Steve F. Montoya, Jr., M.D., West Texas Renal Care and West Texas Nephrology v. San Angelo Community Medical Center and Kirk Brewer, M.D.

ACCEPTED

03-16-00510-CV

13915805

THIRD COURT OF APPEALS

AUSTIN, TEXAS

11/21/2016 5:37:30 PM

JEFFREY D. KYLE

CLERK

No. 03-16-00510-CV

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS FILED IN

3rd COURT OF APPEALS

AUSTIN, TEXAS AUSTIN, TEXAS

______________________________________________________________________________

11/21/2016 5:37:30 PM

JEFFREY D. KYLE

STEVE F. MONTOYA, JR., M.D. Clerk

WEST TEXAS RENAL CARE

AND WEST TEXAS NEPHROLOGY

Appellants

v.

SAN ANGELO COMMUNITY MEDICAL CENTER

AND KIRK BREWER, M.D.

Appellees.

____________________________________________________________________________

From the 119th Judicial District Court

Tom Green County, Texas

Cause No. B-15-0285-C

______________________________________________________________________________

APPELLANTS BRIEF

______________________________________________________________________________

Paul Craig Laird II

SBOT #11795420

Paul Craig Laird II Law Firm, PLLC

800 West Airport Freeway

Suite 800, LB 6015

Irving, Texas 75062

Telephone: (972) 554-0929

Facsimile: (214) 260-4935

pcl880@aim.com

Attorney for Appellants

Paul Smith

SBOT #00791692

800 West Airport Freeway

Suite 860

Irving, Texas 75062

Telephone: (214) 922-0220

Facsimile: (214) 922-0225

paulsmith214@gmail.com

Attorney for Appellants

ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of the names and addresses of all parties to

the Trial Court’s Final Judgment and their counsel of record:

APPELLANTS

1. The Appellants are Steve F. Montoya, Jr., M.D. (an individual); West

Texas Renal Care (a Texas Corporation) and West Texas Nephrology (a

Texas Corporation)

2. Appellants are represented by the following counsel of record:

Paul Craig Laird II, Paul Craig Laird II Law Firm, PLLC, 800 West

Airport Freeway, Suite 800 Irving, Texas 75062 and Paul Smith, 800

West Airport Freeway, Suite 880, Irving, Texas 75062.

APPELLEES

1. Appellees are San Angelo Community Medical Center (a Delaware

Corporation authorized to do business in the State of Texas) and Kirk

Brewer, M.D. (an individual).

2. Appellee Kirk Brewer, M.D. is represented by the following counsel of

record:

Robert B. Wagstaff

McMahon Surovik Suttle, P.C.

400 Pine Street, Suite 800

Abilene, Texas 79601

Appellee San Angelo Community Medical Center is represented by the

following counsel of record:

James J. McGoldrick

Jones Carr McGoldrick, LLP

5910 N. Central Expressway, Suite 1700

Dallas, Texas 75206

ii

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL….……………………………………i

TABLE OF CONTENTS………………………………………………………..…ii

INDEX OF AUTHORITIES…………………….…………………..v, v, vi, vii, viii

STATEMENT OF THE CASE..……………………………………………….….1

ISSUES PRESENTED…..……...……………………………………………..…..2

1. The trial court erred in granting the Motion to Dismiss per the Texas

Citizens Participation Act Tex.Civ.Prac. & Rem. Code §§27.001 et. seq.

and the final Order of Dismissal pursuant to Tex.R.Civ.Proc. 91(a)

dismissing all causes of action against Kirk Brewer, M.D.

2. The trial court erred in granting San Angelo Community Medical Center

a Summary Judgment based on the court’s rulings for Kirk Brewer, M.D.

when Plaintiffs raised sufficient issues of law and evidentiary facts to

deny the Defendants Motion for Summary Judgment.

3. The Defendant Dr. Brewer’s Motion to Dismiss under Tex.R.Civ.Proc.

91(a) and Tex.Civ.Prac. & Rem. Code §§27.001 et. seq. was untimely

filed and untimely heard by the Court.

STATEMENT OF FACTS……………………………………………………….3

SUMMARY OF ARGUMENT…………………………………………………..5

ARGUMENT……………………...……………………………………….…......7

CONCLUSION AND PRAYER………………………………………………...50

CERTIFICATE OF COMPLIANCE……………………….…………………….51

CERTIFICATE OF SERVICE…………………………………………………..51

APPENDIX…………………………………………..………………………52, 53

iii

INDEX OF AUTHORITIES

CASES Page(s)

Armstrong v. Hixon,

206 S.W.3d 175 (Tex. App. Corpus Christi 2006)………………………...43

Bank One, Texas, N.A. v. Stewart,

967 S.W.2d 419, 430-31 (Tex.App. Houston [14 Dist.] 1998, pet.

denied)…………………………………………………………………30, 34

Bart Turner & Assocs. v. Krenke,

No. 3:13–CV–2921–L, 2014 WL 1315896……………………………….35

Better Business Bureau of Metropolitan Dallas, Inc. v. Ward,

401 S.W.3d 440, 443 (Tex.App.—Dallas 2013, pet. denied)……………..20

Bliss v. NRG Industries,

162 S.W.3d 434 (Tex. App. Dallas 2005)………………………………..43

Boudreau v. Fed. Trust Bank,

115 SW3d 740, 743 (Tex. App.- Dallas 2003, pet. Denied)……………....45

Bourland v. State of Texas,

528 S.W.2d 350, 354 (Tex.Civ.App.—Austin 1975, writ ref'd n.r.e.)…….36

Boyles v. Kerr,

855 S.W.2d 593, 601 (Tex.1993)………………………………………….35

Brownlee v. Brownlee,

655 S.W. 2d 111, 112 (Tex. 1984)……………………………………..….46

Cedyco Corp. v. Whitehead,

253 S.W.3d 877 (Tex. App. Beaumont 2008)…………………………......43

Cheniere Energy, Inc. v. Lotfi,

449 S.W.3d 210, 214 (Tex.App.—Houston [1st Dist.] 2014, no pet.)……18

iv

City of Dallas v. Sanchez,

494 S.W.3d 722, 724 (2016)…………………………..……6, 13, 16, 29, 43

City of Houston v. Clear Creek Basin Auth.,

589 SW29 671, 678 n.5 (Tex. 1979) Tex.R.Civ. 166a(a)……………26, 43

City of Keller v. Wilson,

168 SW3d 802, 816 (Tex. 2005)………………………………..…….…..44

Drake Ins. Co. v. King,

606 S.W.2d 812, 817 (Tex.1980)…………………………………………39

Farlow v. Harris Methodist Fort Worth Hosp.,

284 S.W.3d 903, 910 (Tex.App. Fort Worth,2009)……………………….30

G & H Towing Co. v. Magee,

347 SW3d 293, 296-97 (Tex.2011)…………………………………….26, 43

Gibson v. Methodist Hosp.,……………………………………………….…27, 43

822 SW2d 95, 17 U.C.C. Rep. Serv. 2d 81 (Tex. App.-Houston [1st Dist.}

1991, writ denied).

Hicks v. Group & Pension Administrators, Inc.,

473 S.W.3d 518, 529 (Tex.App.-Corpus Christi, 2015)…………………..20

In re E.I. DuPont de Nemours & Co

136 S.W.3d 218, 223 (Tex. 2004) (per curiam)……………………..……19

In Re Estate of Check,

438 SW3d at 836…………………………………………………….……..48

In Re Garth,

214 S.W.3d 190, 192 (Tex.App. Beaumont, 2007)…………….…………32

In Re Lipsky,

460 S.W.3d 579, 591 (Tex. 2015)…….…6, 14, 17, 18, 26, 28, 33, 43, 48, 50

In Re Memorial Hermann Hospital System,

464 S.W. 3d 686 (2015)………………5, 6, 12, 13, 14, 16, 25, 26, 29, 32, 43

v

Kirby v. Cruce,

688 S.W.2d 161, 164 (Tex.App.—Dallas 1985, writ ref'd n.r.e.)………36

Lee Homes of Limestone County, Inc. v. First National Bank,

2015 WL 5175469, at *2 (Tex.App.-Waco 2015, no pet.)………………39

Limestone Prods. Distrib., Inc. v. McNamara,

71 SW3d 308, 311 (Tex. 2002)………………………………………..…45

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,

289, SW3d 844, 848 (Tex. 2009)………………………………………….43

Martin v. Commercial Metals Co.,

138 S.W.3d 619 (Tex. App. Dallas 2004)………………………………...43

Means v. ABCABCO, Inc.,

315 S.W.3d 209 (Tex. App. Austin 2010)……………………………..…..43

MMP, Ltd. v. Jones,

710 SW2d 59, 60 (Tex. 1986)…………………………………………….44

Montemayor v. Ortiz,

208 S.W.3d 627 (Tex. App. Corpus Christi 2006)…………………….….43

Myers v. Southwest Bank,

2014 WL 7009956, at *6 (Tex.App.-Fort Worth 2014, pet. denied)…39, 40

Nixon v. Mr. Prop. Mgmt. Co.,

690 SW2d 546, 548 (Tex. 1985)………………………………………..…44

Pacific Mut. Life Ins. Co. v. Ernst & Young & Co.,

10 S.W.3d 798, 809 (Tex.App. Dallas,2000)………………..…………33, 35

Paulsen v. Yarrell,

455 SW3d 192 (Tex.-App.-Houston [1st Dist.] 2014, no pet.)……………..48

Radio Station KSCS v. Jennings,

750 S.W.2d 760 (Tex. 1988)……………………….………………….45, 46

vi

Rhone-Poulenc, Inc. v. Steel,

997 SW2d 217, 223 (Tex. 1999)…………………………………………..45

Roark v. Allen,

633 S.W.2d 804, 810 (Tex .1982)………………………………………..35

Serafine v. Blunt,

466 S.W.3d 352, 393-94 (Tex.App.-Austin 2015, no pet.)…..….20, 21, 22

Sloat v. Rathbun,

2015 WL 6830927, at *6-7 (Tex.App.-Austin 2015, pet. filed)……18, 23, 24

Sosa v. Central Power & Light,

909 S.W.2d 893, 895 (Tex. 1995)………………………………………….39

Spectators' Communication Network Inc. v. Colonial Country Club,

253 F.3d 215, 220-221 (5th Cir. 2001)……………………………………..29

State v. Ford Motor Co.,

169 S.W.2d 504, 513-14 (Tex.Civ.App. 1943)……………...…………33, 34

Sw. Elec. Power Co. v. Grant,

73 S.W.3d 211, 215 (Tex. 2002)…………………….……………….….…47

Tello v. Bank One, N.A.,

218 S.W.3d 109, 113 (Tex. App.—Houston [14th Dist.] 2007, no pet.……47

Tervita, LLC v. Sutterfield,

482 S.W.3d 280, 286-87 (Tex.App.-Dallas 2015, pet. denied)……...…21, 22

Transcontinental Gas Pipeline Corp. v. Texaco, Inc.,

35 S.W.3d 658, 669 (Tex.App. Houston [1 Dist.] 2000, rev. denied)……31

Wooley v. Schaffer,

447 S.W.3d 71, 76 (Tex.App. Houston [14 Dist.] 2014)………….…..34, 35

RULES

Tex.Civ.Prac. & Rem. Code §§27.001 et. seq.

……………………………………….1, 2, 3, 6, 14, 16, 19, 20, 47, 48, 49, 50

vii

Tex.R.Civ.Proc. 91(a)……….………………………………….1, 2, 3, 6, 16, 47, 49

Tex.R.Civ. 166a(a)…………………………………………….………….27, 30, 43

Texas Rule of Civil Procedure 47(a)………………………………..……………35

42 USC 1395cc …………………………………………..………………………40

42 USC 1395cc(a)(1)(I)(iii)……………………………………………….40, 41, 42

viii

STATEMENT OF THE CASE

This is an appeal of the final Order of Dismissal per the Texas Citizens

Participation Act Tex.Civ.Prac. & Rem. Code §§27.001 et. seq. (CR 194) and the

Tex.R.Civ.Proc. 91(a) final Order of Dismissal (CR 196) dismissing all causes of

action against Kirk Brewer, M.D. Both Orders were signed on February 8, 2016.

The Order at (CR 196) states that the “Motions are so intertwined as to not allow

segregation.” Thus argument of Dr. Montoya is on both Orders. This is also an

appeal of the Summary Judgment (CR 336) that granted San Angelo Community

Medical Center a Judgment dismissing all causes of action because of the orders

dismissing the claims against Kirk Brewer, M.D. The Summary Judgment was

signed on May 17, 2016 (CR 336) and a Motion for New Trial (CR 344) and an

Amended Motion for New Trial were filed by Plaintiffs (CR 349) and were denied

(CR 363).

The underlying causes of action in this case are:

1) Tortious Interference with current and prospective business/patient

relations; 2) Illegal and anticompetitive actions of the Defendants; 3) Defendants

defamation per se; 4) Malice; 5) Business Disparagement against the Plaintiffs; 6)

Restraint of Trade- (Monopolization/Attempted Monopolization/Conspiracy to

Monopolize); 7) Group Boycott and Conspiracy in Restraint of Trade; 8) Restraint

of Trade/Tortious Interference by violating EMTALA (Emergency Medicine

Page 1

Treatment and Action Labor Act) (CR 160 and 300).

Plaintiffs timely filed a Notice of Appeal (CR 367). Plaintiffs bring this

appeal seeking a reversal of the trial courts granting of the Motion to Dismiss and

the final Order of Dismissal of all causes of action against Kirk Brewer, M.D. and

the Summary Judgment denying all causes of action against San Angelo

Community Medical Center.

For ease all Plaintiffs will be referred to as “Dr. Montoya”, Defendant Kirk

Brewer, M.D. will be referred to as “Dr. Brewer” and San Angelo Community

Medical Center will be referred to as “SACMC”.

ISSUES PRESENTED

Appellant’s Issues-

1. The trial court erred in granting the Motion to Dismiss per the Texas Citizens

Participation Act Tex.Civ.Prac. & Rem. Code §§27.001 et. seq. and the final

Order of Dismissal pursuant to Tex.R.Civ.Proc. 91(a) dismissing all causes of

action against Kirk Brewer, M.D.

2. The trial court erred in granting San Angelo Community Medical Center a

Summary Judgment based on the court’s rulings for Kirk Brewer, M.D.

when Plaintiffs raised sufficient issues of law and evidentiary facts to deny

the Defendants Motion for Summary Judgment.

Page 2

3. The Defendant Dr. Brewer’s Motion to Dismiss under Tex.R.Civ.Proc. 91(a)

and Tex.Civ.Prac. & Rem. Code §§27.001 et. seq. was untimely filed and

untimely heard by the Court.

STATEMENT OF FACTS

Dr. Montoya is a nephrologist in practice at SACMC since 1981. He filed

suit against Dr. Brewer (the hospital Chief of Staff) and SACMC for various Anti-

Competitive actions on July 6, 2015 (CR 7). Defendant SACMC filed Special

Exceptions and an answer on August 14, 2015 (CR 17). The Court granted the

Special Exceptions on December 3, 2015 (CR 75). Dr. Montoya filed a Second

Amended Petition in response to the Court Order on the Special Exceptions (CR

103). Dr. Brewer filed a Motion to Dismiss pursuant to Tex. R. Civ. Proc. 91(a)

and Tex. Civ. Prac. Rem. Code §27.001 et.seq. (CR 76) and then filed an Amended

Motion to Dismiss (CR 119). Dr. Montoya filed a response to the Motion to

Dismiss (CR 94) and a Supplemental Response to the Motion to Dismiss (CR 177).

Dr. Montoya timely filed before the hearing on the Motion to Dismiss a

Fourth Amended Original Petition (CR 160). The Court granted the Motion to

Dismiss not distinguishing which rule the Court was using to grant the dismissal

(CR 194). The Court specifically said it could not segregate the claims (CR 196).

Page 3

SACMC filed a untimely Motion to Dismiss (CR 202). SACMC filed a

Motion for Leave to file their Motion to Dismiss (CR 216). At the same time as

filing the Motion to Dismiss SACMC filed a Motion for Summary Judgment (CR

208) based only on the Court granting Dr. Brewer’s Motion to Dismiss. The Court

denied leave to file the Motion to Dismiss of SACMC (CR 335).

Dr. Montoya filed a response to SACMC’s Motion to Dismiss (CR 331) and

a response to the Motion for Summary Judgment (Supp. CR ______). Dr.

Montoya timely filed before the Summary Judgment hearing a Sixth Amended

Original Petition (CR 300). The Court granted the Motion for Summary Judgment

of SACMC based on the ruling of dismissing all claims against Dr. Brewer (CR

336).

Dr. Montoya requested findings of fact and conclusions of law (CR 337) to

allow the court to state the facts and law it relied upon since the Court could not

segregate its prior Order (CR 196) that is the basis of the Summary Judgment. The

court did not file any findings. Dr. Montoya filed a Motion for New Trial (CR

344) and an amended Motion for New Trial (CR 349) and a Motion to Reconsider

Dr. Brewer’s Motion to Dismiss. The Court signed an Order denying the First

Amended Motion for New Trial (CR 363). Dr. Montoya timely filed Notice of

Appeal (CR 367).

Page 4

Summary of Argument

Dr. Montoya sued the hospital SACMC and Dr. Brewer based upon causes

of action that were approved by the Texas Supreme Court in the case of a doctor

suing the hospital where he had a medical practice. The exact same causes of

action that were approved by the Texas Supreme Court in In Re Memorial

Hermann Hospital System, 464 S.W. 3d 686 (2015) are Dr. Montoya’s causes of

action. The Court in In Re Memorial Hermann case stated “We hold that Dr.

Gomez’s petition presents multiple viable anti-competitive actions” Id at 713.

Attached as Exhibit 1 to the response to the Motion to Dismiss (CR 232) is a

certified copy of the pleading of Dr. Gomez from the In Re Memorial Hermann

case that was specifically approved by the Texas Supreme Court as viable causes

of action. The causes of action approved by the Texas Supreme Court in In Re

Memorial Hermann are:

(1) Business Disparagement

(2) Defamation

(3) Tortious Interference with Prospective Business Relations

(4) Improper Restraint of Trade under the Texas Fire Enterprises and

Anti-Trust Act of 1983.

Id. At 695-696

The Petitions (Original through Sixth Amended) (CR 7, 103, 143, 160, 272,

300) of Dr. Montoya followed and alleged the approved Petition of the Texas

Supreme Court In Re Memorial Hermann. Dr. Montoya is alleging the approved

Page 5

anti-competitive and defamation causes of action of the Texas Supreme Court, by a

physician and his entities in which he practices, suing the hospital where he

practices medicine, and Dr. Brewer as Chief of Staff for Anti-Competitive actions.

This case is exactly the In Re Memorial Hermann case approved by the Texas

Supreme Court. The Texas Supreme Court determined In Re Memorial Hermann

in 2015 allowing Anti-Competitive actions against a hospital and its opinion has

not been reversed.

Using the standards set forth in City of Dallas v. Sanchez 494 S.W.3d 722,

724 (2016) for dismissal under Tex.R.Civ.Proc. 91(a) Dr. Montoya’s pleadings,

(CR 7, 103, 143, 160, 272, 300) taken as true, with the inferences reasonably

drawn from them entitle Dr. Montoya to the relief sought in his petitions and

reasonable people could believe the facts pled.

Using the standard set forth in In Re Lipsky, 460 SW3d 579 (Tex.2016) for

determination of whether the Texas Anti-Slapp Statute applies Tex.Civ.Prac. &

Rem. Code §§27.001 et. seq. Dr. Montoya proved through his pleadings and

affidavits attached to the responses to the Motion to Dismiss (CR 94, 225) and

Supplemental Response (CR 177) the case is not one seeking to intimidate or

silence the public but is a case of economic retaliation and is based upon valid

claims that have approved causes of action as set forth in In Re Memorial Hermann

Page 6

ARGUMENT

A. Summary of Factual Allegations by Dr. Montoya in his Fourth

Amended Petition (CR 160) for Dr. Brewer. For SACMC the Sixth

Amended Original Petition (CR 300)

Dr. Montoya has practiced at San Angelo Community Hospital since 1981.

Until 2007 Dr. Montoya would receive 10-20 calls from the emergency room

per month to treat either new or existing patients at the San Angelo

Community Medical Center. Since 2008 Dr. Montoya has only received one call

from the emergency room or a hospitalist for consultation as a nephrologist, and

one time for treatment of an existing patient that suffered with kidney

disease/problems. The lack of referrals caused substantial injury to Dr. Montoya

and damaged his ability to compete, because he depended on these referrals and

consults to build and keep his practice. A majority of patients who need kidney

treatment suffering from kidney disease in a hospital will later need continuing

care for their kidneys or related problems; the most common of such continuing

treatments is kidney dialysis. A typical kidney dialysis patient will need

treatment for a n average of 6 years, and each such patient would mean

revenue to Dr. Montoya's practice of approximately $100,000 per year. Dr.

Montoya estimates that he has lost at least 100 long term kidney dialysis

patients from 2007 to the present due to the Defendants' anticompetitive scheme

to refuse to give him patient referrals or consults from the emergency room of

Page 7

SACMC. D r . M o n t o y a estimates that this lack of referrals has thus cost him

$3,000,000 to $6,500,000 over that period of time.

Dr. Montoya in developing, building and keeping his practice, has always

taken patients as an on-call staff attending physician from the emergency

room/department of SACMC.

In developing and building a practice Dr. Montoya as a nephrologist

wanted long term kidney dialysis patients to treat in his practice. Referral from

hospitals and area physicians is extremely important to a nephrologist to building

and keeping a practice. The ability to obtain referrals from a hospital and area

physicians is a primary source of patients with kidney disease. Defendants in this

case conspired to deprive Dr. Montoya of referrals needed for his nephrology

practice to continue. This case is for the anticompetitive actions of the Defendants

posing a danger of monopolization or attempted monopolization of patient

choice and causing patients to pay more for medical care and injuring consumer

patients.

Dr. Montoya during his 36 year career in San Angelo built his practice

including a dialysis unit that can serve 24 patients per shift from referring

physician and referrals of patients from the emergency room/department.

Page 8

Dr. Brewer is an employee and/or owner of a group of hospitalists

affiliated with, and possibly created by, SACMC. Dr. Brewer was the chief of

staff of SACMC when this case was filed and head of the hospitalist group that

practices at SACMC. Dr. Montoya has been denied the referral of patients that

come into the emergency room with kidney problems/illness/disease by the

hospitalists controlled by Dr. Brewer and SACMC. These patients in need of a

nephrologists care are being referred to the hospital affiliated physician group in

competition with Dr. Montoya. Even Dr. Montoya's current patients are being

referred to the hospitalist/hospital affiliated group.

At all relevant times Dr. Kirk Brewer, himself, as a principal officer of

Community Medical Associates, SACMC and Chief of Staff of SACMC and

head of the hospitalist system at SACMC and the agents/employees of SACMC

working under his control, direction, or in furtherance of unlawful and improper

actions was and is employed by and acting in furtherance of the business of

(SACMC) and its affiliated medical practice(s).

Dr. Montoya's skill as a nephrologist was, until the hospital created its

affiliated medical practice and/or entered into an exclusive contract with the

group of hospitalists affiliated and/or managed by Dr. Brewer, a marketing asset

for SACMC. Dr. Montoya is the only Spanish speaking nephrologist at SACMC.

Page 9

Dr. Montoya received his rotating share of referrals a s r e q ui r e d b y F e d e r a l

L a w c a l l e d EM TA L A , of patients with kidney disease/illness/failure until

SACMC created its affiliated practice groups and/or entered into an exclusive

contract with the group of hospitalists affiliated and/or managed by Dr. Brewer.

One example of Dr. Brewer’s actions- On January 25, 2014 at 8:10 a.m.

Kirk Brewer, M.D. took over the hospitalist care of a patient b e i n g s e e n b y

Dr. Montoya in the hospital (SACMC) . When Dr. Brewer’s

rotation as on call hospitalist started he without ever seeing the patient or the

chart cancelled Dr. Montoya's consult and treatment ordered by Dr. Montoya and

consulted another nephrologist. This removal proves actual anti-competitive

action of Dr. Brewer against Dr. Montoya. Dr. Montoya went to the call board a t

t h e h o s p i t a l and witnessed his name on the call board as the nephrologist on

call on January 24 and 25, 2014. SACMC is required to have an official

EMTALA Medicare call list for on call physicians for the SACMC to take

Medicare patients and be paid for the medicare patients.

Dr. Montoya’s name was on the call list but he was intentionally ignored.

T h e r e m o v a l o f D r . M o n t o y a a s t h e patients p h y s i c i a n s also violates

a patient's right to choose their physician. This list was followed until Dr. Brewer

came to SACMC and took charge of hospitalists. The nephrologist he brought in

Page 10

for consult after removing Dr. Montoya is one that is in a group that Kirk Brewer,

M.D. has a contract for paid services with Dr. Brewer. Dr. Brewer did not see

the patient when he removed D r . M o n t o y a as the treating nephrologist; he

issued the change via a telephone order. Kirk Brewer, M.D. without seeing the

patient, r e mo v e d D r . M o n t o ya a s t h e patient's doctor. This change of

nephrologist was for Kirk Brewer, M.D.'s economic gain and caused Dr.

Montoya economic loss. Attached as Exhibit B (CR 175-176 and 325-326) to

the petition is a true and correct copy of the redacted hospital record showing

the facts on January 25, 2014 as stated above.

Kirk Brewer, M.D. by his actions of removing Dr. Montoya as the

nephrologist published a statement that Dr. Montoya was not a competent

nephrologist to treat patients coming to the San Angelo Community Medical

Center emergency room. Kirk Brewer, M.D. was aware that his actions would

become known to the staff physicians of San Angelo Community Medical Center

and that he was by conduct and a whisper campaign saying Dr. Montoya should

not be allowed to treat patients at San Angelo Community Medical Center. These

remarks caused hospitalists and other doctors at SACMC, as well as doctors and

nurses in the SACMC emergency department, to cease and refuse to (a) admit

patients to the care of Dr. Montoya, and (b) not to refer patients to Dr. Montoya

for nephrology consults.

Page 11

Attached to the petition as Exhibit C (CR 175) is the true and correct

sworn statement that an existing patient of Dr. Montoya, Mrs. Welch tried to see

Dr. Montoya in the emergency room of San Angelo Community Medical Center

and that the emergency room would not call Dr. Montoya to treat his existing

patient. Mrs. Welch is over 90 years of age and Dr. Montoya has treated her for

at least 20 years.

Another patient of Dr. Montoya, whose name is withheld per privacy

rights, who is also over 90 years of age and has been a Dr. Montoya patient for at

least 10 years requested Dr. Montoya when she went to the emergency room and

she also was not allowed to see Dr. Montoya her personal physician.

These facts as stated in the Petition (CR 160) prove the defamation claim

against Dr. Brewer dismissed under the Anti-Slapp Statute was in error. The

“whisper campaign” was only for an economic reason and not made as a truthful

statement above Dr. Montoya. The Whisper Campaign was confirmed in Dr.

Hunt’s affidavit (CR 179). It also proves that Dr. Montoya’s claims under In Re

Memorial Hermann standard are valid claims. They should not have been

dismissed under Tex.R.Civ.Proc. 91(a).

The above facts are proven through the pleadings (CR 160 and 272) and the

affidavits of Dr. Montoya (CR 96, 180, 250) and Dr. Hunt (CR 179) and the sworn

Page 12

statement of a patient Mrs. Welch (CR 175).

Causes of Action

Dr. Montoya sued the hospital SACMC and Dr. Brewer based upon causes

of action that were approved by the Texas Supreme Court in the case of a doctor

suing the hospital where he had a medical practice. The exact same causes of

action that were approved by the Texas Supreme Court in In Re Memorial

Hermann Hospital System, 464 S.W. 3d 686 (2015) are Dr. Montoya’s causes of

action. The Court in In Re Memorial Hermann case stated “We hold that Dr.

Gomez’s petition presents multiple viable anti-competitive actions” Id at 713.

Attached as Exhibit 1 to the response to the Motion to Dismiss (CR 232) is a

certified copy of the pleading of Dr. Gomez from the In Re Memorial Hermann

case that was specifically approved by the Texas Supreme Court as viable causes

of action. The causes of action approved by the Texas Supreme Court in In Re

Memorial Hermann are:

(5) Business Disparagement

(6) Defamation

(7) Tortious Interference with Prospective Business Relations

(8) Improper Restraint of Trade under the Texas Fire Enterprises and

Anti-Trust Act of 1983.

Id. At 695-696

Using the standards set forth in City of Dallas v. Sanchez 494 S.W.3d 722,

724 (2016) for dismissal under Tex.R.Civ.Proc. 91(a) Dr. Montoya’s pleadings,

Page 13

taken as true, with the inference reasonably drawn from them entitle Dr. Montoya

to the relief sought in his petitions and reasonable people could believe the facts

pled.

B. Approved Causes of Action Under In Re Memorial Hermann.

Dr. Montoya’s Causes of Action.

The causes of action in this suit are:

1) Tortious Interference with current and prospective business/patient

relations; 2) Illegal and anticompetitive actions of the Defendants; 3) Defendants

defamation per se; 4) Malice; 5) Business Disparagement against the Plaintiffs; 6)

Restraint of Trade- (Monopolization/Attempted Monopolization/Conspiracy to

Monopolize); 7) Group Boycott and Conspiracy in Restraint of Trade; 8) Restraint

of Trade/Tortious Interference by violating EMTALA (Emergency Medicine

Treatment and Action Labor Act) (CR 160 and 300).

C. The Texas Citizens Participation Act standard setforth in In Re Lipsky, 460 S.W.3d 579

(Tex.2016)

“As already mentioned, HN3 the Texas Citizens Participation Act or TCPA protects

citizens from retaliatory lawsuits that seek to intimidate or silence them on matters

of public concern. See House Comm. on Judiciary & Civil Jurisprudence, Bill

Analysis, Tex. H.B. 2973, 82nd Leg., R.S. (2011). The Act provides a special

procedure for the expedited dismissal of such suits. A two-step process is initiated

by motion of a defendant who believes that the lawsuit responds to the defendant's

valid exercise of First Amendment rights. Under the first step, [**8] the burden is

initially on the defendant-movant to show "by a preponderance of the evidence"

that the plaintiff's claim "is based on, relates to, or is in response to the [movant's]

4 5

exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of

Page 14

6

association." Tex. Civ. Prac. & Rem. Code § 27.005(b). If the movant is able to

demonstrate that the plaintiff's claim implicates one of these rights, the second step

shifts the burden to the plaintiff to "establish[] by clear and specific evidence a

prima facie case for each essential element of the claim in question." Id. §

27.005(c).

HN7 In determining whether the plaintiff's claim should be dismissed, the court is to

consider the pleadings and any supporting and opposing affidavits. Id. § 27.006(a).

Moreover, the motion to dismiss ordinarily suspends discovery, id. § 27.003(c),

although the statute leaves the possibility for a court to order limited discovery for

"good cause" as it relates to the motion itself, id. § 27.006(b). Within defined time

limits, the court must then rule on the motion and must dismiss the plaintiff's claim if

the defendant's constitutional rights are implicated and the plaintiff has not met the

required showing of a prima facie case. Id. § 27.005. The determination is to be

made promptly, ordinarily within 150 days of service of the underlying legal action.

See id. §§ 27.003(b), .004(a), .005(a).

In this proceeding, only the second step is at issue—the question being whether

the plaintiff has met its burden of "establish[ing] by clear and specific evidence a

prima facie case for each essential element of the claim in question." Id. §

27.005(c). The parties disagree about the evidentiary burden this language

imposes. Lipsky argues that the phrase "clear and specific evidence" elevates the

evidentiary standard, requiring Range to produce direct evidence as to each

element of its claim. Range, on the other hand, argues that circumstantial evidence

and rational inferences may be considered by the court in determining whether

clear and specific evidence exists and that the TCPA's prima-facie-case

requirement does not impose a higher or unique evidentiary standard. The dispute

mirrors a similar disagreement among the courts of appeals.”

(In Re Lipsky at 586-587)

4

HN4 The "right of free speech" refers to communications related to "a matter of public

concern" which is defined to include an issue related to: "(A) health or safety; (B)

environmental, economic, or community well-being; (C) the government; (D) a public official

or public figure; or (E) a good, product, or service in the marketplace." Id. § 27.001(3),

(7)(A)—(E).

5

HN5 The "right to petition" refers to a wide range of communications relating to judicial,

administrative, or other governmental proceedings. Id. § 27.001(4).

6

HN6 The "right of association" refers to people "collectively express[ing], promot[ing],

pursu[ing], or defend[ing] common interests." Id. § 27.001(2).

In this case Dr. Montoya conclusively proved through his factual statements

in pleadings (Fourth Amended and Sixth Amended Original Petition (CR 160 and

300) and affidavits attached to his response (CR 94) and Supplemental Response to

Page 15

the Motion to Dismiss in (CR 177) that there is direct and circumstantial evidence

to allow the suit to go forward.

Clear and Convincing Evidence of Dr. Montoya petitions on file and his and

Dr. Hunt’s affidavits prove that this case should not have been dismissed under

Tex.Civ.Proc.91(a) or Tex.Civ.Prac. Remedies Code §27.001 et. seq.

In the response to the Motion to Dismiss (CR 94) Dr. Montoya’s Fourth

Amended Petition (CR 160) and his affidavit (CR 97) proved that this case is a

legitimate lawsuit based upon the In Re Memorial Hermann causes of action (see

page 19 above). Dr. Montoya in the Fourth Amended Original Petition (CR 160)

specifically addressed the factual allegations of how Dr. Brewer and SACMC

harmed him by interfering with his ability to obtain new patients out of the

emergency room referral and make a living as a nephrologist (see facts starting

page 7 above). Dr. Montoya’s active pleading at the time of the hearing on the

Motion to Dismiss was the Fourth Amended Petition (CR 160). A petition is

evidence to keep a Motion to Dismiss from being granted City of Dallas at 724-

725. In Re Lipksy at 586-587. Then Dr. Montoya’s Supplemental Response to the

Motion to Dismiss (CR 177) filed an affidavit of an independent physician, John

Hunt, M.D. stating specifically he (Dr. Hunt) was aware of the whisper campaign

that Dr. Montoya was not to be referred any patients from the emergency room

Page 16

(CR 179). Also Dr. Montoya filed a Supplemental Affidavit that Dr. Brewer had

stolen his patient (CR 180) attached to the affidavit, (redacted patient name for

HIPAA privacy requirements), were patient records showing Dr. Montoya had

seen a patient referral out of the emergency room as Chief of Staff and Chief

Hospitalist Dr. Brewer removed Dr. Montoya as the nephrologist caring for the

patient. The Whisper Campaign was economic activity not a free speech activity.

This evidence was clear and convincing and the Court should have denied

Dr. Brewer’s Motion to Dismiss. Wherefore this Court should reverse the Motion

to Dismiss.

D. Plaintiffs’ Business Disparagement and Defamation Claims Should Not

Be Dismissed

“The TCPA's purpose is to identify and summarily dispose of lawsuits

designed only to chill First Amendment rights, not to dismiss meritorious

lawsuits.” In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015) (emphasis added), citing

Tex. Civ. Prac. & Rem. Code § 27.002 (balancing “the constitutional rights of

persons to petition, speak freely, associate freely, and otherwise participate in

government to the maximum extent permitted by law” against “the rights of a

person to file meritorious lawsuits for demonstrable injury”). The TCPA is not

applicable to this case, as Plaintiff’s causes of action are primarly concerned with

Defendants’ anticompetitive actions, and injury to competition in the relevant

Page 17

markets of nephrology services and referrals for nephrology services in San

Angelo, Texas. As Plaintiff’s Fourth Amended Petition makes clear, the

conspiracy which Defendants perpetrated to deprive Dr. Montoya of referrals

began in 2007. Although Plaintiff details some specific defamations which

occurred in 2014, those defamations are merely representative of the

anticompetitive scheme to which Dr. Montoya was being subjected. Defendants’

group boycott and monopolization/attempted monopolization of the relevant

market began much earlier, so even if Plaintiff’s pleadings do not set forth a prima

facie case of defamation and business disparagement, Plaintiff’s antitrust claims

should not be dismissed because they are not based on those instances of

defamation.

In any event, Plaintiff has set forth a prima facie case of defamation and

business disparagement by clear and specific evidence in his affidavit and Fifth

Amended Petition. The “clear and specific” evidence which is required to pass a

TCPA challenge can be contained in the plaintiff’s pleadings or in affidavits. In re

Lipsky, 460 S.W.3d 579, 591 (Tex. 2015). In determining if the “clear and specific

evidence” standard is met, the court must view the pleadings in the light most

favorable to the party opposing the TCPA motion. Sloat v. Rathbun, 2015 WL

6830927, at *3 (Tex.App.-Austin, 2015) (“we view the pleadings in the light most

favorable to [the non-movant]; i.e., favoring the conclusion that her claims are not

Page 18

predicated on protected expression.”); see also Cheniere Energy, Inc. v. Lotfi, 449

S.W.3d 210, 214 (Tex.App.—Houston [1st Dist.] 2014, no pet.) (reviewing

pleadings and evidence in light most favorable to non-movant)

A prima facie standard generally requires only the “minimum quantum of

evidence necessary to support a rational inference that the allegation of fact is

true.” In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015), quoting In re E.I. DuPont de

Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (per curiam). “In a defamation

case that implicates the TCPA, pleadings and evidence that establishes the facts of

when, where, and what was said, the defamatory nature of the statements, and how

they damaged the plaintiff should be sufficient to resist a TCPA motion to

dismiss.” In re Lipsky, 460 S.W.3d 579, 591 (Tex. 2015).

Plaintiff has plainly satisfied this requirement. As shown in Plaintiff’s

Fourth Amended Petition, Dr. Brewer’s defamation was published by conduct

when he removed Dr. Montoya from consulting with a patient on January 25, 2014

at 8:10 a.m. The defamation was published to the hospitalist overseeing that

patient, and the nephrologists who was eventually called in to consult as a

replacement for Dr. Montoya. The defamation was eventually spread to all

hospitalists and emergency room doctors at SACMC. Fourth Amended Petition, p.

8, ¶ 7.13 (CR 167). Dr. Montoya has also set forth a detailed calculation and

explanation of the damages he has suffered as a result of the Defendants’ scheme

Page 19

to deprive him of nephrology referrals and consults. With regard to the January

2014 defamation, Plaintiff has established his prima facie case with clear and

specific evidence.

E. Even if Plaintiff’s Defamations Are Dismissed, Plaintiff’s Remaining

Claims Are Not Subject to the TCPA

The TCPA is clearly meant to apply to individual claims, not to an entire

lawsuit when allegedly defamatory statements are only important to certain claims.

Breach of contract claims, for example, would not ordinarily be dismissed merely

because a Plaintiff failed to plead a prima facie defamation case under the TCPA.

The TCPA’s definition of “legal action” makes this clear. The TCPA states

that “If a legal action is based on, relates to, or is in response to a party's exercise

of the right of free speech, right to petition, or right of association, that party may

file a motion to dismiss the legal action.” Tex. Civ. Prac. & Rem. Code §

27.003(a).

The TCPA then defines a “Legal action” as “a lawsuit, cause of action,

petition, complaint, cross-claim, or counterclaim or any other judicial pleading or

filing that requests legal or equitable relief.” Tex. Civ. Prac. & Rem. Code §

27.003(a).

Page 20

The only cases which have interpreted the TCAP’s definition of “legal

action” have held that the term “is broad and evidences a legislative intent to treat

any claim by any party on an individual and separate basis.” Hicks v. Group &

Pension Administrators, Inc., 473 S.W.3d 518, 529 (Tex.App.-Corpus Christi,

2015), citing Better Business Bureau of Metropolitan Dallas, Inc. v. Ward, 401

S.W.3d 440, 443 (Tex.App.—Dallas 2013, pet. denied). In Hicks, the court

individually examined each of the claims which allegedly violated the TCPA and

dismissed two of those claims while refusing to dismiss two other claims because

the TCPA challenge to those claims was not timely filed.

Writing a concurrence in the case of Serafine v. Blunt, 466 S.W.3d 352, 393-

94 (Tex.App.-Austin 2015, no pet.), Justice Pemberton wrote that where a “’legal

action’ is based on, relates to, or is in response to” (whatever that phrase may

mean) both expression protected by the Act and other unprotected activity, the

“legal action” is subject to dismissal only to the extent it ‘is based on, relates to, or

is in response to’ the protected conduct, as opposed to being subject to dismissal in

its entirety” Id. at 394. Justice Pemberton showed that this result finds support in

several features of the the TCPA's text, and he explained as follows:

The first is that the TCPA defines “legal action”—that which is subject to

dismissal—both expansively and variously, as previously noted, referring to

everything from an entire action or proceeding to particular facts that

underlie a claim or cause of action. This nomenclature contemplates the

Page 21

drawing of distinctions not only between claims, but also between factual

theories, as here.

Adding further support to this construction are the dual overarching

purposes that the Legislature has declared the TCPA is to serve: “encourage

and safeguard the constitutional rights of persons to petition, speak freely,

associate freely, and otherwise participate in government to the maximum

extent permitted by law, at the same time, protect the rights of a person to

file meritorious lawsuits for demonstrable injury.” Neither purpose is

advanced by holding that a claim is wholly subject to dismissal merely

because it partly “is based on, relates to, or is in response to” protected

expression under the Act. Nor would these purposes be served by the

converse holding that the claim is wholly beyond the Act merely it “is based

on, relates to, or is in response to” some unprotected activity.

Id. at 393-394. The Serafine court later noted that “longstanding principles

of Texas jurisprudence” counsel against “a construction of the TCPA that would

mandate presumptive dismissal of an entire claim merely because its factual

underpinnings might include even one allegation that implicates the Act's

protections.” Id. at 394.

Several cases have applied the TCPA as Justice Pemberton interprets it. For

example, in Tervita, LLC v. Sutterfield, 482 S.W.3d 280, 286-87 (Tex.App.-Dallas

2015, pet. denied), the court dismissed some of the plaintiff’s claims based on

conduct that occurred during a TDI-WC hearing, but refused to dismiss other

claims because the movant had not shown “by a preponderance of the evidence,

that [plaintiff’s] allegations were based on [defendant’s] exercise of its right to

petition or its right of association.” Id. at 287. The Tervita court thus held that the

Page 22

TCPA did not apply to the plaintiff’s “employment discrimination based on (1)

creating a hostile work environment, (2) representing that he was ‘not entitled to

pursue benefits’ under the Texas Worker's Compensation Act, and (3) wrongful

discharge.” Id. at 286; see also Serafine v. Blunt, 466 S.W.3d 352, 359-60

(Tex.App.-Austin 2015) (“to the extent that the Blunts' tortious-interference

counterclaim is based in part on Serafine's alleged threats made outside the context

of the lawsuit, Serafine has not satisfied her initial burden to show that these

portions of the Blunts' counterclaims are subject to the [TCPA].”)

The same result occurred in Sloat v. Rathbun, 2015 WL 6830927, at *6-7

(Tex.App.-Austin 2015, pet. filed). In that case, the court rejected the defendants’

argument that plaintiff’s entire suit was based on conduct protected under the

TCPA, when the plaintiff had also plead facts which showed stalking and other

tortious conduct. The court rejected application of the TCPA and stated as

follows:

[Plaintiff’s claims] are garden-variety tort claims based on specific conduct

that the [Defendants] have failed to demonstrate, by a preponderance of the

evidence, implicates the exercise of their rights of “free speech,” “

association,” or “to petition.”

Sloat v. Rathbun, 2015 WL 6830927, at *8 (Tex.App.-Austin 2015, review

dismissed). The Sloat court held that the defendant had failed to demonstrate, by a

“preponderance of the evidence,” that the plaintiff’s causes of action for intentional

Page 23

infliction of emotional distress, invasion of privacy by intrusion on seclusion and

by public disclosure of private facts, and tortious interference with contract were

“based on, related to, or in response to” defendants’ “exercise of their right of free

speech, right to petition, or right of association.” Id. at *9. The defendants in Sloat

had thus failed to establish that the TCPA applied to the case. Id.

In this case, Dr. Brewer’s participation in the conspiracy aimed at depriving

Plaintiffs of referrals for nephrology patients is not based on allegedly defamatory

statements, but it instead is based on his conduct. The TCPA simply does not

apply to such claims, and the court erred when it dismissed all of Plaintiffs’ claims

against Dr. Brewer.

Wherefore the Plaintiffs request the Order dismissing Dr. Brewer be

reversed and the Summary Judgment in favor of SACMC be reversed.

F. Appellant Has Valid Causes of Action for Antitrust Violations

As noted above, Dr. Montoya’s defamation claims are examples of how

Defendant enforced its anticompetitive scheme to deprive Dr. Montoya of

nephrology referrals, but Plaintiff’s antitrust claims are primarily based on the

illegal scheme itself and not individual defamatory statements. Plaintiff has

plainly set forth valid antitrust claims as they largely mirror the causes of action

Page 24

which the Supreme Court held to be valid in In re Memorial Hermann Hospital

System, 464 S.W.3d 686 (Tex. 2015).

The causes of action in this case, along with the underlying facts, are very

similar to the causes of action approved by the Supreme Court in In re Memorial

Hermann Hospital. In both cases a doctor who has privileges at a hospital has

alleged that the defendants conspired to prevent him from obtaining patient

referrals. In re Memorial Hermann Hospital at p. 711; Plaintiff’s Sixth Amended

Petition, paragraphs 6.1, 6.2, 6.5 (CR 301-303). In both cases, the alleged

conspirators consist of the hospital itself, a physician practice group, and individual

doctors who practice at the hospital. In re Memorial Hermann Hospital at p. 695;

Plaintiff’s Sixth Amended Petition (CR 300). In both cases, the doctors have

explained how other doctors how other doctors are a primary source of referrals,

and that these referrals are required for a doctor to be able to compete. In re

Memorial Hermann Hospital at p. 711; Sixth Amended Petition, pp. 6.2, 6.3, 6.8-

6.11 (CR 301-305). Both lawsuits allege that the defendants intentionally

interfered with the plaintiff’s longstanding practice for obtaining referrals from

other doctors in the community, and that the defendants’ acts constituted a

“concerted effort . . . to restrain competition in and monopolize” the relevant

market. In re Memorial Hermann Hospital at p. 708; Plaintiff’s Sixth Amended

Petition, paragraphs 6.1, 6.2, 6.5, 7.1, 12.7 (CR 301-302, 309, 314). Both lawsuits

Page 25

allege that the defendants impugned the reputation of the plaintiff doctors through

a covert whisper campaign which convinced other doctors not to refer patients to

the plaintiff doctors. In re Memorial Hermann Hospital at p. 696; Plaintiff’s Sixth

Amended Petition, paragraph 6.15-6.17 (CR305-306). Both lawsuits allege that

the plaintiff doctor lost a substantial amount of business from referrals due to the

anticompetitive conspiracy against them. In re Memorial Hermann Hospital at p.

711 (plaintiff alleged that “referral patterns changed” so that he was no longer the

“number one” physician, and that following the conduct at issue, another physician

received more referrals); Plaintiff’s Sixth Amended Petition, paragraph 7.11 and

13.3-13.4 (Dr. Montoya received 10-20 calls per month from the SACMC

emergency room to treat new or existing patients before the anticompetitive

conspiracy began, but he has only received a single call from emergency room for

a new patient since then; all referrals now go to the nephrologists at WTMA). In

both this case and in In re Memorial Hermann Hospital, the plaintiff doctor alleges

that the defendants’ acts “constitute illegal monopolization, attempted

monopolization, and/or conspiracy to monopolize under Texas law.” in In re

Memorial Hermann Hospital; Plaintiff’s Sixth Amended Petition, paragraph 12.7

(CR 314). Plaintiff has plainly stated a valid cause of action under the antitrust

laws of Texas which is in no way designed only to chill Defendants’ First

Amendment rights. “” In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015) (“The

Page 26

TCPA's purpose is to identify and summarily dispose of lawsuits designed only to

chill First Amendment rights, not to dismiss meritorious lawsuits.”) (emphasis

added). The trial court’s granting of Dr. Brewer’s Motion to Dismiss under the

TCPA must be reversed with regard to Dr. Montoya’s antitrust claims. The trial

court’s grant of summary judgment to SACMC, which was based on the improper

dismissal of Dr. Montoya’s antitrust claims, must also be reversed.

G. Appellant’s Petition Clearly Brought Claims Directly Against SACMC

for SACMC’s Own Conduct

SACMC’s Motion for Summary Judgment argued that because the court had

previously dismissed Dr. Brewer from the case, SACMC should also be dismissed

because “Plaintiff alleges no direct or separate liability claims against SACMC

above and apart from the actions of its agent, Brewer.” SACMC’s Motion for

Summary Judgment as a Matter of Law, p. 3 (hereafter “SACMC Motion for

Summary Judgment”) (CR 208). This statement is absolutely false.

Dr. Montoya’s Sixth Amended Petition makes it clear that SACMC was

being sued for its own conduct, and not merely for the conduct or statements of Dr.

Brewer. For example, Dr. Montoya’s Petition stated as follows:

The Defendants (SACMC) and Dr. Kirk Brewer, along with WTMA and Dr.

Brewer’s group of hospitalists, acting by and through its agents/employees/

principals/officers, acted together to carry out the improper and illegal

actions and therefore are jointly and severally liable for civil conspiracy in

carrying out their wrongful activities.

Page 27

Plaintiff’s Sixth Amended Petition, p. 5, ¶ 6.10 (CR 304). The Petition also

included allegations against all of the Defendants in each of Plaintiff’s causes of

action. See, e.g., Id., p. 10 (“Defendant’s intentionally interfered with Dr.

Montoya’s longstanding and continuous relationships with patients and referring

physicians from the emergency room/department in a concerted effort to restrain

competition and monopolize the practice of nephrology . . . in the relevant

market.”) Id., p. 10, , ¶ 7.1 (CR 309). Similar conduct was alleged against

SACMC for each of Plaintiff’s causes of action against it. As there were only ever

two Defendants in the lawsuit, Dr. Montoya’s allegations against the plural

“Defendants” plainly included SACMC. SACMS’s suggestion that there were no

“direct . . . liability” claims against it is simply false.

The causes of action against SACMC are all separate and independent of Dr.

Brewer. For example, with regard to Dr. Montoya’s group boycott claim and

claims for monopolization and attempted monopolization, Dr. Montoya has alleged

that SACMC, Dr. Brewer, Dr. Brewer’s group of hospitalists (who will be named

once Defendants have responded to Dr. Montoya’s discovery), and West Texas

Medical Associates conspired to monopolize the relevant markets defined in Dr.

Montoya’s pleadings, and to keep Dr. Montoya from competing in those markets

by a group boycott. See Plaintiff’s Sixth Amended Petition, paragraphs 12-12.8

(CR 313-314) and 13-13.4 (CR 315-317). It is obvious that each member of a

Page 28

conspiracy is liable for their participation in the conspiracy. A conspirator need

not have the same motives as the other conspirators, and need not be at the same

market level of the other conspirators to be a participant in a conspiracy that is

illegal under the Texas antitrust laws. See, e.g., Spectators' Communication

Network Inc. v. Colonial Country Club, 253 F.3d 215, 220-221 (5th Cir. 2001)

(“Antitrust law has never required identical motives among conspirators, and even

reluctant participants have been held liable for conspiracy. For acquiescence in an

illegal scheme is as much a violation of the Sherman Act as the creation and

promotion of one.”)

H. The Court Improperly Granted a Motion to Dismiss Which

Masquerades as a Grant of Summary Judgment

While styled as an order on a summary judgment motion, the court in fact

granted a Motion to Dismiss in favor of SACMC, as the court effectively ruled that

Dr. Montoya’s pleadings did not state a claim against SACMC. The mere fact that

Dr. Brewer was dismissed from the case does not mean that SACMC could not be

liable for its own conduct or the conduct of its other agents besides Dr. Brewer.

SACMC did not present any evidence in support of its summary judgment motion

which showed that it had not engaged in any of the conduct which Dr. Montoya

sued it for; SACMC instead relied solely on the fact that Dr. Brewer was dismissed

from the case under a Texas procedural rule. This “evidence” was in fact no

Page 29

evidence at all, and it resulted in the court in effect granting summary judgment to

SACMC based on Dr. Montoya’s pleadings.

At the hearing on SACMC’s summary judgment motion, the court

repeatedly stressed its belief that Dr. Montoya was required to plead specific

wrongful acts by an agent of SACMC in order to be able to maintain its lawsuit

against SACMC. However, there is simply no rule in Texas holding that in order

to plead a valid cause of action against a business entity, one must list specific

tortious or wrongful actions which company representatives undertook on behalf of

the organization. Texas pleading precedent clearly allows a party suing a business

entity to merely allege that the business entity itself did something wrongful. See,

e.g., Bank One, Texas, N.A. v. Stewart, 967 S.W.2d 419, 430-31 (Tex.App.

Houston [14 Dist.] 1998, pet. denied) (although no specific acts of company

representative were plead, court stated that “Although the allegations are broad,

both petitions raise a reasonable inference that Bank One and Weyerhaeuser

participated in a conspiracy to defraud LRI by inducing Trendmaker to avoid

liability on the Midland Note. [Plaintiff’s] pleading also gives fair notice of his

claim . . . “); Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903, 910

(Tex.App. Fort Worth,2009) (“Under the doctrine of respondeat superior, an

employer may be vicariously liable for the negligence of its agent or employee

who was acting within the scope of employment even though the employer did not

Page 30

personally commit a wrong.”). Obviously, a corporate entity itself can commit a

wrong. Companies are liable for their own actions or failures to act, and Texas

allows companies to be sued directly for those acts. Transcontinental Gas Pipeline

Corp. v. Texaco, Inc., 35 S.W.3d 658, 669 (Tex.App. Houston [1 Dist.] 2000, rev.

denied) (noting that “in usual business practice,” “companies are liable for their

own acts.”)

For example, if one sues a construction company for failing to build a fence

properly, one does not have to name in the pleading the company employees who

built the inadequate fence. If one sues a grocery store for selling tainted meat, one

does not have to name the individual butcher who packaged it. Such a rule would

as a practical matter make most lawsuits impossible, as a plaintiff almost never

knows at the pleading stage which employees or agents, if any, were involved in

the wrongful acts. Because of this, every jurisdiction in the United States,

including Texas, allows a company to be sued for the company’s own wrongful

acts. So long as the lawsuit gives the company notice of what it is being sued for

so that it can prepare a defense, the Texas pleading standards are satisfied. Dr.

Montoya’s lawsuit against SACMC plainly satisfied the Texas notice pleading

standard, and the court’s decision to grant summary judgment to SACMC because

no specific acts of SACMC’s agents were listed in the lawsuit after Dr. Brewer was

dismissed was clear error.

Page 31

I. Dr. Montoya’s Petition Meets the Texas Notice Pleading Standard

As noted above, the court’s grant of summary judgment was actually a

dismissal based on the pleadings. While the Defendants and the court persist in

their belief that this case primarily involves defamatory statements, the central

basis of Dr. Montoya’s lawsuit is that the Defendants, along with WTMA and Dr.

Brewer’s group of hospitalists, conspired to deprive Dr. Montoya of referrals for

nephrology patients. Dr. Montoya’s pleading is nearly identical to the plaintiff’s

pleading in In re Memorial Hermann Hospital System, 464 S.W.3d 686 (Tex.

2015), a case in which the Supreme Court specifically held that that a physician

had stated valid claims against a hospital and its co-conspirators. Under Hermann

Memorial, Dr. Montoya’s pleading is plainly sufficient under Texas law.

While the court need not look beyond Hermann Memorial, cases such as In re

Garth, 214 S.W.3d 190, 192 (Tex.App. Beaumont, 2007) clearly show that Dr.

Montoya’s pleadings for his conspiracy-based antitrust claims meet the Texas

notice pleading standard. The court in Garth stated as follows:

At the time the trial court entered its order, Plaintiff's First Amended Petition

was the pleading before the court. Although very broad, the First Amended

Petition clearly alleges a conspiracy by the individual defendants, asserts

that they committed overt acts, and seeks punitive damages against them . . .

Because we construe [Plaintiff’s] pleadings in her favor, we hold that her

pleadings are sufficient to notify the individual defendants that she sought to

hold them liable for punitive damages through a conspiracy theory. . .

Page 32

Id. at 192. A similar result was reached in Pacific Mut. Life Ins. Co. v. Ernst &

Young & Co., 10 S.W.3d 798, 809 (Tex.App. Dallas,2000), rev’d on other

grounds, 51 S.W.3d 573 (Tex.,2001). In that case, the court stated as follows:

Although rule 47(a) of the rules of civil procedure requires a pleading to

contain “a short statement of the cause of action sufficient to give fair notice

of the claim involved,” see tex.R. Civ. P. 47(a), this does not require that

each element of a claim be specifically alleged in a pleading. See Boyles v.

Kerr, 855 S.W.2d 593, 601 (Tex.1993) (op. on reh'g). Rather, it is sufficient

if the cause of action can be “reasonably inferred” from the pleading. See

Boyles, 855 S.W.2d at 601. In this case, Pacific's live pleading alleges that

Ernst & Young “conspired with, aided and abetted, associated with, and

assisted ... in the dissemination of false and misleading information or

omissions of material facts to prospective investors in First Republic backed

securities.” The petition also alleged that Ernst & Young's participation in

the fraud enabled First Republic to make misrepresentations to the public

after the merger. We have reviewed this language and, after doing so, we

conclude that (1) a claim for conspiracy or “aiding and abetting” may be

reasonably inferred from this language, and (2) the language was therefore

sufficient to support a conspiracy or “aiding and abetting” claim.

Pacific Mut. Life Ins. Co. v. Ernst & Young & Co., 10 S.W.3d 798, 809 (Tex.App.

Dallas,2000), rev’d on other grounds, 51 S.W.3d 573 (Tex. 2001). Importantly,

the court in Pacific Mutual held that the pleading was sufficient even though it

only named the corporate defendant as the conspirator, and did not name any

corporate agents who had participated in the conspiracy. The same result was

reached in State v. Ford Motor Co., 169 S.W.2d 504, 513-14 (Tex.Civ.App. 1943),

where the court stated as follows:

In any event, the pleader was not required to plead the exact agreement and

by whom made with respect to the unlawful combination or conspiracy

Page 33

plead. It is only the facts constituting the cause of action for conspiracy,

particularly the acts which constitute the grounds or gravamen of the action,

that must be alleged with certainty and particularity. This the petition did. . .

We are therefore of the view that the general allegation that a trust,

combination, or conspiracy was entered into by Ford and its dealers, together

with the allegations of specific instances whereby Ford and its dealers

operated so as to limit the territory in which a dealer could resell

automobiles and parts purchased from Ford . . . fully comply with the rule

that in alleging a combination or conspiracy the facts constituting the

conspiracy, or from which it may be inferred, should be clearly and

concisely set out. . . [A]s a rule great latitude is allowed in setting out in the

petition the particular acts from which the conspiracy may be inferred.

State v. Ford Motor Co., 169 S.W.2d 504, 513-14 (Tex.Civ.App. 1943).

Again, it is important to note that the court in Ford Motor held that merely naming

the corporate entity, Ford, as a conspirator was sufficient to state a valid claim

under the Texas notice pleading standard. The same result was reached in Bank

One, Texas, N.A. v. Stewart, 967 S.W.2d 419, 430-31 (Tex.App. Houston [14 Dist.

1998) (“Although the allegations are broad, both petitions raise a reasonable

inference that Bank One and Weyerhaeuser participated in a conspiracy to defraud

LRI by inducing Trendmaker to avoid liability on the Midland Note.”). In Stewart,

as in the other cases cited above, the court held that the plaintiff had pleaded a

valid conspiracy claim where it alleged that the corporate defendants themselves

had participated in the conspiracy.

If the court had actually applied Rule 91a, the court would apply the fair

notice pleading standard applicable in Texas to determine whether the allegations

of the petition are sufficient to allege a cause of action. Wooley v. Schaffer, 447

Page 34

S.W.3d 71, 76 (Tex.App. Houston [14 Dist.] 2014), citing Roark v. Allen, 633

S.W.2d 804, 810 (Tex .1982) (“A petition is sufficient if it gives fair and adequate

notice of the facts upon which the pleader bases his claim.”); see also Bart Turner

& Assocs. v. Krenke, No. 3:13–CV–2921–L, 2014 WL 1315896, at *5 (N.D.Tex.

Mar. 31, 2014) (applying Texas's fair notice pleading standard to determine

whether to grant motion to dismiss under Rule 91a). In conducting its review, the

court must construe the pleadings liberally in favor of the plaintiff, look to the

pleader's intent, and accept as true the factual allegations in the pleadings to

determine if the cause of action has a basis in law or fact. Id. at 76. Although

Texas Rule of Civil Procedure 47(a) requires “a short statement of the cause of

action sufficient to give fair notice of the claim involved,” it does not require that

each element of the claim be specifically alleged in a pleading. See Pac. Mut. Life

Ins. v. Ernst & Young, 10 S.W.3d 798, 809 (Tex.App.-Dallas 2000, no pet.) (citing

Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex.1993)). If a cause of action can be

“reasonably inferred” from the pleading, the pleading is sufficient. Pac. Mut., 10

S.W.3d at 809. Dr. Montoya’s Petition plainly meets this standard.

While the court’s decision to grant summary judgment to SACMC cannot

withstand review under the Texas notice pleading standard, the court’s decision

was particularly wrong in light of Dr. Montoyas’ antitrust claims, which allege a

conspiracy to monopolize the relevant market and a group boycott (i.e., a type of

Page 35

anticompetitive conspiracy) against Dr. Montoya by SACMC, Dr. Brewer, Dr.

Brewer’s group of hospitalists, and WTMA. Because of the secretive nature of

conspiracies, courts allow plaintiffs to show conspiracy by circumstantial rather

than direct evidence. Kirby v. Cruce, 688 S.W.2d 161, 164 (Tex.App.—Dallas

1985, writ ref'd n.r.e.). The agreement need not be formal, the understanding may

be tacit, and each conspirator need not know the details of the conspiracy. Id. at

164; Bourland v. State of Texas, 528 S.W.2d 350, 354 (Tex.Civ.App.—Austin

1975, writ ref'd n.r.e.). Given the law on this subject, it makes no sense to grant a

summary judgment in favor of SACMC merely because Dr. Montoya has not

pleaded in detail exactly which representatives of SACMC entered into the

conspiracy, whom they had conversations and agreements with, and so forth. It is

ridiculous to make Dr. Montoya plead such facts before even undertaking

discovery in this matter.1 A conspiracy never needs to be proven with direct

evidence if there is sufficient circumstantial evidence, but in dismissing SACMC

because Dr. Montoya’s pleadings did not show a specific conspiratorial action by

an agent of SACMC, the court effectively required Dr. Montoya to provide direct

evidence of the antitrust conspiracy at the pleading stage. This holding is simply

not allowed under the Texas summary judgment rule, and would not even be

allowed under Rule 91a motion to dismiss.

1

Plaintiffs did send out Requests for Production and Interrogatories in this matter, but Defendants only tendered

objections and refused to provide a single substantive answer. Plaintiff was in the process of filing a Motion to

Compel when the court granted SACMC’s Motion for Summary Judgment.

Page 36

J. The Trial Court Erred When It Failed to Consider the Allegations in

Plaintiff’s Sixth Amended Petition

Plaintiff’s Fourth Amended Petition clearly brought claims against SACMC

directly, and even under that pleading, a grant of summary judgment to SACMC

would have been erroneous. Plaintiff’s Sixth Amended Petition, however, made it

clear beyond any doubt that SACMC was being sued for its own conduct, and not

merely for Dr. Brewer’s actions. The court thus erred when it failed to consider

the new allegations in Plaintiff’s Sixth Amended Petition which was filed on May

4, 2016, a week before the summary judgment hearing on May 11, 2016. This

resulted in an erroneous grant of summary judgment to SACMC, as SACMC’s

Motion for Summary Judgment was based on stale factual allegations which were

superseded by the allegations in the Sixth Amended Petition.

SACMC’s Motion for Summary Judgment argued that because the court had

previously dismissed Dr. Brewer from the case, SACMC should also be dismissed

because “Plaintiff alleges no direct or separate liability claims against SACMC

above and apart from the actions of its agent, Brewer.” SACMC’s Motion for

Summary Judgment as a Matter of Law, p. 3 (hereafter “SACMC Motion for

Summary Judgment”). SACMC based its argument on the statement in Plaintiffs’

Fourth Amended Petition that Brewer “was and is employed by and acting in

furtherance of the business of [SACMC] and its medical practices” and “at all

Page 37

times acted for SACMC.” Id., p. 3. SACMC thus contended that “SACMC’s only

potential liability sounds in the doctrine of respondeat superior.” Id.

While Dr. Montoya had no need to correct his previous pleading on this

issue, as even the Fourth Amended Petition made it clear that Dr. Montoya sought

to hold SACMC liable for its own conduct and not merely the conduct of Dr.

Brewer2, Plaintiffs’ Sixth Amended Petition showed beyond doubt that SACMC is

not being sued only under a respondeat superior theory for Dr. Brewer’s actions.

Plaintiff’s Sixth Amended Petition thus includes the following statements:

Dr. Brewer is individually liable for his own illegal, improper acts and

omissions. At various times Dr. Brewer acted for himself, (SACMC) and/or

his group of hospitalists.

Each Defendant in this case (i.e., SACMC and Dr. Brewer), and

WTMA and Dr. Brewer’s group of hospitalists (eventual defendants)

are being sued for their individual roles and conduct in the

monopolization, attempted monopolization, conspiracy to

monopolize, and group boycott/concerted refusal to deal. While each

of these entities may have engaged in the illegal conduct through their

agents or representatives, they are being sued for their individual roles

and conduct and not simply under a respondeat superior theory of

liability due to actions by Dr. Brewer.

Plaintiff’s Sixth Amended Petition, p. 4, ¶ 6.6 and p. 14, ¶ 12.2 (CR 39).

After this pleading was filed, the fact that SACMC was being sued for its own

conduct became indisputable. The sole basis of SACMC’s Motion for Summary

2

Plaintiff’s Fourth Amended Petition repeatedly makes it clear that SACMC was being sued for its own conduct,

and not merely for vicarious liability for statements made by Dr. Brewer. Paragraph 6.1 of Plaintiff’s Fourth

Amended Petition, for example, clearly stated that “This case is for the anticompetitive actions of the Defendants

posing a danger of monopolization or attempted monopolization of patient choice and causing patients to pay more

for medical care and injuring consumer patients.” Plaintiff’s Fourth Amended Petition, p. 2, paragraph 6.2

Page 38

Judgment, that “SACMC’s only potential liability sounds in the doctrine of

respondeat superior,” did not exist even before the Sixth Amended Petition was

filed, and it certainly did not exist afterwards.

The Supreme Court’s opinion in Sosa v. Central Power & Light, 909 S.W.2d

893, 895 (Tex. 1995) shows that the trial court erred when it failed to consider the

allegations in Plaintiffs’ Sixth Amended Petition. In Sosa, the Court stated as

follows:

Because the Sosas timely filed their second amended original petition, it

superseded their first amended original petition containing the statements on

which the defendants based their motion for summary judgment. Contrary to

statements in live pleadings, those contained in superseded pleadings are not

conclusive and indisputable judicial admissions. Drake Ins. Co. v. King, 606

S.W.2d 812, 817 (Tex.1980). Therefore, the basis for the defendants' motion

no longer existed and summary judgment was improper.

Id. at 895. Sosa has recently been reaffirmed by cases such as Lee Homes of

Limestone County, Inc. v. First National Bank, 2015 WL 5175469, at *2

(Tex.App.-Waco 2015, no pet.). Sosa was also cited in Myers v. Southwest Bank,

2014 WL 7009956, at *6 (Tex.App.-Fort Worth 2014, pet. denied). Myers

summarized the facts and holding from Sosa as follows:

The defendants in Sosa attempted to meet their burden by arguing that the

plaintiffs' own pleadings established that the plaintiffs' claims were barred

by limitations. The plaintiffs then amended their petition to remove the

statements on which the defendants had relied in their motion. The

defendants' motion, which was based entirely on the plaintiffs pleading

themselves out of court, no longer had any basis. Summary judgment was

therefore improper.

Page 39

Id. at *6. The same is true in this case, as Plaintiffs’ Sixth Amended Petition

made it clear that the entire basis for SACMC’s Motion for Summary Judgment no

longer existed after that amended pleading was filed. The court’s grant of

summary judgment to SACMC was therefore improper.

What is EMTALA (The Emergency Medical Treatment and Active Labor Act

Cause of Action)?

The Emergency Medical Treatment and Active Labor Act (hereinafter

EMTALA) is Section 1867(a) of the Social Security Act, and is codified within the

section of the U.S. Code which governs the Medicare program. (42 USC 1395cc)

The Healthcare Financing Administration (hereinafter HCFA) is the federal agency

that governs Medicare payments and has the statutory authority to issue regulations

concerning the implementation of EMTALA. (HCFA Interpretive Guidelines V-

15)

EMTALA is a statute which governs when and how a patient must be (1)

examined and offered treatment or (2) transferred from one hospital to another

when he is in an unstable medical condition (3) the list of doctors on staff that are

on call and the fair assignment of patients to doctors. 42 USC 1395cc(a)(1)(I)(iii),

HCFA Interpretive Guidelines V-15

Page 40

But in this case it does not involve patient dumping but the refusal to follow

the mandatory call list of EMTALA to fairly distribute the paying nephrology

patients under Medicare or private insurance.

L. Maintaining the Call List Requirement

Medicare –participating hospitals must maintain a list of physicians who are

on call to provide emergency care to individuals presenting to the emergency

room. (42 USC 1395cc(a)(1)(I)(iii))

Under EMTALA the hospital and its officers are responsible for maintaining an

on-call roster for the emergency department. (42 USC 1395cc(a)(1)(I)(iii))

San Angelo Community Medical Center is a Medicare –participating

hospital.

M. All nephrology patients that go on to dialysis are covered under Medicare-

thus are paying patients for the doctor and hospital

The avowed purpose of the statute is to prevent hospitals from rejecting

patients, refusing to treat them, or transferring them to "charity hospitals" or

"county hospitals" because they are unable to pay or are covered under the

Medicare or Medicaid programs and to fairly distribute patients coming to the

emergency room between physicians so the physician receives paying and non-

Page 41

paying patients. (42 USC 1395cc (a)(1)(I)(iii)), HCFA Interpretive Guidelines V-

15.

This is a key in this case, the patients coming to the emergency room for

nephrology care are guaranteed to pay the doctor for services through Medicare.

Dr. Brewer wants the paying patients to go to the other nephrologist in the hospital

owned group and to not have Dr. Montoya receive his fair share of patients. Dr.

Brewer is paid by the other nephrologist for coverage.

The purpose of the call list is to allow all physicians to equally receive call and

paying and non-paying patients.

A brief to the Trial Court an EMTALA was provided after the Motion to Dismiss

hearing (CR 185). This brief has even more details.

Wherefore the Plaintiffs based upon EMTALA request the Orders

dismissing Dr. Brewer be reversed and the Summary Judgment be reversed.

N. Summary Judgment in favor of SACMC

Despite Appellants valid claims under In Re Memorial Hermann and the

legal arguments and facts proven in the response to the Motion for Summary

Judgment (Supp. CR ____) the trial court committed reversible error by granting

the Defendant SACMC Summary Judgment (CR 336). Thus this Court should

reverse the granting of the Summary Judgment and render judgment for Appellants

denying the Summary Judgment.

Summary Judgment for the Defendant is only proper if, as a matter of law,

Page 42

the Plaintiff cannot succeed on any theory pled. See G & H Towing Co. v. Magee,

347 SW3d 293, 296-97 (Tex.2011); see City of Houston v. Clear Creek Basin

Auth., 589 SW29 671, 678 n.5 (Tex. 1979) Tex.R.Civ. 166a(a); Gibson v.

Methodist Hosp., 822 SW2d 95, 17 U.C.C. Rep. Serv. 2d 81 (Tex. App.-Houston

[1st Dist.} 1991, writ denied). The function of summary judgment is not to deprive

litigants of their right to a full hearing on the merits of any real issue of fact or their

right to trial by jury. (see Tex.R.Civ.Proc 166 a) Rather, the goal of the procedure

is the prompt elimination of patently unmeritorious claims or untenable defenses

(See Means v. ABCABCO, Inc., 315 S.W.3d 209 (Tex. App. Austin 2010); Cedyco

Corp. v. Whitehead, 253 S.W.3d 877 (Tex. App. Beaumont 2008); Montemayor v.

Ortiz, 208 S.W.3d 627 (Tex. App. Corpus Christi 2006); Armstrong v. Hixon, 206

S.W.3d 175 (Tex. App. Corpus Christi 2006); and the summary termination of a

case when it clearly appears that only questions of law are involved and that there

are no genuine issues of fact. (See Bliss v. NRG Industries, 162 S.W.3d 434 (Tex.

App. Dallas 2005); Martin v. Commercial Metals Co., 138 S.W.3d 619 (Tex. App.

Dallas 2004). The trial court erred in not finding genuine issue of fact and not

following the Texas Supreme Court in In Re Memorial Hermann and In Re Lipsky

and City of Dallas.

The Appellant in the response to the Motion for Summary Judgment proved

the facts stated on pages 13-18 above through the factual affidavit attached to the

Page 43

response for Summary Judgment (Supp. CR____).

The Defendant in their Motion for Summary Judgment did not disprove any

element of the Plaintiffs cause of actions of Dr. Montoya’s Sixth Amended

Petition (CR 300). All the Defendant did was state unsworn statements that are

not facts and rely on the Order of Dismissal in favor of Dr. Brewer. The

Defendants did not attach any evidentiary affidavits to their Motion for Summary

Judgment disputing the facts of the Plaintiff and the independent affidavit of Dr.

Hunt (Supp. CR ________) (Supp. CR_____).

Thus the Motion for Summary Judgment should be reversed and denied.

To succeed on a traditional Motion for Summary Judgment, the Defendant

must show that there is no genuine issue of material fact and that it is entitled to

Summary Judgment as a matter of law. Tex.R.Civ.P. 166a(c); Mann Frankfort

Stein & Lipp Advisors, Inc. v. Fielding, 289, SW3d 844, 848 (Tex. 2009); Nixon v.

Mr. Prop. Mgmt. Co., 690 SW2d 546, 548 (Tex. 1985). To meet this burden, the

Defendant must conclusively prove all essential elements of its claim. MMP, Ltd.

v. Jones, 710 SW2d 59, 60 (Tex. 1986). A matter is conclusively established if

reasonable people could not differ on the conclusion to be drawn from the

evidence. City of Keller v. Wilson, 168 SW3d 802, 816 (Tex. 2005). If the

Defendant establishes its right to summary judgment as a matter of law, the

burden shifts to the Plaintiff to present evidence that raises a genuine issue of

Page 44

material fact. Boudreau v. Fed. Trust Bank, 115 SW3d 740, 743 (Tex. App.-

Dallas 2003, pet. Denied). In deciding whether to grant Defendant’s motion, the

court must take as true all competent evidence favorable to the Plaintiff’s favor.

Limestone Prods. Distrib., Inc. v. McNamara, 71 SW3d 308, 311 (Tex. 2002);

Rhone-Poulenc, Inc. v. Steel, 997 SW2d 217, 223 (Tex. 1999); Nixon, 690 SW2d

at 548-49.

The Plaintiffs presented proof to deny the Summary Judgment in the factual

affidavits of Dr. Montoya (Supp. CR ____) and Dr. Hunt (Supp. CR___).

No Summary Judgment evidence was presented by the Defendant SACMC.

Dr. Montoya’s response to the Motion for Summary Judgment objected to the

Motion because there is no evidence attached to the Motion (Supp. CR______).

The statements in the body of the argument are heresay and Dr. Montoya requested

the Court to strike those statements as defective and not meeting the standard for

Summary Judgment evidence. The statements in the argument are conclusory and

without factual basis as required by the Texas Rules of Civil Procedure (TRCP

166a(c)) (CR 208).

Dr. Montoya further objected to the argument because it did not meet the

standard set forth for an affidavit in the Texas Supreme Court Radio Station KSCS

v. Jennings 750 S.W.2d 760 (Tex. 1988). The Supreme Court held that affidavit

for summary judgment failed to establish that it was based on personal knowledge

Page 45

and was thus inadequate summary judgment proof. The argument in the Motion is

not a factual affidavit showing proof.

Dr. Montoya objected to the argument because it was not an affidavit which

must state facts and cannot merely recite legal conclusions. Brownlee v. Brownlee,

655 S.W. 2d 111, 112 (Tex. 1984). In this case the argument does not meet the

KSCS or Brownlee standards.

O. SUMMARY-JUDGMENT EVIDENCE PRESENTED BY PLAINTIFF

To support the facts in this response, Dr. Montoya offered the following

summary-judgment evidence attached to this response and incorporates the

evidence into this response by reference.

Exhibit 1: Certified copy of Pleading approved by the Texas Supreme Court

as valid causes of action in In Re Memorial Hermann (Supp. CR ______).

Exhibit 2: Is the affidavit of Steve F. Montoya, Jr., M.D. one of the

Plaintiffs. In the affidavit he states the facts and refutes the allegations for the

dismissal under TRCP 91(a) and the Anti-Slapp allegations (Supp. CR_______).

Exhibit 3: Is the affidavit of Dr. Hunt that confirms the causes of actions

and the facts of the Anti-Trust actions of San Angelo Community Medical Center

(Supp. CR_____).

Page 46

P. Defendant did not disprove plaintiff’s cause of action as a matter of law.

A defendant is entitled to summary judgment on a plaintiff’s cause of action

if the defendant can disprove at least one element of the cause of action as a matter

of law. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); see Tello v.

Bank One, N.A., 218 S.W.3d 109, 113 (Tex. App.—Houston [14th Dist.] 2007, no

pet.). SACMC has not disproved any of Plaintiffs elements in their causes of

action (CR 208).

The Traditional Motion for Summary Judgment by SACMC was nothing

more than a thinly vailed attempt to get around the untimely filing of the Motion to

Dismiss under 91(a) and the Anti-Slapp Motion Tex.Civ.Prac. & Rem. Code

§§27.001 et. seq.

The trial court erred in granting the Summary Judgment because Defendant

SACMC did not show there was not genuine issue of material fact and/or

Plaintiffs’ factual affidavits proved genuine issues of material facts.

The finding of the Court dismissing Dr. Brewer (CR 194 and 196) is not

controlling to the causes of action brought against SACMC. The causes of action

against SACMC cannot be controlled by the dismissal of Dr. Brewer without valid

Summary Judgment evidence, which there is none.

Page 47

The Defendant SACMC does not even attach a single factual affidavit or any

affidavit in support of their Summary Judgment (CR 208). The only thing relied

upon is the Court prior Order of Dismissal of Dr. Brewer’s claims.

SACMC filed a Motion for Special Exceptions on August 14, 2015 (CR 17)

and the court granted the Special Exceptions on December 3, 2015 (CR 75). The

Plaintiffs Petition was amended to comply with the Court order. SACMC should

have filed a Motion to Dismiss when it filed the Special Exception. The Motion

for Summary Judgment is a untimely Motion to Dismiss that has no evidence or

proof attached (CR 208).

The purpose of this lawsuit has nothing to do with the Defendants

Constitutional Rights to speak freely, associate freely and participate in

governmental as permitted by law. These are the requirements to meet in filing a

Motion under the Anti-Slapp Statute Tex.Civ.Prac. & Rem. Code §§27.001 et. seq.

and as set out in Paulsen v. Yarrell 455 SW3d 192 (Tex.-App.-Houston [1st Dist.]

2014, no pet.) (quoting In Re Estate of Check 438 SW3d at 836).

The Texas Supreme Court agreed that clear and specific evidence under the

Texas Anti-Slapp Statute Chapter 27 includes relevant circumstantial evidence. (In

Re Lipsky). The evidence of the Plaintiff in the Petitions and in his response

Page 48

affidavits of Dr. Montoya and Dr. Hunt meets the In Re Lipsky standard (see CR

300, 94, 177, 331and Supp. CR____ ).

The Defendant SACMC did not even join in Dr. Brewer’s Motion to

Dismiss under 91(a) or his Anti-Slapp motion (CR 76 and 119). All the actions

SACMC were untimely.

Issue 3

1. Pursuant to Tex.Civ.Proc.91(a)3(b) a Motion to Dismiss must be filed at

least 21 days before the Motion is heard. The original Motion to Dismiss

was filed on July 7, 2016 (CR 119). The hearing was set by the Court for

January 12, 2016 (CR 91-93). An amended Notice of Hearing was set on

January 29, 2016 (CR 183). The amended Notice of the Motion to Dismiss

was sent on January 13, 2016 (CR 184). This notice was less than the 21

days required by Tex.Civ.Proc.91(a)3(b). The amended Motion to Dismiss

was filed on January 7, 2016 (CR 119). Dr. Montoya objected to the

Amended Motion of Dr. Brewer as not being allowed without restarting the

period. The Court erred in allowing the Motion to Dismiss under

Tex.Civ.Proc.91(a) to be heard. Dr. Montoya objected to the hearing in his

Supplemental Response to the Motion to Dismiss (CR 177). Tex.Civ.Proc.

91(a)5(d) require the hearing to be reset Tex.Civ.Proc.91(a)6. By filing the

Amended Motion Dr. Brewer waived the right to be heard.

Page 49

2. Pursuant to Tex.Civ.Prac. & Rem. Code §§27.001 et. seq. a Motion to

Dismiss a legal action under this section must be filed not later than the 60 th

day after the date of service of the legal action Tex.Civ.Prac.Remedies Code

§27.003(b). Dr. Brewer was originally served on October 9, 2015 (Supp.

CR_____). Dr. Brewer filed his Motion to Dismiss under Tex.Civ.Prac. &

Rem. Code §§27.001 et. seq. on December 8, 2015 which was within the 60

days after the date of service. Dr. Brewer then filed an Amended Motion to

Dismiss on June 7, 2015 (CR 119) which is outside the sixty day

requirement of Tex.Civ.Prac.Remedies Code §27.003(b). Dr. Montoya

objected to the untimely filed affidavits and Amended Motion (CR 177).

The Court should strike the affidavits as untimely filed and thus the Motion

should be denied as not meeting the first proving of In Re Lipsky.

CONCLUSION AND PRAYER

The Appellants showed in their response to the Motion for Summary

Judgment and the factual affidavits in the response to Motion for Summary

Judgment that this Court should (1) reverse the granting of the Summary Judgment

and (2) remand the case to the trial court for trial. The Appellants showed valid

causes of actions and facts and the this court should reverse the Orders of

Dismissal for Dr. Brewer and remand the case to the trial court for trial.

Page 50

Respectfully Submitted,

Paul Craig Laird II Law Firm, PLLC.

/s/ Paul Craig Laird II

By: Paul Craig Laird II

SBOT #11795420

800 West Airport Freeway

Suite 800, LB 6015

Irving, Texas 75062

(972) 554-0929

(214) 260-4935 fax

pcl880@aim.com

ATTORNEY FOR APPELLANTS

CERTIFICATE OF COMPLIANCE

Based on a word count using Microsoft Word 2007, this Appellant’s Brief

contains 12,584 words excluding the portions of the brief excluded from the word

count under T.P.A.P.94(i)(l).

/s/ Paul Craig Laird II

Paul Craig Laird II

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing

Appellant’s Brief was served on the following by email on the 21st day of

November, 2016.

/s/ Paul Craig Laird II

Paul Craig Laird II

Appellee Kirk Brewer, M.D. counsel of record:

Robert B. Wagstaff

McMahon Surovik Suttle, P.C.

400 Pine Street, Suite 800

Abilene, Texas 79601

Appellee San Angelo Community Medical Center counsel of record:

James J. McGoldrick

Jones Carr McGoldrick, LLP

5910 N. Central Expressway, Suite 1700

Dallas, Texas 75206

Page 51

APPENDIX

(1) Dr. Montoya’s Fourth Amended Original Petition

(2) Dr. Montoya’s Sixth Amended Original Petition

(3) Defendant Kirk Brewer, M.D.’s Motion to Dismiss and for Recovery of

Costs and Attorney’s Fees

(4) Defendant Kirk Brewer, M.D.’s Amended Motion to Dismiss and for

Recovery of Costs and Attorney’s Fees

(5) Response to Motion to Dismiss

(6) Supplemental Response to Motion to Dismiss

(7) Order on Defendant Kirk Brewer, M.D.’s Motion to Dismiss per the Texas

Citizens Participation Act

(8) Order on Defendant Kirk Brewer, M.D.’s Motion to Dismiss per Rule 91(a)

of the Texas Rules of Civil Procedure

(9) Defendant San Angelo Community Medical Center’s Traditional Motion for

Summary Judgment

(10) Plaintiffs Steve F. Montoya, Jr. M.D., West Texas Renal Care and West

Texas Nephrology’s Response to Defendant San Angelo Community

Medical Center’s Motion for Summary Judgment and Objection and Request

for Continuance

(11) Order of Defendant San Angelo Community Medical Center’s Summary

Judgment

(12) Response to Motion to Dismiss of San Angelo Community Medical Center

(13) Texas Rule of Civil Procedure 91(a)

(14) Texas Civil Practice & Remedies Coe §27.001 et.seq.

(15) In Re Memorial Hermann Hospital System, 464 S.W. 3d 686 (2015)

Page 52

(16) In Re Lipsky, 460 SW3d 579 (Tex.2016)

(17) City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (2016)

Page 53

TAB NO. 1

Filed for Record

1/11/2016 4:15:34 PM

Sheri Woodfin, District Clerk

Tom Green County, Texas

CAUSE NO. B-15-0285-C

STEVE F. MONTOYA, JR., M.D. § IN THE DISTRICT COURT OF

WEST TEXAS RENAL CARE §

WESTTEXASNEPHROLOGY §

§

vs. § 119th JUDICIAL DISTRICT

§

SAN ANGELO COMMUNITY §

MEDICAL CENTER AND §

KIRK BREWER, M.D. § TOM GREEN COUNTY, TEXAS

PLAINTIFF'S FOURTH AMENDED ORIGINAL PETITION

Plaintiff's STEVE F. MONTOYA, JR., M.D., West Texas Renal Care and West Texas

Nephrology file this Fourth Amended Original Petition and would show:

1. This case should be conducted under Discovery Level Two until the Court enters a Level

Three Scheduling Order.

2. Plaintiff STEVE F. MONTOYA, JR., M.D. is an individual residing in Tom Green

County, Texas. Plaintiff West Texas Renal Care is a Texas Corporation with its principal

place of business in Tom Green County, Texas. Plaintiff West Texas Nephrology is a

Texas-Professional Association with its principal place of business in Tom Green County,

Texas.

3. Defendant San Angelo Community Medical Center is a Delaware LLC that is registered

to do business in the State of Texas and has its principal place of business in San Angelo,

Tom Green· County, Texas. San Angelo Medical Center can be served by serving its

registered agent Corporation Service Company d/b/a CSC-Lawyers Incorporating Service

Company as its registered address, 211 E. 7ili Street, Suite 620, Austin, Texas 78701.

Defendant Kirk Brewer, M.D. is an individual whose principal place of business and

residence is in Tom Green County, Texas. Defendant Kirk Brewer, M.D. can be served

at his office at- San Angelo Medical Center at 3501 Knickerbocker Rd., San Angelo,

Texas 76904.

4. : Venue and Jurisdiction

PLAINTIFF'S FOURTH AMENDED ORI0Ilf18(JETIT10N Page 1 of 13

Venue is proper in Tom Green County under Tex.Civ.Prac. & Remedies Code Section

15.002(a) (1) as all or a substantial part of the events or omissions giving rise to this legal

action occurred in Tom Green County, Texas.

5. Dr. Montoya, West Texas Renal Care and West Texas Nephrology, PA have incurred and

sues for damages in the maximum amount of $ 6,400,000.00 plus three times for

exemplary damages plus attorneys and costs as allowed by law and jurisdiction is proper

in this Court.

6.1 Dr. Steve F. Montoya has practiced as a nephrologist since 1979 in San Angelo, Texas.

Dr. Montoya has practiced at San Angelo Community Hospital since 1981. Dr. Montoya

in developing, building and keeping his practice has always taken patients as an on-call

staff attending physician from the emergency room/department of San Angelo

Community Medical Center.

6.2 In developing and building a practice Dr. Montoya as a nephrologist wanted long term

kidney dialysis patients to treat in his practice. Referral from hospitals and area

physicians is extremely important to a nephrologist to building and keeping a practice.

The ability to obtain referrals from a hospital and area physicians is a primary source of

patients with kidney disease. This case is for the anticompetitive actions of the

Defendants posing a danger of monopolization or attempted monopolization of patient

choice and causing patients to pay more for medical care and injuring consumer patients.

6.3 Besides word of mouth and patient to patient referral Dr. Montoya built his patient base

from referring physicians, from referrals of patients who came to the emergency

room/department and hospital patients with kidney disease. A patient who lives in the

service area/relevant market of San Angelo Community Medical Center and needs long

term care which can include dialysis is one of the primary ways Dr. Montoya and his

entities succeed. Dr. Montoya during his 36 year career in San Angelo built his practice

including a dialysis unit that can serve 24 patients per shift.

6.4 The service area/relevant market for San Angelo Community Medical Center is Tom

Green County and contiguous counties.

PLAINTIFF'S FOURTH AMENDED ORIGilf'SfETITION Page2 of 13

6.5 Dr. Brewer is an employee of an entity owned and created by San Angelo Community

Medical Center. Dr. Brewer is the chief of staff of the hospital and head of the hospitalist

group that practices at San Angelo Community Medical Center. Dr. Montoya has been

denied the referral of patients . that come into the emergency room with kidney

problems/illness/disease. These patients are being referred to the hospital owned group.

Even Dr. Montoya's current patients are being referred to hospitalist/hospital owned

group. The group owned by the hospital is costing the patient money because the patients

have to pay for a hospitalist and are then being referred to a different nephrologist whose

group has a contract/agreement with the hospital and its owned entities. The patients are

denied the opportunity to save money. The hospitalist group charges the patients at a

higher comprehensive rate/code.

6.6 At all relevant times Dr. Kirk Brewer, as a principal officer of Community Medical

Associates and Chief of Staff of San Angelo Community Medical Center (SACMC) and

head of the hospitalist system at (SACMC) with agents/employees of (SACMC) working

under his control, direction, or in furtherance of unlawful and improper actions was and is

employed by and acting in furtherance of the business of (SACMC) and its owned

medical practice(s). Dr. Brewer is individually liable for his own illegal, improper acts

and omissions. Dr. Brewer at all times acted for (SACMC). Dr. Brewer is also liable for

the improper acts and omissions as Chief of Staff of (SACMC). Dr. Brewer, as well as

the other agents/employees of (SACMC) and/or its owned practices are liable under the

doctrine of respondeat superior and vicarious liability.

6.7 The Defendants (SACMC) and Dr. Kirk Brewer, acting by and through its

agents/employees/principals/officers acted together to carry out the improper and illegal

actions and therefore are jointly and severally liable for civil conspiracy in carrying out

their wrongful activities.

6.8 All conditions precedent to Plaintiffs recovery have been performed or have occurred.

Dr. Montoya is a hard working member of the San Angelo Medical Community. Dr.

Montoya came out of San Antonio, Texas and received a full scholarship for his

undergraduate degree at Rice University. After graduating Rice University Dr. Montoya

then went on to medical school at The University of Texas Southwestern Medical School

PLAINTIFF'S FOURTH AMENDED ORIODftr2ETITI0N Page 3 of 13

in Dallas, Texas. After Dr. Montoya finished his residency and training he went to in

west Texas. Dr. Montoya built a stellar reputation for quality patient care, excellence in

the practice of nephrology and dialysis care of the long term illness of kidney

failure/disease.

6.9 Dr. Montoya is the only nephrologist in San Angelo that speaks Spanish. Dr. Montoya

cares about his patients, his fellow medical professionals, and his community. Dr.

Montoya's practice has expanded over the years including with the referral from local

physicians, the emergency room/department and hospital consultation because of his

well-deserved reputation for quality patient care.

6.10 Dr. Montoya's skill as a nephrologist was until the hospital created its own medical

practice, a marketing asset for SACMC. Dr. Montoya received his rotating share of

referrals of patients with kidney disease/illness/failure until SACMC created its own

practice groups.

6.11 The recommendation and referral through the emergency room/department directly

affects the patient's choice of doctor. The doctor in turn decides the patient's course of

treatment and what and how the patient is coded for billing on treatment.

6.12 The choice of doctor directly affects the patient's costs and expenses both in the short

term and for long term care of kidney disease/illness/failure. Individuals with kidney

disease can require care for the rest of their life which may include dialysis.

6.13 Improperly manipulating the doctor a patient receives care from creates a cost to the

patient and improperly distorts free and informed patient choice and options for medical

care.

6.14 The correct and appropriate way for any health care provider of emergency hospital

services and nephrology service is to provide the highest quality of care to the patient.

Patients deserve to have lower costs. The illegal and unjust way of treating patients is to

manipulate their free choice in the market place. In this case it is to only refer a patient to

a hospitalist, in a group owned by the hospital, and to them only refer a patient to a

PLAINTIFF'S FOURTH AMENDED OR1Gllf~3ETITI0N Page4 of 13

nephrologist in a hospital owned group and to malign and smear a highly qualified

nephrologist in the practice at the same hospital.

6.15 The Defendants decided to then have a covert whisper campaign and not refer any

patients to Dr. Montoya.

6.16 The Defendants illegal and anti-competitive acts unfairly and wrongfully have cast Dr.

Montoya's stellar reputation under a dark cloud. Also the patients of Dr. Montoya have

been refused the services of Dr. Montoya when the patient is in the hospital. The patients

are suffering in paying higher costs and expenses for their care.

6.17 Dr. Montoya was brought up on charges of incompetent patient care for misspelled words

on a chart. These actions were just taken to discredit Dr. Montoya and his ability to

practice medicine in San Angelo and at San Angelo Community Medical Center. None

of the actions of the hospital were based on patient care but for retaliation after Dr.

Montoya complained about the Defendants anticompetitive actions. The actions also

were to hurt the reputation of Dr. Montoya in advanced abilities in nephrology. Dr.

Montoya corrected the "misspelled words" and harsh undeserved review of his charts

continued. Despite the efforts of Defendants the railroading of Dr. Montoya was not

successful.

6.18 The actions of the Defendants have a tendency to reduce or eliminate competition that is

not offset by any countervailing procompetitive justification.

Causes of Action

The causes of action are only under the laws of the State of Texas.

7. Tortious Interference with current and prospective business/patient relations

7.1 The actions of the Defendants are tortiously interfering with patient choice and care. The

actions are being taken by the Defendants to keep the Plaintiff from having a successful

nephrology practice. Defendant's actions are such that they know that their interference

will cause the Plaintiff damage in excess of the minimum judicial limits of the Court.

PLAINTIFF'S FOURTH AMENDED ORIGilf'84ETITION Page 5 of 13

Defendants intentionally interfered with Dr. Montoya's longstanding and continuous

relationships with patients and referring physicians from the emergency room/department

in a concerted effort to restrain completion and monopolize the practice of nephrology

and the treatment of long term kidney disease in the relevant market described in this

petition.

7.2 Every contract, combination or competition of the relevant defendants in restraint of trade

or commerce is unlawful and is just as it is unlawful for any person to monopolize,

attempt to monopolize or conspire to monopolize any part of trade or commerce.

7.3 The Plaintiff pleads a reduction of competition in the relevant market in general to

patients. A monopoly in this case is caused by the elimination of Dr. Montoya and is just

as harmful as it would be if driving out competition in large groups. Removal of Dr.

Montoya from the hospital and its relevant market will adversely affect and unreasonably

affect overall competitive conditions and cost patients money. The Defendants through

their actions are possessing or trying to possess monopoly power in the relevant market

and the willful acquisition or maintenance of that power is distinguished from growth

through business acumen.

7.4 The Defendants are engaging anticompetitive conduct with a specific intent to

monopolize and a dangerous probability of achieving monopoly power and the

defendants' ability to lessen or destroy completion in the relevant market and cost

patients money.

7.5 Patients are damaged by the actions of the Defendants by higher cost of care.

Patients have an absolute right under the patients Bill of Rights attached as Exhibit D to

"Participate in decisions about your care, including developing your treatment plan,

discharge planning and having your family and personal physician promptly notified of

your admission. Select providers of goods and services to be received after discharge."

The Plaintiffs did not follow the Bill of· Rights and violated the patient choice and

damaged the Defendants in violating the Bill of Rights.

7.6 The actions of the Defendants are illegal and anticompetitive.

PLAINTIFF'S FOURTH AMENDED ORIGDf465ETITION Page 6 of 13

7. 7 San Angelo Community Medical Center created its own group of doctors owned by the

hospital in both hospitalist groups and in a group named Community Medical Associates.

These groups came into existence on or about 2006. Until these groups Dr. Montoya

received his share of new patients from the hospital and emergency room. After these

groups were formed Dr. Montoya received only one referral since 2007.

Facts for Cause of Action

7.8 Realleges all facts in paragraph 6 above.

7.9 Dr. Montoya was admitted to practice nephrology at San Angelo Community Medical

Center in 1981. Dr. Montoya has full staff privileges for the practice of nephrology at

San Angelo Community Medical Center. The facts of the case are that Kirk Brewer,

M.D. was during his actions an officer and/or Chief of Staff of the medical staff of San

Angelo Community Medical Center. Kirk Brewer, M.D. was hired by San Angelo

Community Medical Center to run the hospitalist service. As an officer of the staff and

Chief of Staff Kirk Brewer, M.D. owed Dr. Montoya as a member of the staff a fiduciary

duty to not interfere by direct or indirect action with his practice of nephrology at San

Angelo Community Medical Center.

7.10 Kirk Brewer, M.D. came to San Angelo Community Medical Center in 2007. Part of Dr.

Montoya and obtaining patients is that the hospital emergency room uses a rotating

system of specialists admitted in that practice to see patients in the hospital and

emergency room. When you are the named specialist you receive a call from the

emergency room physician that a doctor with your specialty is needed for a patient. A

big part of Dr. Montoya's practice was obtaining new patients and treating existing

patients that came to the emergency room and needed a nephrologist. Since 1981 Dr.

Montoya has obtained new patients from the emergency room.

7.11 Until 2007 Dr. Montoya would receive 10-20 calls from the emergency room, per month

to treat either new or existing patients at the San Angelo Community Medical Center.

Since 2008 Dr. Montoya has only received one call from the emergency room or a

hospitalist for consultation as a nephrologist, except for one time for treatment of a new

patient or existing patient that suffered with kidney problems.

PLAINTIFF'S FOURTH AMENDED ORIGDfflgETITION Page 7 of 13

7.12 The one time for a new patient is described below. On January 24, 2014 Dr. Montoya

was called by the San Angelo Community Medical Center emergency room physician on

duty and the hospitalist Dr. Bartels. Dr. Bartels and the emergency room physician

informed Dr. Montoya that a patient was diagnosed with acute renal failure. Dr.

Montoya was informed his name was on the call board in the emergency room as

nephrologist on call. Both of the above doctors asked Dr. Montoya to consult concerning

treatment for that patient. Dr. Montoya gave an initial consult advice/orders of treatment

to both doctors. This consultation call was to Dr. Montoya at 9:38 p.m. Dr. Montoya

informed them he would come see the patient and then review the test results and

determine any additional treatment for the patient. Attached as Exhibit A is a true and

correct copy of the redacted hospital record showing the facts on January 24, 2014.

7.13 On January 25, 2014 at 8:10 a.m. Kirk Brewer, M.D. took over the hospitalists care of the

I

patient as his rotation as the hospitalist started. Then without ever seeing the patieft or

the chart Kirk Brewer, M.D. cancelled Dr. Montoya consult and treatment byl Dr.

I

Montoya and consulted another nephrologist. Dr. Montoya went to the call board! and

witnessed his name on call as the nephrologist on call on January 24 and 25, 2014. !The

San Angelo Community Medical Center is required to have an official EMT!LA

Medicare call list for on call physicians for the San Angelo Community Medical C nter

I

to take Medicare patients. This is the list my name was on and was intentionally ign1red.

This also violates a patient's right to choose their physician. This list was followed pntil

Dr. Brewer caine to San Angelo Community Medical Center and took charg~ of

hospitalists. The nephrologist he brought in for consult is one that is in a group that ~irk

I

I

Brewer, M.D. has a contract for paid services. Dr. Brewer did not see the patient hen

he removed me as the treating nephrologist he issued the change via a telephone rder

(see Exhibit B). Kirk Brewer, M.D. without seeing the patient, or chart change the

patient's doctor. This change of nephrologist was for Kirk Brewer, M.D. 's econ· mic

gain and caused Dr. Montoya economic loss. Attached as Exhibit Bis a true and cohect

I

copy of the redacted hospital record showing the facts on January 25, 2014. '

PLAINTIFF'S FOURTH AMENDED ORIGDf~7ETITION Page 8 qf 13

7.14 Kirk Brewer, M.D. by his actions of removing Dr. Montoya as the nephrologist published

a statement that Dr. Montoya was not a competent nephrologist to treat patients coming

to the San Angelo Community Medical Center emergency room. Kirk Brewer, M.D. was

aware that his actions would become known to the staff physicians of San Angelo

Community Medical Center and that he was by conduct and a whisper campaign saying

Dr. Montoya should not be allowed to treat patients at San Angelo Community Medical

Center.

7.15 Attached to this petition as Exhibit C is the true and correct sworn statement that an

existing patient of Dr. Montoya, Mrs. Welch tried to see Dr. Montoya in the emergency

room of San Angelo Community Medical Center and that the emergency room would not

call Dr. Montoya to treat his existing patient Mrs. Welch is over 90 years of age and Dr.

Montoya has treated her for at least 20 years.

7.16 Another patient of mine, whose name is withheld per privacy rights, who is also over 90

years of age and has been Dr. Montoya patient for at least 10 years requested me when

she went to the emergency room and she also was refused to see Dr. Montoya.

7.17 A patient has the absolute right to be treated by their physician. Both of the above

happened when Kirk Brewer, M.D. was President of the medical staff or an officer of the

medical staff and when he was head of the hospitalist service when the above happened.

7.18 Again by the actions of the hospitalists and emergency room physicians who are

controlled by their supervisors or lead physicians Kirk Brewer, M.D. through this actions

defamed Dr. Montoya as a qualified physician or staff at San Angelo Community

Medical Center.

7.19 Furthermore, Plaintiff is entitled to exemplary damages from the Defendant, because they

acted with malice required to support an award of exemplary damages. Defendants have

acted with a specific intent to cause injury to the Plaintiff.

7.20 Plaintiff sues under this causd of action for anticompetitive conduct and/or effect.

7.21 The Plaintiff sues for damages that are within the jurisdictional limits of this ourt.

PLAINTIFF'S FOURTH AMENDED ORIGilf£ffETITION 1 age 9 of 13

8. Tortious Interference with current and prospective business relations - Exemplary

Damage

The Plaintiff will show that these actions, set forth above, of interference are done with

malicious intent in interfering with the Plaintiffs right to peaceably conduct his business

and are done out of spite and ill will towards Plaintiff. The Plaintiff is entitled to and

sues for exemplary damages within the jurisdictional limits of this Court.

Plaintiff sues under this cause of action for anticompetitive conduct and/or effect.

9. Defamation Per Se

9.1 The statements of the Defendant constitute defamation per se in that they suggest that the

Defendant is not a competent nephrologist and should not be referred patients.

9.2 The Defendant has published the above statements on numerous occasions through a

whisper campaign and his conduct.

9.3 The defamatory statements are false. Defendant has and is publishing the remarks to

individuals and entities to harm the Plaintiff and to remove all competition illegally in an

anti-competitive action.

9.4 The statements and actions of Kirk Brewer, M.D. were published by his conduct. The

actions were referring to Dr. Montoya as a non-competent nephrologist. The statement(s)

were defamatory and caused Dr. Montoya economics loss.

9.5 The total loss is between $1,000,000.00 and $6,500,000.00 from not receiving any

referrals from the emergency room or hospitalists.

9.6 The defamatory statements are untrue. Dr. Montoya is a competent and qualified

nephrologist to treat patients at San Angelo Community Medical Center.

9.7 The actions of Kirk Brewer, M.D. were intentional or done with negligence when Kirk

Brewer, M.D. knew that the statement was false and his actions would lead a reasonable

prudent physician or patient knowing/believing of its defamatory potential.

PLAINTIFF'S FOURTH AMENDED ORIGilffJ-gETITION Page 10 of 13

9.8 As officer and as President of the medical staff Kirk Brewer, M.D. must follow the rules

at San Angelo Community Medical Center and staff of San Angelo Community Medical

Center and have a new patient in the emergency room or hospital that needs a specialist

consultation assigned to the name off the rotating consultation list. By Kirk Brewer,

M.D. not following this procedure Dr. Montoya did not receive any consultation requests

from the emergency room or hospitalist at San Angelo Community Medical Center in

2008-present and one in 2014.

10. Malice

By reference Plaintiff adopts and realleges Paragraphs 6-9 of the Original Petition as if

they were set forth herein. For further cause of action, Defendant's conduct amounts to

malice under the Texas Civil Practice and Remedies Code§ 41.007 and the common law

of Texas because Defendant's actions have and are involving an extreme degree of risk

considering the probability and magnitude of the potential harm to others. Plaintiff is

entitled to exemplary damages and does hereby sue for them.

11. Business Disparagement

The Plaintiffs reallege the allegations and facts set forth above in paragraphs 6-9.

The Defendants published disparaging comments and allegations about Dr. Montoya and

his practice. Defendants took the action(s) to harm the Plaintiffs business interests.

Defendants knew the disparagement was false and the actions were done with malice.

12, Restraint of trade

12.1 The Plaintiffs reallege the allegations and facts set forth above in paragraphs 6-9.

12.2 Plaintiff makes claim under the Texas Business and Commerce Code Section 15.21

known as the Texas Free Enterprise and Antitrust Act and it recognizes as illegal

improper attempts to abuse the patient referral of the emergency room/department and

· hospital patients, as well as conspiracies to limit patient choices by concerted illegal

action as engaged by the Defendants. The Plaintiffs seek relief for this anticompetitive

PLAINTIFF'S FOURTH AMENDED ORIGilf1{JETITION Page 11 of 13

action(s) solely under the laws established by the State of Texas concerning

anticompetitive misconduct affecting Texas citizens and patients.

12.3 In Tom Green County the Plaintiffs are in competition with the Defendants. Defendants

have derlived or attempted to derive illegal benefit and patient choice and option for care

was imp~operly

!

limited in Tom Green and contiguous counties. The area of service the

Defendants are trying to control is Tom Green and contiguous counties. The Defendants

are trying to restrain competition in these counties

I

I

12.4 Defendaiits actions are in furtherance of the combination and conspiracy and with the

I

purpose Eµtd intent of excluding the Plaintiffs from the patient care market in the relevant

market drscribed above and destroying competition from Dr. Montoya and causing a

resulting (loss and cost to patients. These acts were done with the specific intent to harm

I

both Dr. jMontoya and patients in the relevant market. These acts were done with the

specific ~tent to weaken or eliminate completion from the Plaintiffs and injure patients

and obtai~ market dominance in the relevant market. ·

I

12.5 The actitjns also hurt the patient population in the relevant market by removing or trying

I

to removt completion in the practice of nephrology.

l

12.6 The con4erted actions of the Defendants were flagrant and willful and done for the

l

purpose tf harming Dr. Montoya the Plaintiffs and patients and illegally and improperly

diverting!the patients to the hospital owned practice.

!

12.7 The acts jof the Defendants constitute illegal monopolization, attempted monopolization

and /or {onspiracy to monopolize under applicable Texas law. This case is for the

anticompbtitive actions of the Defendants posing a danger of monopolization and injuring

I

consumet patients. The Defendants are hurting patients in the overall competition in the

relevant i;narket.

i

12.8 Plaintiff ~ues under this cause of action for anticompetitive conduct and/or effect.

13. Damages~

l

The PiaiJtiffs

i

sue for actual damages including consequential damages, mental anguish,

lost busi~ess reputation, attorney's fees as allowed by law and other actual damages in

t

I

PLAINTIFF'S ~OURTH AMENDED ORIGilf-,,fETITION Page 12 of 13

the maximum amount of$ 6,400,000.00 plus attorney's fees and costs as allowed by law.

An amount is also sued for statutorial additional trebling for exemplary damages do to the

malicious and egregious conduct of the Defendants.

Prayer for Relief

For these reasons Plaintiff requests that:

1. Plaintiff prays that citation and notice issue as required by law and that the Court

grant the relief requested in this petition.

2. Plaintiff be awarded damages within the jurisdiction limits of this Court.

3. Plaintiff be award exemplary damages within the jurisdictional limits of the

Court.

4. Reasonable attorney's fees.

5. Costs of Suit.

6. Such other and farther relief to which Plaintiff may be justly entitled including but

not limited to damages within the jurisdictional limits of this Court, pre and post

judgment interest as allowed by law.

Respectfully Submitted

Paul Craig Laird II Law Firm, PLLC

Isl Paul Craig Laird II

By: Paul Craig Laird II

800 W. Airport Freeway

Suite 880 LB 6015

Irving, TX 75062

972-554-0929

214-260-4935- fax

pcl880@aim.com

SBOT 11795420

Attorney for Plaintiff

PLAINTIFF'S FOURTH AMENDED ORIGilf~ZETITION Page 13 of 13

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12/16/2015 WBD 13123 FAX 3252244284 West Toxo, Nophrology ••• CRAIG LAIRD M'TORNBV llJ003/00 3

Aprll 17, 2014

I am Karan~ Tims~· the· daughter of Eunice Welch. I am writing to you on her behalf

concerning ·hetadrnlssfon to SACMC on 11/28/2011. When -asked by the ER admission

staff.: wctr.eplled that "Dr. Montoya" was her doctor. We were admitted to the

hcspltalfsta'· aervtce. We do not appreciate the fact that we did not have our physician

of ohbfce at1he hospital. Please correct this to help maintain quality patient care.

Sincerely,

Karen Tims ?,

?(.u.-11~

Stateof ~fJ.J

County o f ~ ~ .

Su~bed and·swo~ to before me this _.f1!t;;of,__.~"""-4~-

.... ----'-..:...~---..:..l_fl'--

;·RoamiARY~,=.

My~': .. .·

• Auguat11. 20

175

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"2PBOR•

Notlc~ of Patient Rights and Responslbllltles

You have the right to:

• Be treated In a dignified and respectful manner and lo • Receive Information about lhe outcomes of your

receive reasonable responses to reasonable requests care, treatment and services, Including unanticipated

for service. outcomes.

• To erteotlve communication that provides fnformaUon In • Give or withhold Informed consent when making

a manner you undersland, In your preferred language

with provisions of lnterpreUng or translallon services, decisions about your care, treatment and services.

at no cost and In a manner that meets your needs In

the event of vision, speech hearing or cognitive • Receive Information about benefits, risks, side

Impairments. lnformaUon should be provided In easy to effects to proposed care, treatment and services: the

understand terms that wlll allow you to formulate likelihood of achieving your goals and any potential

Informed consent. problems that might occur during recuperation from

proposed care, treatment and service and any

• Respect for your cultural and personal values, beliefs reasonable alternatives to the care, treatment and

. and. preferences. ---·· - - - . . services proposed,

~ •.f~rsQo~! imya,.w... pr~QY Qf. Y.9.Vr heol!h loforcnaUon • Give or withhold fnformecf conseritto~recordlngs, ...

and to. receive a nollce of the faollfty'e prlVaoy

pracUces. fllmlng or obtaining Images of you for any purpose

other than your care.

• Pain management.

• Pardclpate In orrefuse to participate In research,

• Accommodation for your rellglous and other spiritual fnvestfgatJon or cllnlcal ~lals wltho~ Jeopardlzlng

services. . . - your access to care and services unrelated to the

• ·Te aooess.rreque~t a.~endmen1. to and obtarn · research.

lnformaUon on dfscf9$urea of your health lnrormallon In

accordance. with law and·regulallon within a . • Know the names of the praotJUoner who has primary

reasonable time frame. responsibility for your care, treatment or services and

the names of other practitioners providing your care.

• To have:a·tanttly:m~.rnber, friend or other support

fndfvlduano:ba.:p~Q'ent Wlt'1 you during the CQurse of • Formulate advance directives concerning care to be

~ur- stay, unless-tnat ·pereon'f.presence Infringes on received at end•of•llfe and to have those advance

others' rights, safety otls medfcally oontralndlcated. directives h~nored to the extent of the facUlty's

• eare·o, services provided withoufdlsorlmlnatlori based abfflty to do so In accordance with law and regulation.

You also have the right to review or revise any

·on ~ge, race, ethnlclty,.rellglon, culture, language,

physToal or mental·dlsablllt~ socloeconomlo stalus, advance directives. ·

sex, sexual·olfentatfon, anti gender Identity or

expression. • Be free from neglec~ exploltatlon; and verbal, mental,

physical and sexual abuse.

, Partlclpate·Jn decisions abou~ your care, lnoludlng

develdplng yo.ur. treatm•nt plan, discharge P.lannlng • An environment-that Is safe, preserves dignity and· ·

· ·and ·JiavlnU!QUJ- fainffy.encr. personal physician

promptly noUffed of your admission. contributes to a positive self-Image.

, SelecJ.r>19vlders of goods and services to be received • Be free from any forms of restral nt or secluslon. used

alterdlscharge. as a means of convenience, discipline, coercion or

retallatlonj and to have the least restrictive method

• Refuse care, treatment.or services In aooordance with of restraint or secluslon used only when necessary to

law and regulatlon and to leave the facility against ensure patient safety.

advice of tne physician.

, Have a surrogate decision-maker parllolpate In oare, , Access protective and advocacy services and to

treatment and services deol~lons when you are unable receive a list of such groups upon your request.

to make your ow,, _decisions. .

Patient BJgb·te ·and Responsibilities

ADM•l90l0f1MS,,tfX Page J of 2

J _ _ _ _ _ ___

04/11 (Rev. 08/12; 07/}_3, 03/14, 07/14)

J PAT #1

ADMIT DATB:

SEX1 AGB1

CHART #:

DOB:

ATT, OR, 1 .

176

TABN0.2 _

Filed for Record

5/4/2016 6:35:37 PM

Sheri Woodfin, District Clerk

Tom Green County, Texas

CAUSE NO. B-15-0285-C

STEVE F. MONTOYA, JR., M.D. § IN THE DISTRICT COURT OF

WEST TEXAS RENAL CARE §

WESTTEXASNEPHROLOGY §

§

VS. § 119th JUDICIAL DISTRICT

§

SAN ANGELO COMMUNITY §

MEDICAL CENTER AND §

KIRK BREWER, M.D. § TOM GREEN COUNTY, TEXAS

PLAINTIFF'S SIXTH AMENDED ORIGINAL PETmON

Plaintiff's STEVE F. MONTOYA, JR., M.D., West Texas Renal Care and West Texas

Nephrology file this Sixth Amended Original Petition and would show:

1. This case should be conducted under Discovery Level Two until the Court enters a Level

Three Scheduling Order.

2. Plaintiff STEVE F. MONTOYA, JR., M.D. is an individual residing in Tom Green

County, Texas. Plaintiff West Texas Renal Care is a Texas Corporation with its principal

place of business in Tom Green County, Texas. Plaintiff West Texas Nephrology is a

Texas Professional Association with its principal place of business in Tom Green County,

Texas.

3. Defendant San Angelo Community Medical Center (SACMC) is a Delaware LLC that is

registered to do business in the State of Texas and has its principal place of business in

San Angelo, Tom Green County, Texas. San Angelo Medical Center can be served by

serving its registered agent Corporation Service Company d/b/a CSC-Lawyers

Incorporating Service Company as its registered address, 211 E. 7th Street, Suite 620,

Austin, Texas 78701.

Defendant Kirk Brewer, M.D. is an individual whose principal place of business and

residence is in Tom Green County, Texas. Defendant Kirk Brewer, M.D. can be served

at his office at San Angelo Medical Center at 3501 Knickerbocker Rd., San Angelo,

Texas 76904.

PLAINTIFF'S SIXTH AMENDED ORIGINAL PEmION Page 1 of25

JQQ

Other participants in the anticompetitive conspiracy against Plaintiffs include Dr.

Brewer's group of hospitalists (exact name unknown), West Texas Medical Associates

("WTMA") and groups affiliated with the hospital. These entities and individuals are not

defendants at this time.

4. Venue and Jurisdiction

Venue is proper in Tom Green County under Tex.Civ.Prac. & Remedies Code Section

15.002(a) (1) as all or a substantial part of the events or omissions giving rise to this legal

action occurred in Tom Green County, Texas.

5. Dr. Montoya, West Texas Renal Care and West Texas Nephrology, PA have incurred and

sues for damages in the maximum amount of$ 6,400,000.00 plus three times exemplary

damages plus attorneys' fees and costs as allowed by law. Until 2007 Dr. Montoya

would receive 10-20 calls from the emergency room per month to treat either new or

existing patients at the San Angelo Community Medical Center. Since 2008 Dr.

Montoya has only received one call from the emergency room or a hospitalist for

consultation as a nephrologist, except for one time for treatment of a new or existing

patient that suffered with kidney disease/problems. The lack of referrals caused

substantial injury to Dr. Montoya and damaged his ability to compete, because he

depended on these referrals and consults to build his practice. A majority of patients who

need kidney treatment/ suffer from kidney disease in a hospital later need continuing care

for their kidneys or related problems; the most common of such continuing treatments is

kidney dialysis. A typical kidney dialysis patient will need treatment for average of 6

years, and each such patient would mean revenue to Dr. Montoya's practice of

approximately $100,000 per year. Dr. Montoya estimates that he has lost at least 100

long term kidney dialysis patients from 2007 to the present due to the Defendants'

anticompetitive scheme to refuse to give him patient referrals or consults. He estimates

that this lack of referrals has thus cost him $3,000,000 to $6,500,000 over that period of

time.

6.1 Dr. Steve F. Montoya has practiced as a nephrologist since 1979 in San Angelo, Texas.

Dr. Montoya has practiced at San Angelo Community Hospital since 1981. Dr. Montoya

in developing, building and keeping bis practice, has always taken patients as an on-call

Page 2 of25

PLAINTIFF'S SIXTH AMENDED ORIGI8~1PETITION

staff attending physician from the emergency room/department of San Angelo

Community Medical Center.

6.2 In developing and building a practice Dr. Montoya as a nephrologist wanted long tenn

kidney dialysis patients to treat in his practice. Referral from hospitals and area

physicians is extremely important to a nephrologist to building and keeping a practice.

The ability to obtain referrals from a hospital and area physicians is a primary source of

patients with kidney disease. Defendants in this case conspired to deprive Plaintiffs of

referrals needed for his nephrology practice. This case is for the anticompetitive actions

of the Defendants posing a danger of monopoliz.ation or attempted monopoliz.ation of

patient choice and causing patients to pay more for medical care and injuring consumer

patients.

6.3 Besides word of mouth and patient to patient referral Dr. Montoya built his patient base

from referring physicians, from referrals of patients who came to the emergency

room/department and hospital patients with kidney disease. Dr. Montoya,s practice

depends on finding a patient who lives in the service area/relevant market of San Angelo

Community Medical Center and needs long tenn care which can include dialysis.

Dialysis care is one of the primary ways Dr. Montoya and his entities succeed. Dr.

Montoya during his 36 year career in San Angelo built his practice including a dialysis

unit that can serve 24 patients per shift.

6.4 The service area/relevant market for San Angelo Community Medical Center is Tom

Green County and contiguous counties. The service area/relevant geographic market, for

the purposes of all of Plaintiff's claims for antitrust violations and other anticompetitive

conduct, is Tom Green County and contiguous counties. Patients needing emergency

care for kidney ailments are not likely to travel far from their homes for such treatment,

so the relevant geographic market for hospital nephrology services and for nephrology

consults and referrals is therefore Tom Green County and contiguous counties. Patients

needing longer term nephrology services, such as kidney. dialysis, often need repeated

and frequent care from a doctor or dialysis clinic near their home or residence. Such care

is often required multiple times per week. Because patients are not likely to travel far for

such repeated and frequent doctor and clinic visits, doctors and clinics located far from

PLAINTIFF'S SIXTH AMENDED ORIGIN3'cf2TITION Page 3 of25

Tom Green County are not a substitute for nephrology services in the Tom Green County

area, and the relevant geographic market is therefore Tom Green County and contiguous

counties. Patients needing emergency care for kidney ailments are also not likely to

travel far from their homes for such treatment, so the relevant geographic market for

hospital nephrology services and for nephrology consults and referrals is therefore Tom

Green County and contiguous counties.

6.5 Dr. Brewer is thought be an employee and/or owner of a group of hospitalists affiliated

with, and possibly created by, SACMC. Dr. Brewer is the chief of staff of the hospital

and head of the hospitalist group that practices at San Angelo Community Medical

Center. Dr. Montoya has been denied the referral of patients that come into the

emergency room with kidney problems/illness/disease. These patients are being referred

to the hospital affiliated group. Even Dr. Montoya's current patients are being referred to

the hospitalist/hospital affiliated group. The group affiliated with the hospital is costing

the patient money because the patients have to pay for a hospitalist and are then being

referred to a different nephrologist whose group has a contract/agreement with the

hospital and its affiliated entities. The patients are denied the opportunity to save money.

The hospitalist group charges the patients at a higher comprehensive rate/code.

6.6 At all relevant times Dr. Kirk Brewer, himself, as a principal officer of Community

Medical Associates, San Angelo Community Medical Center and Chief of Staff of San

Angelo Community Medical Center (SACMC) and head of the hospitalist system at

(SACMC) with agents/employees of (SACMC) working under his control, direction, or

in furtherance of unlawful and improper actions was and is employed by and acting in

furtherance of the business of (SACMC) and its affiliated medical practice(s). Dr.

Brewer is individually liable for his own illegal, improper acts and omissions. At various

times Dr. Brewer acted for himself, (SACMC) and/or his group of hospitalists. Dr.

Brewer is also liable for the improper acts and omissions as Chief of Staff of (SACMC).

Dr. Brewer, as well as the other agents/employees of (SACMC) and/or its affiliated

practices are liable under the doctrine ofrespondeat superior and vicarious liability.

6.7 The Defendants (SACMC) and Dr. Kirk Brewer, along with WTMA and Dr. Brewers

group of hospitalists acting by and through its agents/employees/principals/officers acted

PLAINTIFF'S SIXTH AMENDED ORIGIN~jTITION Page4 of25

together to carry out the improper and illegal actions and therefore are jointly and

severally liable for civil conspiracy in carrying out their wrongful activities.

6.8 All conditions precedent to Plaintiffs recovery have been performed or have occurred.

Dr. Montoya is a hard working member of the San Angelo Medical Community. Dr.

Montoya came out of San Antonio, Texas and received a full scholarship for his

undergraduate degree at Rice University. After graduating Rice University Dr. Montoya

then went on to medical school at The University of Texas Southwestern Medical School

in Dallas, Texas. After Dr. Montoya finished his residency and training he went to in

west Texas. Dr. Montoya built a stellar reputation for quality patient care, excellence in

the practice of nephrology and dialysis care of the long term illness of kidney

failure/disease. Dr. Montoya's reputation in the medical community in the San Angelo

areaffom Green County allowed him to regularly obtain referrals for nephrology work

from the emergency room at SACMC, as well as consults for nephrology work from

other doctors at SACMC. These referrals and consults were and are necessary for Dr.

Montoya's continued presence as a competitor in the market for nephrology services in

the San Angelo/fom Green County area. Dr. Montoya relied on these consults and

referrals to build his nephrology practice, for once he had consulted on a patient, that

patient was likely to remain a patient of Dr. Montoya's if that patient needed continuing

kidney care such as dialysis.

6.9 Dr. Montoya is the only nephrologist in San Angelo that speaks Spanish. Dr. Montoya

cares about his patients, his fellow medical professionals, and his community. Dr.

Montoya's practice has expanded over the years including with the referral from local

physicians, the emergency room/department and hospital consultation because of his

well-deserved reputation for quality patient care. These referrals are necessary for Dr.

Brewer to compete.

6.10 Dr. Montoya's skill as a nephrologist was, until the hospital created its affiliated medical

practice or entered into an exclusive contract with the group of hospitalists affiliated

and/or managed by Dr. Brewer, a marketing asset for SACMC. Dr. Montoya received his

rotating share of referrals of patients with kidney disease/illness/failure until SACMC

PLAINTIFF'S SIXTH AMENDED ORIGIN~4TITION Page S of25

created its affiliated practice groups and/or entered into an exclusive contract with the

group ofhospitalists affiliated and/or managed by Dr. Brewer.

6.11 The recommendation and referral through the emergency room/department directly

affects the patient's choice of doctor. The doctor in turn decides the patient's course of

treatment and what and how the patient is coded for billing on treatment.

6.12 The choice of doctor directly affects the patient's costs and expenses both in the short

term and for long term care of kidney disease/illness/failure. Individuals with kidney

disease can require care for the rest of their life which may include dialysis.

6.13 Improperly manipulating the doctor a patient receives care from creates a cost to the

patient and improperly distorts free and informed patient choice and options for medical

care.

6.14 The correct and appropriate way for any health care provider of emergency hospital

services and nephrology service is to provide the highest quality of care to the patient.

Patients deserve to have lower costs. The illegal and unjust way of treating patients is to

manipulate their free choice in the market place. In this case the Defendants only

referred a patient to a hospitalist; in a group affiliated with the hospital, then only refer a

patient to a nephrologist in a hospital affiliated group. Defendants also maligned and

then smeared a highly qualified nephrologist in practice at the same hospital.

6.15 Starting in 2008 Defendants decided to then have a covert whisper campaign and not

refer any patients to Dr. Montoya.

6.16 The Defendants illegal and anti-competitive acts unfairly and wrongfully have cast Dr.

Montoya's stellar reputation under a dark cloud. Also the patients of Dr. Montoya have

been refused the services of Dr. Montoya when the patient is in the hospital. The patients

are suffering in paying higher costs and expenses for their care.

6.17 Dr. Montoya was brought up on charges of incompetent patient care for misspelled words

on a chart. These actions were just taken to discredit Dr. Montoya and his ability to

practice medicine in San Angelo and at San Angelo Community Medical Center. None

PLAINTIFF'S SIXTH AMENDED ORIGIN~STITION Page 6 of25

of the actions of the hospital were based on patient care but for retaliation after Dr.

Montoya complained about the Defendants anticompetitive actions. The actions also

were done to hurt the reputation of Dr. Montoya in advanced abilities in nephrology. Dr.

Montoya corrected the "misspelled words" and harsh undeserved review of his charts

continued. Despite the efforts of Defendants the railroading of Dr. Montoya was not

successful.

6.18 The actions of the Defendants have a tendency to reduce or eliminate competition that is

not offset by any countervailing procompetitive justification.

6.19 Dr. Montoya was admitted to practice nephrology at San Angelo Community Medical

Center in 1981. Dr. Montoya has full staff privileges for the practice of nephrology at

San Angelo Community Medical Center. The facts of the case are that Kirk Brewer,

M.D. was during his actions an officer and/or Chief of Staff of the medical staff of San

Angelo Community Medical Center. Kirk Brewer, M.D. was hired by San Angelo

Community Medical Center to run the hospitalist service. As

This text is long and has been trimmed here. Open the source document for the complete record.