Preview
FILED
10/4/202111:16AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Rhonda Burks DEPUTY
CAUSE NO.: DC-21-07850
PAMELA MANNING *
IN THE DISTRICT COURT
Plaintiff *
VS. *
160‘” JUDICIAL DISTRICT
'1:
GOP MILLBROOK 1678, LLC, and *
NEXION HEALTH AT LANCASTER, INC. *
Defendant *
DALLAS COUNTY, TEXAS
PLAENTIFF’S MOTION FOR LEAVE TO FELE SUPPLEMENTAL SUMMARY
JUDGMENT EVIDENCE
TO THE HONORABLE COURT:
COMES Now Plaintiff Pamela Manning ("Plaintiff") and files this her Motion
for Leave to File Supplementai Summary Judgment Evidence in response to
Defendant's Reply in Support of Motion For Summary Judgment.
REQUEST FOR LEVE TO FILE SUPPLEMENTAL
SUMMARY JUDGMENT EVIDENCE
Plaintiff requests leave to fiie Exhibit C (attached hereto) in response to and to
dispute a material factuai aliegation contained in Defendant’s Response.
Specifically, Defendant’s Repiy now makes a new argument not previously made
regarding a HIPPA for attached to the Chapter 74 Notice
Proposed Exhibit C is an affidavit from the Certified Paraiegai whom sent the
Chapter 74 Notice and Packet.
Defendant requests an Order Granting Leave to supplement the summary
judgment record with Exhibit C. it is within the Court's discretion to grant or deny
ieave. Tex. R. Civ. P. 166a. In this case, Piaintiff respectfully submits that good
cause exists to consider the supplemental evidence for the foliowing reasons:
i) Because Plaintiff has conclusively established that the iawsuit was
served within the Statute of Limitations.
2) Exhibit C controverts Defendant’s material factual allegation raised in
Defendant's Reply.
3) Exhibit C is presented in direct response to Defendant's inaccurate
factual allegation.
CONCLUSION & PRAYER
WHEREFORE, PREMiSES CONSIDERED, Plaintiff prays that that Court
grant Plaintiff‘s Motion for Leave, enter an Order Granting Leave to Supplement the
Summary Judgment record with Exhibit C, to consider Exhibit C for summary
judgment
purposes, and for such other and further relief to which she may be justly entitled.
Respectfully submitted,
[8/
Mario Rodriguez
The Rodriguez Law Firm, PC
SBN: 00784866
1111 W. Nolana Blvd.
McAllen, Texas 78504
(956) 971-0067 PH.
(956) 971-0069 FAX
Mario@RodriquezLawFirmPCcom
Anabel©RodriquezLawFirmPC.com
ARNY©RodriquezLawFirmPC.com
LEAD COUNSEL FOR DEFENDANT
CERTIFICATE OF SERVICE
On this the “day of October, 2021, Imailed/fax/emailed a copy of the forgoing document
to Defense CounseI at the address/emaiis Eisted:
Gregory N. Ziegler
J. Robert Skeels
ZIEGLER GARDNER BELL, PLLC
Bank of America Plaza
901 Main Street, Suite 4960
Dallas, Texas 75202
Fax: 469-901-5941
ziegler@zgblaw.com
skeets@zgbiaw.com
ATTORNEYS FOR DEFENDANT
/3/ Mario Rodriguez
*
STATE OF TEXAS
*
COUNTY OF BEXAR AFFlDAVIT
Before me, the undersigned authority, personaliy appeared Carmen Gauthereau and who
being by me duly sworn, deposed the following:
1. My name is Carmen Gauthereau. l am over 18 years of age, and I am mentaily
am a Certified Faraiegai and work for the Medical
competent to make this affidavit. I
Mainractice Division of the Rodriguez Law Firm. l have personai knowiedge of the
facts and information herein in the matter of Pamela Manning vs. Milibrook Heatthcare
and. Rehabilitation Center. and iattest that all stated herein is true and correct to the
best of my knowledge.
2. iherein state that on October 21, 2020, icreated a Chapter 74 Notice and mailed it
Certified Return” Receipt Requested, to Miiihrook Healthcare and Rehabilitation
Center at 1850 West Pleasant Run Road, Lancaster, Texas 75146, on behait of our
ciient, Pamela Manning. 1have attached such ietter to this Affidavit.
3. lherein state that with the Chapter 74 Notice, iincluded Exhibits Ant), which consisted
of various medicai records regarding evidence of the injuries that Plaintiff sustained
from our ciient’s talk.
4. iherein state that also attached to the Chapter 7’4 Notice was a HEPAA Authorization
Form signed by Piaintitt‘s legai guardian, her son Patrick Manning.
5. Attached as welt, was a copy of that Power of Attorney. Patrick Manning has Power of
Attorney over his mother, Mrs. Manning, as she is an eideriy, parapiegic woman.
6. This true and correct.
5- {it Minx. ”i xvii/L"
§ignature
SUBSCRtBED AND SWORN TO BEFORE ME on this the 1st of October, 2021, by Carmen
Gauthereaa. c
I
i
i '. ~
{I
N: if , .5
.g
?‘\ l"
g
If: _.-':i“3;": I“
MARY CHRISTINE MENDEZ ’
0.503,, State of Texas Notary Pubiio in andfor
{235mm Pchiic.
Cor-om, Expires 0647-2025 Bexar County, Texas
l331615c9
Notary ill} its;
My commission Expires on
RODRSGUEZ
v
LAW HRM. m
October 21, 2020
VSA CRRR #: 7318~3090u€30fl14135v3Y83
Milibrook Healthcare and Rehabilitation Center
1850 West Pleasant Run Road
Lancaster, Texas 75146
Re: Our Client: Pamela Manning
00!: June 23, 2019
DOB: October'so, 1961
SS#.‘ 451—377—7057
To Whom it May Concern:
Please be advised that this firm represents the aforementioned individual in ciaims
against you, and possibly others associated with you or acting in concert with you, under
the Texas Medical Liability Act (MLA), Texas Civii Practice & Remedies Code Chapter 74
(a/kla 4590i) and Sections 1?.46 (b)(2)-, (5), (9), (12), (20), (22), (24). This letter is notice
of my client’s claims and an attempt to resolve, this matter without litigation. inter alia, our
client's claim arises from your violation of the standards of care. More specifically. the
facts substantiating the aforementioned ciaim are as toiiows:
Ms. Manning is a parapiegic and requires constant supervision. She cannot bathe
herself and requires staff assistance. On June 23. 2019, Ms. Manning was being bathed
by staff from your iaciiity white she was in her bed. She was rolled over and was drooped
from the bed, injuring her head, neck, spine, shoulders and other body parts. Such was
her pain, that she was rushed to the hospitai by EMS. (see Exhibit “"A City of Lancaster
EMS Report)
MCI-‘xuEN UFEECfi Sikhs hN‘i‘Qi‘élG 0955332? WflizSt-ilN-GTQN, DC GFP’ttiE
111.1 W. Noiana Ave. 4440 S. Piedtas Drive #136 1420 N Street NW, Suite .102
McAllen, Texas ?8504 San Antonio, Texas 78228 Washington, DC 20065
Phone: 956.971.0067 Phone: 210.467.5031 Niche: 292.929.3729
Facsimile: 956.9?1DOEQ Facsimile: 956242.014? Facsimite: 202.929.3731
MAIN PHONE NUMBER: 1600—4174693
MAIN FAX NUMBER: SSE-24243147
MAIN EMA”. BIN: Lawf-irm@RodrigueztewFirmPC.com
Firevious the injury, she did not have any mental issues. (see Exhibit “8”) After the
injury, the family began to see odd behavior. and the medicai staff was alerted that she
was “not acting right" (see Exhibit “0”) and on Juiy 30, 2019, she was taken to
Methodist Hospitai where she was diagnosed with Encephaiopathy. (see Exhibit “D”)
Prior to her being dropped, she did not have that diagnosis, nor the mental issues she
now has. Encephalopathy is a term used to describe brain damage. itusually
develops because of a health condition such as cirrhosis, or a brain injury. Symptoms
may be severe and may be permanent.
on behalf of my client, demand is hereby made that within 60 days of
Acoordingiy,
incurred
your receipt of this letter, you pay the foiiowirrg expenses and damages reasonebiy
by my client. .Aithoogh the totei injuries for Ms. Manning have not been fully assessed.
we make a oiaim for:
1. the amount of $3,000,000 or the Statutory Limit, whichever is less, for
personal, non—economic damages under the Texas Medicai Liability Act
(MLA), Texas Civil Practice & Remedies Code Chapter 74, and/or any other
statute which may appiy;
2. $1,750,000.00 in economic and consequential damages;
Please understand that this demand is made in the spirit of compromise. According
to our analysis, the demand represents a tremendous savings to you given your potentiai
exposure to an amount that exceeds the Deltas County Court‘s iorisdiotionai iimits. We
hope you View this demand as a good faith. conservative effort on our part to expeditiously
resolve this potential litigation on amicable terms.
Enctosed with this notice is a signed medioai record reiease form authorizing the
release of my client's medioai records. 1would appreciate you wouid
it if provide me with
copies of any medical records you have in your possession concerning our client. As i
am sure you are aware, 574.051 (d) of the Texas Civil Practice and Remedies Code aiiows
you forty-five (.45) days to comply with this request.
Pieese forward a copy of this ietter to your insurance carrier, and/or iegei
representative for review. We trust you will immediateiy respond, in writing, to this formal
demand ietter end/or schedule a mutuaily convenient time and date for ihe requested
reiief within the time iimit specified in this ietter.
hope is that you wiii receive this notice as it is intended and that there wiii be
My
an amicebie resoiution of this matter before iitigation. if you have any questions, please
do not hesitate to contact me. Ilook foward to hearing from you soon.
Sincereiys
\‘E
//
NW
Mario Rodriguez
Attorney at Law
Enclosures:
Exhibit “A"
Exhibit “8”
Exhibit “(3"
Exhibit "D"
HiF’PA Form
Power of Attorney for Sen, Patrick Manning
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Mario Rodriguez
Bar No. 00784866
legalag@aol.com
Envelope ID: 57837240
Status as of 10/5/2021 8:15 AM CST
Associated Case Party: NEXION HEALTH AT LANCASTER, INC.
Name BarNumber Email TimestampSubmitted Status
Gregory NZiegler ziegler@zgblaw.com 10/4/2021 11:16:02 AM SENT
J. Robert Skeels skeels@zgblaw.com 10/4/2021 11 :16:02 AM SENT
Case Contacts
Name BarNumber Email Timestam pSubmitted Status
MARIO ARODRIGUEZ mario@rodriguezlawfirmpc.com 10/4/2021 11:16:02 AM SENT
Preview
FILED 10/4/202111:16AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Rhonda Burks DEPUTY CAUSE NO.: DC-21-07850 PAMELA MANNING * IN THE DISTRICT COURT Plaintiff * VS. * 160‘” JUDICIAL DISTRICT '1: GOP MILLBROOK 1678, LLC, and * NEXION HEALTH AT LANCASTER, INC. * Defendant * DALLAS COUNTY, TEXAS PLAENTIFF’S MOTION FOR LEAVE TO FELE SUPPLEMENTAL SUMMARY JUDGMENT EVIDENCE TO THE HONORABLE COURT: COMES Now Plaintiff Pamela Manning ("Plaintiff") and files this her Motion for Leave to File Supplementai Summary Judgment Evidence in response to Defendant's Reply in Support of Motion For Summary Judgment. REQUEST FOR LEVE TO FILE SUPPLEMENTAL SUMMARY JUDGMENT EVIDENCE Plaintiff requests leave to fiie Exhibit C (attached hereto) in response to and to dispute a material factuai aliegation contained in Defendant’s Response. Specifically, Defendant’s Repiy now makes a new argument not previously made regarding a HIPPA for attached to the Chapter 74 Notice Proposed Exhibit C is an affidavit from the Certified Paraiegai whom sent the Chapter 74 Notice and Packet. Defendant requests an Order Granting Leave to supplement the summary judgment record with Exhibit C. it is within the Court's discretion to grant or deny ieave. Tex. R. Civ. P. 166a. In this case, Piaintiff respectfully submits that good cause exists to consider the supplemental evidence for the foliowing reasons: i) Because Plaintiff has conclusively established that the iawsuit was served within the Statute of Limitations. 2) Exhibit C controverts Defendant’s material factual allegation raised in Defendant's Reply. 3) Exhibit C is presented in direct response to Defendant's inaccurate factual allegation. CONCLUSION & PRAYER WHEREFORE, PREMiSES CONSIDERED, Plaintiff prays that that Court grant Plaintiff‘s Motion for Leave, enter an Order Granting Leave to Supplement the Summary Judgment record with Exhibit C, to consider Exhibit C for summary judgment purposes, and for such other and further relief to which she may be justly entitled. Respectfully submitted, [8/ Mario Rodriguez The Rodriguez Law Firm, PC SBN: 00784866 1111 W. Nolana Blvd. McAllen, Texas 78504 (956) 971-0067 PH. (956) 971-0069 FAX Mario@RodriquezLawFirmPCcom Anabel©RodriquezLawFirmPC.com ARNY©RodriquezLawFirmPC.com LEAD COUNSEL FOR DEFENDANT CERTIFICATE OF SERVICE On this the “day of October, 2021, Imailed/fax/emailed a copy of the forgoing document to Defense CounseI at the address/emaiis Eisted: Gregory N. Ziegler J. Robert Skeels ZIEGLER GARDNER BELL, PLLC Bank of America Plaza 901 Main Street, Suite 4960 Dallas, Texas 75202 Fax: 469-901-5941 ziegler@zgblaw.com skeets@zgbiaw.com ATTORNEYS FOR DEFENDANT /3/ Mario Rodriguez * STATE OF TEXAS * COUNTY OF BEXAR AFFlDAVIT Before me, the undersigned authority, personaliy appeared Carmen Gauthereau and who being by me duly sworn, deposed the following: 1. My name is Carmen Gauthereau. l am over 18 years of age, and I am mentaily am a Certified Faraiegai and work for the Medical competent to make this affidavit. I Mainractice Division of the Rodriguez Law Firm. l have personai knowiedge of the facts and information herein in the matter of Pamela Manning vs. Milibrook Heatthcare and. Rehabilitation Center. and iattest that all stated herein is true and correct to the best of my knowledge. 2. iherein state that on October 21, 2020, icreated a Chapter 74 Notice and mailed it Certified Return” Receipt Requested, to Miiihrook Healthcare and Rehabilitation Center at 1850 West Pleasant Run Road, Lancaster, Texas 75146, on behait of our ciient, Pamela Manning. 1have attached such ietter to this Affidavit. 3. lherein state that with the Chapter 74 Notice, iincluded Exhibits Ant), which consisted of various medicai records regarding evidence of the injuries that Plaintiff sustained from our ciient’s talk. 4. iherein state that also attached to the Chapter 7’4 Notice was a HEPAA Authorization Form signed by Piaintitt‘s legai guardian, her son Patrick Manning. 5. Attached as welt, was a copy of that Power of Attorney. Patrick Manning has Power of Attorney over his mother, Mrs. Manning, as she is an eideriy, parapiegic woman. 6. This true and correct. 5- {it Minx. ”i xvii/L" §ignature SUBSCRtBED AND SWORN TO BEFORE ME on this the 1st of October, 2021, by Carmen Gauthereaa. c I i i '. ~ {I N: if , .5 .g ?‘\ l" g If: _.-':i“3;": I“ MARY CHRISTINE MENDEZ ’ 0.503,, State of Texas Notary Pubiio in andfor {235mm Pchiic. Cor-om, Expires 0647-2025 Bexar County, Texas l331615c9 Notary ill} its; My commission Expires on RODRSGUEZ v LAW HRM. m October 21, 2020 VSA CRRR #: 7318~3090u€30fl14135v3Y83 Milibrook Healthcare and Rehabilitation Center 1850 West Pleasant Run Road Lancaster, Texas 75146 Re: Our Client: Pamela Manning 00!: June 23, 2019 DOB: October'so, 1961 SS#.‘ 451—377—7057 To Whom it May Concern: Please be advised that this firm represents the aforementioned individual in ciaims against you, and possibly others associated with you or acting in concert with you, under the Texas Medical Liability Act (MLA), Texas Civii Practice & Remedies Code Chapter 74 (a/kla 4590i) and Sections 1?.46 (b)(2)-, (5), (9), (12), (20), (22), (24). This letter is notice of my client’s claims and an attempt to resolve, this matter without litigation. inter alia, our client's claim arises from your violation of the standards of care. More specifically. the facts substantiating the aforementioned ciaim are as toiiows: Ms. Manning is a parapiegic and requires constant supervision. She cannot bathe herself and requires staff assistance. On June 23. 2019, Ms. Manning was being bathed by staff from your iaciiity white she was in her bed. She was rolled over and was drooped from the bed, injuring her head, neck, spine, shoulders and other body parts. Such was her pain, that she was rushed to the hospitai by EMS. (see Exhibit “"A City of Lancaster EMS Report) MCI-‘xuEN UFEECfi Sikhs hN‘i‘Qi‘élG 0955332? WflizSt-ilN-GTQN, DC GFP’ttiE 111.1 W. Noiana Ave. 4440 S. Piedtas Drive #136 1420 N Street NW, Suite .102 McAllen, Texas ?8504 San Antonio, Texas 78228 Washington, DC 20065 Phone: 956.971.0067 Phone: 210.467.5031 Niche: 292.929.3729 Facsimile: 956.9?1DOEQ Facsimile: 956242.014? Facsimite: 202.929.3731 MAIN PHONE NUMBER: 1600—4174693 MAIN FAX NUMBER: SSE-24243147 MAIN EMA”. BIN: Lawf-irm@RodrigueztewFirmPC.com Firevious the injury, she did not have any mental issues. (see Exhibit “8”) After the injury, the family began to see odd behavior. and the medicai staff was alerted that she was “not acting right" (see Exhibit “0”) and on Juiy 30, 2019, she was taken to Methodist Hospitai where she was diagnosed with Encephaiopathy. (see Exhibit “D”) Prior to her being dropped, she did not have that diagnosis, nor the mental issues she now has. Encephalopathy is a term used to describe brain damage. itusually develops because of a health condition such as cirrhosis, or a brain injury. Symptoms may be severe and may be permanent. on behalf of my client, demand is hereby made that within 60 days of Acoordingiy, incurred your receipt of this letter, you pay the foiiowirrg expenses and damages reasonebiy by my client. .Aithoogh the totei injuries for Ms. Manning have not been fully assessed. we make a oiaim for: 1. the amount of $3,000,000 or the Statutory Limit, whichever is less, for personal, non—economic damages under the Texas Medicai Liability Act (MLA), Texas Civil Practice & Remedies Code Chapter 74, and/or any other statute which may appiy; 2. $1,750,000.00 in economic and consequential damages; Please understand that this demand is made in the spirit of compromise. According to our analysis, the demand represents a tremendous savings to you given your potentiai exposure to an amount that exceeds the Deltas County Court‘s iorisdiotionai iimits. We hope you View this demand as a good faith. conservative effort on our part to expeditiously resolve this potential litigation on amicable terms. Enctosed with this notice is a signed medioai record reiease form authorizing the release of my client's medioai records. 1would appreciate you wouid it if provide me with copies of any medical records you have in your possession concerning our client. As i am sure you are aware, 574.051 (d) of the Texas Civil Practice and Remedies Code aiiows you forty-five (.45) days to comply with this request. Pieese forward a copy of this ietter to your insurance carrier, and/or iegei representative for review. We trust you will immediateiy respond, in writing, to this formal demand ietter end/or schedule a mutuaily convenient time and date for ihe requested reiief within the time iimit specified in this ietter. hope is that you wiii receive this notice as it is intended and that there wiii be My an amicebie resoiution of this matter before iitigation. if you have any questions, please do not hesitate to contact me. Ilook foward to hearing from you soon. Sincereiys \‘E // NW Mario Rodriguez Attorney at Law Enclosures: Exhibit “A" Exhibit “8” Exhibit “(3" Exhibit "D" HiF’PA Form Power of Attorney for Sen, Patrick Manning Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Mario Rodriguez Bar No. 00784866 legalag@aol.com Envelope ID: 57837240 Status as of 10/5/2021 8:15 AM CST Associated Case Party: NEXION HEALTH AT LANCASTER, INC. Name BarNumber Email TimestampSubmitted Status Gregory NZiegler ziegler@zgblaw.com 10/4/2021 11:16:02 AM SENT J. Robert Skeels skeels@zgblaw.com 10/4/2021 11 :16:02 AM SENT Case Contacts Name BarNumber Email Timestam pSubmitted Status MARIO ARODRIGUEZ mario@rodriguezlawfirmpc.com 10/4/2021 11:16:02 AM SENT