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Electronically Filed
9/24/2013 5:00:41 PM
Hidalgo County District Clerks
CAUSE NO. C-0973-13-A
JUANA LAGUNA, Individually, § IN THE DISTRICT COURT OF
and as Next Friend of §
REGINO GONZALEZ, JR., §
a Minor Child, and §
REGINO GONZALEZ, SR., §
§
vs. §
§
Ray R. Fulp, III, DO, § HIDALGO COUNTY, TEXAS
Ray Fulp Orthopedics, PA, §
Maria T. Camacho, MD, §
Robert C. Fountila, DO, § 92nd JUDICIAL DISTRICT
PLAINTIFFS’ RESPONSE TO DEFENDANT, ROBERT C. FOUNTILA’S SPECIAL
EXCEPTIONS AND FIRST SUPPLEMENTAL SPECIAL EXCEPTIONS
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiffs, REGINO GONZALEZ, JR. and JUANA LAGUNA, hereby file their
Response to Defendant, ROBERT C. FOUNTILA’s, Special Exceptions and First
Supplemental Exceptions and would show unto the Court the following:
I. SPECIAL EXCEPTIONS IN DEFENDANT’S ORIGINAL ANSWER
1. SPECIAL EXCEPTION (A) - Defendant, ROBERT C. FOUNTILA,
specifically excepts to Paragraph VI of Plaintiffs’ Original Petition alleging that Plaintiffs
failed to set out specific acts of negligence and plead allegations of negligence in a
global manner. In response to this Special Exception the Plaintiffs have filed Plaintiffs
First Amended Petition. Plaintiffs have set out the below listed specific acts of
negligence by Defendant, ROBERT C. FOUNTILA:
a. Dr. Fountilla, a radiologist, failed to recognize, identify, describe and report
a tumor in the left proximal femur of Plaintiff, REGINO GONZALEZ, JR.
b. Dr. Fountilla, a radiologist, failed to recognize, identify, describe and report
a large permative malignant lesion in the left proximal femur of Plaintiff,
REGINO GONZALEZ, JR.
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Hidalgo County District Clerks
c. Dr. Fountilla, a radiologist, failed to recognize, identify, describe and report
a periosteal thickening and periosteal elevation in the left proximal femur
of Plaintiff, REGINO GONZALEZ, JR.
d. Dr. Fountilla, a radiologist, failed to recognize, identify, describe and report
a permative malignant lesion and periosteal thickening and periosteal
elevation in the left proximal femur of Plaintiff, REGINO GONZALEZ, JR.
are not associated with ordinary femur fractures and indicate a
pathological fracture.
e. Dr. Fountilla, a radiologist, failed to order additional x-rays when he was
presented with x-rays to interpret that were inadequate and not acceptable
for diagnostic purposes.
f. Dr. Fountilla, a radiologist, failed to request to additional imaging studies
such as CT Scan and MRI.
g. Dr. Fountilla, a radiologist, failed to communicate with Dr. Camacho and
Dr. Fulp regarding Plaintiff, REGINO GONZALEZ, JR. the mechanism of
injury, problems with the diagnostic quality of the x-rays, the necessity for
further imaging studies, and the permative malignant lesion and
periosteal thickening and periosteal elevation in the left proximal femur.
2. SPECIAL EXCEPTION (C) - Defendant, ROBERT C. FOUNTILA,
specifically excepts to Paragraph IX of Plaintiffs’ Original Petition alleging that Plaintiffs
failed to set out specific acts of gross negligence and plead allegations of gross
negligence in a global manner. In response to this Special Exception the Plaintiffs have
filed Plaintiffs First Amended Petition. Plaintiffs have set out the below listed specific
acts of gross negligence by Defendant, ROBERT C. FOUNTILA:
a. Dr. Fountilla, a radiologist, failed to recognize, identify, describe and report
a tumor in the left proximal femur of Plaintiff, REGINO GONZALEZ, JR.
b. Dr. Fountilla, a radiologist, failed to recognize, identify, describe and report
a large permative malignant lesion in the left proximal femur of Plaintiff,
REGINO GONZALEZ, JR.
c. Dr. Fountilla, a radiologist, failed to recognize, identify, describe and report
a periosteal thickening and periosteal elevation in the left proximal femur
of Plaintiff, REGINO GONZALEZ, JR.
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Hidalgo County District Clerks
d. Dr. Fountilla, a radiologist, failed to recognize, identify, describe and report
a permative malignant lesion and periosteal thickening and periosteal
elevation in the left proximal femur of Plaintiff, REGINO GONZALEZ, JR.
are not associated with ordinary femur fractures and indicate a
pathological fracture.
e. Dr. Fountilla, a radiologist, failed to order additional x-rays when he was
presented with x-rays to interpret that were inadequate and not acceptable
for diagnostic purposes.
f. Dr. Fountilla, a radiologist, failed to request to additional imaging studies
such as CT Scan and MRI.
g. Dr. Fountilla, a radiologist, failed to communicate with Dr. Camacho and
Dr. Fulp regarding Plaintiff, REGINO GONZALEZ, JR. the mechanism of
injury, problems with the diagnostic quality of the x-rays, the necessity for
further imaging studies, and the permative malignant lesion and
periosteal thickening and periosteal elevation in the left proximal
3. SPECIAL EXCEPTION (E) & (F) – Defendant, ROBERT C. FOUNTILA,
specifically excepts to Paragraph VII, VIII and IX of Plaintiffs’ Original Petition because
they do not apprise the Defendant, ROBERT C. FOUNTILA, of the amount of damages
that Plaintiffs are seeking for general damages and for exemplary damages. These
Special Exceptions are not well taken.
Section 74.053 of the Civil Practice & Remedies Code prohibits a Plaintiff from
specifying an amount of money claimed as damages. The Defendant may file a Special
Exception to the pleadings on the ground that the suit is not within the Court’s
jurisdiction. The minimum jurisdictional limit of a Texas State Civil District Court is $500
(some argue $200). The Defendant has not claimed in his Special Exception that this
Court does not have jurisdiction. In fact, it would be facetious for the Defendant to claim
this Court does not have jurisdiction. However, in consideration for the Defendants’
request the Plaintiffs have provided the Defendant a writing of the total dollar amount
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Hidalgo County District Clerks
claimed. The Plaintiffs with the Court’s permission will file a copy of the letter Under
Seal.
II. DEFENDANT’S FIRST SUPPLEMENTAL SPECIAL EXCEPTIONS
4. The Defendant, ROBERT C. FOUNTILA, complains that Plaintiff, JUANA
LAGUNA, is asserting claims against Defendant, ROBERT C. FOUNTILA, as Next
Friend of Plaintiff, REGINO GONZALEZ, JR., who reached the age of majority on June
19, 2013. The Defendant has requested that Plaintiffs re-plead. The Plaintiff, REGINO
GONZALEZ, JR. has entered this lawsuit as a party Plaintiff in his own right in Plaintiffs’
First Amended Petition. The Plaintiffs have re-plead as requested by Defendant,
ROBERT C. FOUNTILA, in his First Supplemental Exceptions.
Additionally, the Plaintiffs have filed a Motion with the Court to substitute
REGINO GONZALEZ, JR. as Plaintiff in the place of JUANA LAGUNA, Next Friend of
REGINO GONZALEZ, JR.
CONSIDERING THE ABOVE, the Plaintiffs request that the Defendant’s Special
Exceptions be denied.
Respectfully Submitted,
_______________________________
JERRY D. PATCHEN
Attorney at Law
TBN: 15561000
1400 Congress
Houston, Texas 77002
(713) 222-2000
(713) 222-2329 Fax
ATTORNEY FOR PLAINTIFFS
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Hidalgo County District Clerks
CERTIFICATE OF SERVICE
I certify that a true copy of the above was served on each attorney of record or
party in accordance with the Texas Rules of Civil Procedure on September 24, 2013.
_______________________________
JERRY D. PATCHEN
S:\JDP\Client\GONZALEZ, Regino\P\FOUNTILA Pleadings\Response to Special Exceptions & 1st Supp .docx
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Preview
Electronically Filed 9/24/2013 5:00:41 PM Hidalgo County District Clerks CAUSE NO. C-0973-13-A JUANA LAGUNA, Individually, § IN THE DISTRICT COURT OF and as Next Friend of § REGINO GONZALEZ, JR., § a Minor Child, and § REGINO GONZALEZ, SR., § § vs. § § Ray R. Fulp, III, DO, § HIDALGO COUNTY, TEXAS Ray Fulp Orthopedics, PA, § Maria T. Camacho, MD, § Robert C. Fountila, DO, § 92nd JUDICIAL DISTRICT PLAINTIFFS’ RESPONSE TO DEFENDANT, ROBERT C. FOUNTILA’S SPECIAL EXCEPTIONS AND FIRST SUPPLEMENTAL SPECIAL EXCEPTIONS TO THE HONORABLE JUDGE OF SAID COURT: Plaintiffs, REGINO GONZALEZ, JR. and JUANA LAGUNA, hereby file their Response to Defendant, ROBERT C. FOUNTILA’s, Special Exceptions and First Supplemental Exceptions and would show unto the Court the following: I. SPECIAL EXCEPTIONS IN DEFENDANT’S ORIGINAL ANSWER 1. SPECIAL EXCEPTION (A) - Defendant, ROBERT C. FOUNTILA, specifically excepts to Paragraph VI of Plaintiffs’ Original Petition alleging that Plaintiffs failed to set out specific acts of negligence and plead allegations of negligence in a global manner. In response to this Special Exception the Plaintiffs have filed Plaintiffs First Amended Petition. Plaintiffs have set out the below listed specific acts of negligence by Defendant, ROBERT C. FOUNTILA: a. Dr. Fountilla, a radiologist, failed to recognize, identify, describe and report a tumor in the left proximal femur of Plaintiff, REGINO GONZALEZ, JR. b. Dr. Fountilla, a radiologist, failed to recognize, identify, describe and report a large permative malignant lesion in the left proximal femur of Plaintiff, REGINO GONZALEZ, JR. 1 Electronically Filed 9/24/2013 5:00:41 PM Hidalgo County District Clerks c. Dr. Fountilla, a radiologist, failed to recognize, identify, describe and report a periosteal thickening and periosteal elevation in the left proximal femur of Plaintiff, REGINO GONZALEZ, JR. d. Dr. Fountilla, a radiologist, failed to recognize, identify, describe and report a permative malignant lesion and periosteal thickening and periosteal elevation in the left proximal femur of Plaintiff, REGINO GONZALEZ, JR. are not associated with ordinary femur fractures and indicate a pathological fracture. e. Dr. Fountilla, a radiologist, failed to order additional x-rays when he was presented with x-rays to interpret that were inadequate and not acceptable for diagnostic purposes. f. Dr. Fountilla, a radiologist, failed to request to additional imaging studies such as CT Scan and MRI. g. Dr. Fountilla, a radiologist, failed to communicate with Dr. Camacho and Dr. Fulp regarding Plaintiff, REGINO GONZALEZ, JR. the mechanism of injury, problems with the diagnostic quality of the x-rays, the necessity for further imaging studies, and the permative malignant lesion and periosteal thickening and periosteal elevation in the left proximal femur. 2. SPECIAL EXCEPTION (C) - Defendant, ROBERT C. FOUNTILA, specifically excepts to Paragraph IX of Plaintiffs’ Original Petition alleging that Plaintiffs failed to set out specific acts of gross negligence and plead allegations of gross negligence in a global manner. In response to this Special Exception the Plaintiffs have filed Plaintiffs First Amended Petition. Plaintiffs have set out the below listed specific acts of gross negligence by Defendant, ROBERT C. FOUNTILA: a. Dr. Fountilla, a radiologist, failed to recognize, identify, describe and report a tumor in the left proximal femur of Plaintiff, REGINO GONZALEZ, JR. b. Dr. Fountilla, a radiologist, failed to recognize, identify, describe and report a large permative malignant lesion in the left proximal femur of Plaintiff, REGINO GONZALEZ, JR. c. Dr. Fountilla, a radiologist, failed to recognize, identify, describe and report a periosteal thickening and periosteal elevation in the left proximal femur of Plaintiff, REGINO GONZALEZ, JR. 2 Electronically Filed 9/24/2013 5:00:41 PM Hidalgo County District Clerks d. Dr. Fountilla, a radiologist, failed to recognize, identify, describe and report a permative malignant lesion and periosteal thickening and periosteal elevation in the left proximal femur of Plaintiff, REGINO GONZALEZ, JR. are not associated with ordinary femur fractures and indicate a pathological fracture. e. Dr. Fountilla, a radiologist, failed to order additional x-rays when he was presented with x-rays to interpret that were inadequate and not acceptable for diagnostic purposes. f. Dr. Fountilla, a radiologist, failed to request to additional imaging studies such as CT Scan and MRI. g. Dr. Fountilla, a radiologist, failed to communicate with Dr. Camacho and Dr. Fulp regarding Plaintiff, REGINO GONZALEZ, JR. the mechanism of injury, problems with the diagnostic quality of the x-rays, the necessity for further imaging studies, and the permative malignant lesion and periosteal thickening and periosteal elevation in the left proximal 3. SPECIAL EXCEPTION (E) & (F) – Defendant, ROBERT C. FOUNTILA, specifically excepts to Paragraph VII, VIII and IX of Plaintiffs’ Original Petition because they do not apprise the Defendant, ROBERT C. FOUNTILA, of the amount of damages that Plaintiffs are seeking for general damages and for exemplary damages. These Special Exceptions are not well taken. Section 74.053 of the Civil Practice & Remedies Code prohibits a Plaintiff from specifying an amount of money claimed as damages. The Defendant may file a Special Exception to the pleadings on the ground that the suit is not within the Court’s jurisdiction. The minimum jurisdictional limit of a Texas State Civil District Court is $500 (some argue $200). The Defendant has not claimed in his Special Exception that this Court does not have jurisdiction. In fact, it would be facetious for the Defendant to claim this Court does not have jurisdiction. However, in consideration for the Defendants’ request the Plaintiffs have provided the Defendant a writing of the total dollar amount 3 Electronically Filed 9/24/2013 5:00:41 PM Hidalgo County District Clerks claimed. The Plaintiffs with the Court’s permission will file a copy of the letter Under Seal. II. DEFENDANT’S FIRST SUPPLEMENTAL SPECIAL EXCEPTIONS 4. The Defendant, ROBERT C. FOUNTILA, complains that Plaintiff, JUANA LAGUNA, is asserting claims against Defendant, ROBERT C. FOUNTILA, as Next Friend of Plaintiff, REGINO GONZALEZ, JR., who reached the age of majority on June 19, 2013. The Defendant has requested that Plaintiffs re-plead. The Plaintiff, REGINO GONZALEZ, JR. has entered this lawsuit as a party Plaintiff in his own right in Plaintiffs’ First Amended Petition. The Plaintiffs have re-plead as requested by Defendant, ROBERT C. FOUNTILA, in his First Supplemental Exceptions. Additionally, the Plaintiffs have filed a Motion with the Court to substitute REGINO GONZALEZ, JR. as Plaintiff in the place of JUANA LAGUNA, Next Friend of REGINO GONZALEZ, JR. CONSIDERING THE ABOVE, the Plaintiffs request that the Defendant’s Special Exceptions be denied. Respectfully Submitted, _______________________________ JERRY D. PATCHEN Attorney at Law TBN: 15561000 1400 Congress Houston, Texas 77002 (713) 222-2000 (713) 222-2329 Fax ATTORNEY FOR PLAINTIFFS 4 Electronically Filed 9/24/2013 5:00:41 PM Hidalgo County District Clerks CERTIFICATE OF SERVICE I certify that a true copy of the above was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure on September 24, 2013. _______________________________ JERRY D. PATCHEN S:\JDP\Client\GONZALEZ, Regino\P\FOUNTILA Pleadings\Response to Special Exceptions & 1st Supp .docx 5