submitted , NORTON ROSE FULBRIGHT US LLP

By /s/ Warren S. Huang David R. Iler State Bar No. 10386480 david.iler@nortonrosefulbright.com Warren S. Huang State Bar No. 00796788 warren.huang@nortonrosefulbright.com Jaqualine P. McMillan State Bar No. 24082955 jaqualine.mcmillan@nortonrosefulbright.com 1301 McKinney, Suite 5100 Houston, Texas 77010

- 3095 Telephone: (713) 651

- 5151 Facsimile: (713) 651

- 524611 KEN PAXTON Attorney General of Texas
CHARLES E. ROY First Assistant Attorney General
JAMES E. DAVIS Deputy Attorney General for Civ il Litig.
KARA L. KENNEDY Chief, Tort Litigation Division

By /s/ Jason Warner * Jason Warner Asst. Attorney General State Bar No. 24028114 jason.warner@texasattorneygeneral.gov P.O. Box 12548, Capitol Station Austin, Texas 78711

- 2548 Telephone: (512) 463

- 2197 Facsimile: (512) 463

- 2224 * Signed By Permission

CERTIFICATE OF COMPL IANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i) (3), the undersigned
counsel

– in reliance upon the word count of the computer program used to prepare
this document

– certifies that this brief contains 2,216 words, excluding the words that need not be counted under Texas Rule of Appellate Procedure 9.4( i)(1).

/s/ Warren S. Huang

Warren S. Huang12 CERTIFICATE OF SERVI CE I hereby certify that a copy of Sur

- Reply Brief of Appellee U.T. Physicians was served pursuant to Texas Rule of Appellate Procedure 9.5 electronically through the electronic filing manager and /or by electronic mail on April 13 , 2015, upon the following: Mr. Joseph M. Gourrier T HE G OURRIER L AW F IRM 530 Lovett Boulevard, Suite B Houston, Texas 77006 joseph@gourrierlaw.com (Counsel for Appellants

- Plaintiffs )

/s/ Warren S. Huang

Warren S. Huang