Petition for Writ of Certiorari — McGlothlin v. Cullington

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In The

Supreme Court of the United States

WYSONGA McGLOTHLIN,

Petitioner,

Vv.

JAMES R. CULLINGTON,

Respondent.

On Petition For Writ Of Certiorari To The

Texas Court Of Appeals, Third District

PETITION FOR WRIT OF CERTIORARI

J. Ray Ritey

Attorney of Record

for Petitioner

6213 Edloe Street

Houston, Texas 77005

(713) 667-1170

(713) 667-5945 (fax)

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

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perlite.

QUESTIONS PRESENTED

This petition presents the following questions:

II.

Petitioner filed suit against a physician to recover

damages arising from the puncturing of her breast

implant during recovery from surgery for removal of

a malignant tumor. Causes of action pled were tres-

pass, assault and battery, and negligence. Petitioner

did not have financial resources to file a $7,500 cost

bond required by a Texas statute as a condition for

maintaining suit against a physician. Petitioner’s suit

therefore was dismissed. Does the dismissal violate

the Fourteenth Amendment of the United States Con-

stitution which guarantees access to State courts,

equal protection of the laws, and due process?

When a fundamental federal constitutional right is at

stake, may a State court presume a challenged statute

is constitutonal and thereby disregard the Bullock v.

Cater! standard of review requiring that the statute

be closely scrutinized and found reasonably neces-

sary to the accomplishment of legitimate State objec-

tives in order to be constitutional?

' 405 U.S. 134, 144, 92 S. Ct. 849, 856, 31 L.Ed.2d 92 (1972).

LIST OF PARTIES

The parties to the proceedings below are the follow-

ing:

1. Petitioner: Wysonga McGlothlin

2. Respondent: James R. Cullington

ill

TABLE OF CONTENTS

Page

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Constitutional Provisions Involved................. 2

ree re re ere 2

Reasons for Granting the Writ..................... 6

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Appendix:

Judgment and Opinion of the Texas Court of

Appeals, Third District, rendered April 1, 1999... A-1

Letter from Supreme Court of Texas, dated July

15, 1999, denying Petitioner’s Petition for

GS Dh 60d oun p be 44 ad CRS F oA SS ede aes On A-27

Order of Dismissal, dated April 13, 1998, entered

by District Court of Travis County, Texas, 345th

acid n esa eens eee acne ann ex A-14

Order Granting Defendant’s Motion to Increase

Security, dated March 12, 1998, entered by Dis-

trict Court of Travis County, Texas, 345th Judi-

GS 0 anos aut aa OUe Sedna v esse 46's N 4 ues A-15

Section 13.01 of the Texas Medical Liability and

Insurance Improvement Act [Tex. Rev. Civ. Stat.

Ann. art. 45901 (West Supp. 1999)].............. A-28

Plaintiff’s Response to Defendant’s Motion to

Cg OT ee Te eee eee eee A-21

TABLE OF CONTENTS —- Continued

Page

Plaintiff's March 10, 1998 letter to the Honorable

Judge Peter M. Lowry, 261st Judicial District

Ere er eree ee ere ee er re rE rrr ree A-35

Affidavit of Wysonga McGlothlin (Petitioner). ..... A-41

Plaintiff's First Amended Original Petition ........ A-17

Exerpt of Appellant’s Brief filed with Texas Court

OF OCR, THT CUNINOS ioc nis cance cccisccexes A-45

Exerpt of Petition for Review filed with the

Be eh eeerer rr errr rT Terre A-49

TABLE OF AUTHORITIES

Page

CASES

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 116

S. Ct. 1605, 1356 L.bGiae ZOE COP i bike ki Sccrscvees 7

Bieregu v. Reno, 59 F.3d 1445 (3rdCir.1995)............ 7

Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S.

731, 103 S. Ct. 2161, 76 L.Ed.2d 277 (1983)....... Pe

Boddie v. Connecticut, 401 U.S. 371, 91S. Ct. 780, 28

ow” Bie Bt, 7g | ee ee na ey y 7, 8, 10, 11

Bullock v. Cater, 405 U.S. 134, 92. S. Ct. 849, 31

RT "a hl iy | rere pepe re eet, i, 9, 10

Burns v. Ohio, 360 U S. “258,29 S$. Cet 1164, 3

me Be Ry. ry enn ney rene we: 11

Chambers v. Baltimore & Ohio Railroad Co., 207 U.S.

12, 26S. Ce. SE SR Re. BS Cee ws cons ceneec cs 7

California Motor Transport Co. v. Trucking, Unlim-

ited, 404 U.S. 508, 92 S. Ct. 609, 30 L.Ed.2d 642

VELL 3 PERRET OPE, Ee Oe Eee 7

Harper v. Virginia Bd. of Elections, 383 U.S. 663, 86

S. Ce; 1078, eee We Tis kaw canckans vanes 11

Lindsey v. Normet, 405 U.S. 56, 92 S. Ct. 862, 31

Le Dee SG CARTE es in kas acces cau eaee eee weksnanss 9

McDonald v. Smith, 472 U.S. 479, 105 S. Ct. 2787, 86

Rem F.. . rer errr ree 7

McGlothlin v. Cullington, 989 S.W.2d 449 (Tex.App.

- Mmaatin, P9998, pet. GO) in sce ccnwsascceansss ee

TABLE OF AUTHORITIES — Continued

Page

San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S.

1, 9% S. Ce. BE7E, SO Lie WO CPOs cs dase scent 11

Smith v. Bennett, 365 U.S. 708, 81 S. Ct. 895, 6

mh” BB): eer yy ey AS 11

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment |....... 2, 6, 7

United States Constitution, Amendment XIV,

Section §occcccoxcvaeesaactdsee eee y ey

STATUTES

26 U.S.C. $ 1088 i ice ceccca eee 1

Section 13.01 of the Texas Medical Liability and

Insurance Improvement Act, Tex. Rev. Civ. Stat.

Ann. art. 45901 (West Supp. 1999)........... y a te

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays for a writ of certiorari to

review the judgment and opinion of the Texas Court of

Appeals, Third District, in its cause No. 03-98-00205-CV,

rendered April 1, 1999. A petition for discretionary

review was timely filed with the Supreme Court of Texas

on May 17, 1999, and was denied on July 15, 1999.

OPINIONS BELOW

The judgment of the Texas Court of Appeals, and its

opinion reported at 989 S.W.2d 449 (Tex.App. — Austin,

1999, pet. den.), are reproduced in the appendix to this

petition, p. A-1. The order of the lower district court

dismissing Petitioner’s case is reproduced in the appen-

dix, p. A-14. An earlier order of the district court granting

Respondent’s motion to increase security is reproduced

in the appendix, p. A-15.

STATEMENT OF JURISDICTION

The judgment and opinion which this Court is asked

to review were rendered on April 1, 1999 by the Court of

Appeals for the Third District of Texas. Petitioner timely

filed a petition for discretionary review with the Supreme

Court of Texas on May 17, 1999. The petition for review

was denied on July 15, 1999. This Court's jurisdiction is

invoked pursuant to 28 U.S.C. § 1257.

—— *

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment I

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exer-

cise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peace-

ably to assemble, and to petition the Govern-

ment for a redress of grievances.

United States Constitution, Amendment XIV, Section 1

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or

enforce any law which shall abridge the privi-

leges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.

STATEMENT OF THE CASE

Nature of Case

This case is a personal injury suit for damages

brought by Petitioner against an attending physician

under theories of trespass, assault and battery, and negli-

gence. The case was dismissed without trial because Peti-

tioner did not file a $7,500 cost bond. The order of

dismissal (appendix, p. A-14) was entered by the District

Court of Travis County, Texas, 345th Judicial District,

pursuant to Section 13.01 of the Texas Medical Liability

meer

and Insurance Improvement Act,2? which Texas courts

have recognized impose cost bond and expert report

requirements to achieve the purpose of reducing frivo-

lous medical malpractice claims.?

Facts

Following a determination that Petitioner had a

malignant tumor in her breast, a surgeon removed the

tumor and surrounding breast tissue. On the same day a

second surgeon, Dr. Davis, performed reconstructive sur-

gery, inserting a breast implant in Petitioner’s right

breast. The surgery lasted eight hours.

After surgery there was quite a bit of swelling

around Petitioner’s right breast and under her arm. It

was necessary that the liquid causing the swelling be

aspirated regularly. During the recovery period Dr. Davis

had to go out of town for about a week, and he referred

Petitioner to the Respondent, Dr. James R. Cullington, for

temporary medical treatment. When Petitioner went to

him, Respondent stuck the needle of a Syringe into Peti-

tioner’s breast, pulled it out, looked at the liquid in the

syringe, and said he didn’t like the color of the liquid.

Respondent appeared shocked and told Petitioner that he

thought he had punctured her breast implant and that the

fluid he saw was from the implant. Respondent told

* See Tex. Rev. Civ. Stat. Ann. art. 4590i (West Supp. 1999)

(appendix, p. A-28).

> See McGlothlin v. Cullington, 989 S.W.2d 449, 451 (Tex.App

~ Austin, 1999, pet. den).

Petitioner to make an appointment to see her reconstruc-

tive surgeon, Dr. Davis, as soon as he returned from out

of town. Petitioner’s breast flattened before Dr. Davis

returned.

Petitioner went to Dr. Davis upon his return. Dr.

Davis looked at her breast, saw it was flat, and said there

was no doubt about it. The injury extended the length of

Petitioner’s recovery from surgery.

Petitioner brought suit against Appellee who filed a

motion asking the district court to order Petitioner to file

a $7,500 cost bond and to dismiss the case if a $7,500 cash

bond was not filed. The motion was grounded on Section

13.01 of the Medical Liability and Insurance Improvement

Act, Tex. Rev. Civ. Stat. Ann. art. 45901 (Vernon Supp.

1998) which requires that a party suing a physican ini-

tially file a cost bond of $5,000 or an expert’s liability

report.* Petitioner did not have the financial resources

with which to either post a $5,000 bond or to pay into the

registry of the Court $5,000 cash as a deposit; nor did

Petitioner have the financial ability to obtain a costly

expert physician’s report (appendix, p. A-43).

+ Section 13.01(a) initially requires that, for each physician

or health care provider against whom a claim is made, either (i)

a separate cost bond in the amount of $5,000 be filed, (ii) $5,000

in cash be deposited in an escrow account, or (iii) an expert

report be filed, not later than the 90th day after the date the

claim is filed. Upon motion of a defendant if the security is not

filed within 90 days after the claim is made, the trial correct is

required to increase the cost bond to $7,500 and to order it filed

within 21 days or else dismiss the case as to that defendant.

The district court then followed the nondiscretionary

directive of Section 13.01 and entered an order dated

March 12, 1998 (appendix, p. A-15), compelling Petitioner

to file a $7,500 cost bond within 21 days or face dismissal

of the suit. Petitioner did not have the financial ability to

file and did not file a $7,500 cost bond. On April 13, 1998,

the district court then dismissed the case (appendix, p.

A-14).

When and How Federal Questions Raised

Petitioner timely and properly raised the federal

question of her fundamental United States constitutional

right of access to the courts under the Equal Protection

and Due Process Clauses of the Fourteenth Amendment

to the United States Constitution. The federal question

was raised with the district court in Plaintiff’s Response

to Defendant’s Motion to Increase Security (appendix, p.

A-21) and was restated in a letter to the district court

judge, dated March 10, 1998 (appendix, p. A-35).

On appeal Petitioner raised the federal question with

the Texas Court of Appeals in her Appellant’s Brief,

beginning at p. iii (appendix, p. A-45). The Texas Court of

Appeals engaged a presumption that the challenged stat-

ute was constitutional and upheld dismissal of Peti-

tioner’s case shown (appendix, p. A-5).

Petitioner raised the federal question with the

Supreme Court of Texas in her Petition for Review, begin-

ning at p. ii (appendix, p. A-50).

—----—-- —--—-— @ —_ —-——- ——-

REASONS FOR GRANTING THE WRIT

The Texas Court of Appeals for the Third District of

Texas has decided an important federal question — the

fundamental right of access to State courts arising under

the Fourteenth Amendment - in a way that conflicts with

precedent of this Court. In addition, in considering Peti-

tioner’s appeal the Texas Court of Appeals failed to apply

the standard of review established by this Court’s prece-

dence for considering the constitutionality of a statute

which abridges a fundamental constitutional right under

the United States Constitution. Whether State legislatures

have the ability to foreclose access to State courts through

the establishment of financial barriers in the name of

reducing frivilous lawsuits and whether State courts may

simply presume the relevant statutes are constitutional

under federal standards without the stringent analysis

that this Court deems necessary are matters that merit

this Court's careful consideration.

United States citizens have a fundamental right to

pursue claims in State courts that arise under the Petition

Clause of the First Amendment and the Equal Protection

and Due Process Clauses of the Fourteenth Amendment

to the United States Constitution. The Petition Clause

encompasses not only the right of access to the legisla-

tive branch, but also the right of access to the

courts.” The same ideals of liberty and democracy that

resulted in the freedoms to speak, publish, and assemble

also inspired the Petition Clause and are inseparable First

Amendment rights.¢

While the text of the First Amendment refers to Con-

gress, the First Amendment also applies to the States

through the Due Process Clause of the Fourteenth

Amendment.” Thus, the right of access to the courts

derives both from the First Amendment’s Petition Clause

and from the Fourteenth Amendment itself.*

The right to due process reflects a fundamental value

in our American constitutional system.% Access to the

courts is the foundation of the rule of law. This Court

articulated the importance of the right of access to the

courts in Chambers v. Baltimore & Ohio Railroad Co.:

The right to sue and defend in the courts is the

alternative of force. In an organized society it is

the right conservative of all other rights, and

lies at the foundation of orderly government. It

* California Motor Transport Co. v Trucking, Unlimited, 404

U.S. 508, 510, 92 S. Ct. 609, 612, 30 L.Ed.2d 642 (1972); Bill

Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 741, 103 S. Ct

2161, 2169, 76 L.Ed.2d 277 (1983).

L.Ed.2d 384 (1985).

* 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489 n. 1.

16S Ct. 1495, 1501 n. 1, 134 L.Ed.2d 711 (1996).

* See Bieregu v. Reno, 59 F.3d 1445, 1453-54 (3rd Cir 1995)

* Boddie v. Connecticut, 401 U.S. 371, 374, 91S. Ct. 780, 784,

28 L.Ed.2d 113 (1971)

is one of the highest and most essential privi-

leges of citizenship. .. . 1°

Access to the courts undergirds and strengthens powerful

societal interests. It provides compensation for violated

rights and interests, it produces psychological benefits of

vindication, and it permits a public airing of disputed

facts.!}

The Texas Legislature adopted Section 13.01 of the

Texas Medical Liability and Insurance Improvement Act

as a means of reducing perceived frivolous medical mal-

practice claims.'* However, this Court has consistently

rejected the notion that the goal of reducing frivolous

litigation justifies making access to the courts unafford-

able. Boddie v. Connecticut confirmed that the use of cost

requirements as a means of preventing frivolous litiga-

tion may not override the interest of claimants in obtain-

ing access to the courts.!* The State of Connecticut argued

in Boddie that the State’s fee and cost requirement for

those seeking divorces was justified as a means of pre-

venting frivolous litigation.'* This argument was rejected

as being insufficient to override the interest of the appel-

lants in having access to the courts, this Court pointing

out there is no necessary connection between a litigant’s

assets and the seriousness of his motives in bringing suit.

10 207 U.S. 142, 148, 28 S. Ct. 34, 35, 52 L.Ed. 143 (1907).

11 See Bill Johnson's Restaurant v. NLRB, 461 U.S. 731, 743,

103 S. Ct. 2161, 2170, 76 L.Ed.2d 277 (1983).

12 See McGlothlin v. Cullington, 989 S.W.2d 449, 451 (Tex.App.

— Austin, 1999, pet. den.).

13 Boddie, 401 U.S. at 382, 91S. Ct. at 788.

14 Id., 401 U.S. at 382, 91S. Ct. at 788.

A State may not use its power to make access to the

courts unaffordable for a class of citizens as a means of

eliminating or reducing allegedly frivolous claims. In

Lindsey v. Normet}> this Court found that a State statute

denied equal protection where it required that tenants

post a bond on appeal twice the amount of rent expected

to accrue pending appellate review. It was argued in

Lindsey that an Oregon statutory bonding requirement

was justified to prevent frivolous appeals. This Court

observed:

The claim that the double-bond requirement

operates to screen out frivolous appeals is

unpersuasive, for it not only bars nonfrivolous

appeals by those who are unable to post the

bond but also allows meritless appeals by others

who can afford the bond.!¢

Mr. Justice Douglas in a partial dissent characterized the

double-bond requirement as an “invidious discrimina-

tion” at which the Equal Protection Clause was aimed for

a legislature to select one class of appellants and placing

a more onerous condition on their right to appeal than is

placed on other like appellants. 17

The Texas Court of Appeals did not apply the higher

standard of review for determining whether a State stat-

ute abridges fundamental constitutional rights under the

United States Constitution that was applied by this Court

in Bullock v. Cater: Any State statute which attempts to

abridge a fundamental constitutional right must be

1S 405 U.S. 56, 92 S. Ct. 862, 31 L.Ed.2d 36 (1972).

16 Id., 405 U.S. at 78, 92 S. Ct. at 876.

\7 Id., 405 U.S. at 81, 92 S. Ct. at 878.

closely scrutinized and found reasonably necessary to the

accomplishment of legitimate State objectives in order to

be constitutional.}8

There must be a showing of necessity.19 It is not

sufficient simply to show that there may be some rational

basis for such a statute.?° Instead of applying this stan-

dard of review, the Texas Court of Appeals engaged a

presumption that the Texas statute was constitutional.

This Court has zealously guarded against State

attempts that abridge the Equal Protection and Due Pro-

cess Clauses by imposing onerous financial barriers or

obstacles which inhibit or prevent the exercise of funda-

mental constitutional rights. For example, the United

States Supreme Court held in Bullock v. Cater that a Texas

state law which created barriers to candidate access to the

primary ballot by preventing potential candidates for

public office from seeking nomination of their party as a

result of their inability to pay a portion of the cost of

conducting primaries unlawfully discriminated, violated

the Equal Protection Clause, and was unconstitutional.?}

The Texas system fell with unequal weight on candidates

according to their economic status and utilized the crite-

rion of ability to pay as a condition to being on the

ballot.22 In Boddie v. Connecticut this Court held that the

Due Process Clause was violated where the appellants

18 405 U.S. 134, 144, 92 S. Ct. 849, 856, 31 L.Ed.2d 92 (1972).

19 Jd., 405 U.S. at 147, 92 S. Ct. at 858.

20 Id., 405 U.S. at 142-44, 147, 92 S. Ct. at 855-56, 858.

21 Bullock, 405 U.S. at 149, 92 S. Ct. at 859.

22 Id.

were denied access to the courts in seeking divorces

when they were financially unable to pay court costs and

fees.*> Boddie recognized that the right to a meaningful

opportunity to be heard within the limits of practicality

must be protected against denial by particular laws that

would operate to jeopardize the right for particular indi-

viduals.** This Court concluded that a cost requirement

may offend due process when it operates to foreclose a

particular party’s opportunity to be heard in court.25

Where fundamental rights and liberties are asserted

under the Equal Protection Clause of the United States

Constitution, classifications which might invade or

restrain them must be strictly scrutinized and carefully

confined.26

23 401 U.S. at 374-5, 91 S. Ct. at 784.

24 Id., 401 U.S. at 380-81, 91 S. Ct. at 787.

25 Id., 401 U.S. at 380, 91 S. Ct. at 787. Also see Burns v. Ohio,

360 U.S. 252, 79 S. Ct. 1164, 3 L.Ed.2d 1209 (1959), which

invalidated a procedure where cases within the jurisdiction of a

state supreme court would not be considered if a person could

not afford to pay the filing fee, and Smith v. Bennett, 365 U.S. 708,

81S. Ct. 895, 6 L.Ed.2d 39 (1961), where requiring indigents to

pay filing fees before a writ of habeas corpus could be

considered in state court was invalidated under the Equal

Protection Clause.

26 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 93S.

Ct. 1278, 36 L.Ed.2d 16 (1973); Harper v. Virginia Bd. of Elections,

383 U.S. 663, 670, 86 S. Ct. 1079, 1083, 16 L.Ed.2d 169 (1966).

CONCLUSION

State statutes that create financial barriers or obsta-

cles to preemptively dismiss lawsuits in the name of

reducing frivilous claims have broad chilling implications

to fundamental rights arising under the United States

Constitution. Such statutes should be given the utmost

scrutiny and invalidated when there is no reasonable

necessity for their existence.

WHEREFORE, it respectfully is prayed that a writ of

certiorari be granted to review the judgment and opinion

of the Texas Court of Appeals for the Third District of

Texas.

Respectfully submitted,

J. Ray Ritey

Attorney of Record

for Petitioner

tay

A-1

TEXAS COURT OF APPEALS,

THIRD DISTRICT, AT AUSTIN

JUDGMENT RENDERED APRIL 1, 1999

NO. 03-98-00205-CV

Wysonga McGlothlin, Appellant

James R. Cullington, Appellee

APPEAL FROM 345TH DISTRICT COURT OF

TRAVIS COUNTY BEFORE JUSTICES

JONES, KIDD AND POWERS

AFFIRMED - OPINION BY JUSTICE KIDD

THIS CAUSE came on to be heard on the record of the

court below, and the same being considered, because it is

the opinion of this Court that there was no error in the

trial court’s order: IT IS THEREFORE considered,

adjudged and ordered that the order of the trial court is

in all things affirmed. It is FURTHER ordered that the

appellant, Wysonga McGlothlin, pay all costs relating to

this appeal, both in this Court and the court below; and

that this decision be certified below for observance.

A-2

TEXAS COURT OF APPEALS,

THIRD DISTRICT, AT AUSTIN

NO. 03-98-00205-CV

Wysonga McGlothlin, Appellant

James R. Cullington, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY,

345TH JUDICIAL DISTRICT NO. 97-01888,

HONORABLE PETER M. LOWRY, JUDGE PRESIDING

Wysonga McGlothlin, appellant, appeals the trial

court’s dismissal for want of prosecution of her medical

negligence claim against Dr. James Cullington, appellee.

We will affirm.

BACKGROUND

The resolution of this case depends largely upon the

statutory requirements of the Texas Medical Liability and

Insurance Improvement Act (the “Act”);! accordingly, a

brief summary of the facts should prove sufficient. As a

result of a malignant tumor, Ms. McGlothlin, in two sur-

gical procedures performed by physicians not a party to

this suit, had breast tissue removed from and a breast

implant inserted into her right breast. After the surgery,

| See Tex. Rev. Civ. Stat. Ann. art. 45901 (West Supp. 1999).

A-3

Ms. McGlothlin experienced swelling around her right

breast and under her arm, and it was necessary that the

liquid causing the swelling be aspirated regularly. During

this recovery period, Ms. McGlothlin’s regular surgeon

temporarily left town and referred Ms. McGlothlin to a

colleague, Dr. Cullington. During the visit, Dr. Cul-

lington, while attempting to aspirate Ms. McGlothlin’s

swollen breast, allegedly punctured her breast implant,

causing the breast to flatten, which necessitated further

reconstructive surgery. Ms. McGlothlin filed suit against

Dr. Cullington on February 18, 1997.

The Act requires Ms. McGlothlin, as plaintiff in a

medical malpractice lawsuit, to comply with a number of

prerequisites in order to preserve her claim. The sub-

stance of this dispute concerns the specific requirements

of section 13.01,2 the relevant portions of which provide:

(a) In a health care liability claim, a claimant

shall, not later than the 90th day after the date

the claim is filed:

(1) file a separate cost bond in the amount of

$5,000 for each physician or health care provider

named by the claimant in the action;

(2) place cash in an escrow account in the

amount of $5,000 for each physician or health

care provider named in the action; or

(3) file an expert report for each physician or

health care provider with respect to whom a

cost bond has not been filed and cash in lieu of

* See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 1301 (West Supp.

1999).

A-4

the bond has not been deposited under Subdivi-

sion (1) or (2) of this subsection.

Tex. Rev. Civ. Stat. Ann. art 4590i, § 13.01(a) (West Supp.

1999) (emphasis added). Should a plaintiff fail to comply

with one of the listed requirements in section 13.01(a), the

court shall enter an order that:

(1) requires the filing of a $7,500 cost bond with

respect to the physician or health care provider

not later than the 21st day after the date of the

order; and

(2) provides that if the claimant fails to comply

with the order, the action shall be dismissed for

want of prosecution... .

Id. (b)(1), (2) (emphasis added).

On April 1, 1997, forty-two days after Ms. McGlothlin

filed her lawsuit, the Texas Commissioner of Insurance

found Dr. Cullington’s insurance carrier, who was

responsible for his defense, to be impaired, and the suit

was automatically stayed for six months.? Ninety days

after the automatic six-month stay lapsed, on January 30,

1998, Dr. Cullington filed a motion to increase security

pursuant to the Act asking the trial court to compel Ms.

McGlothlin to file a $7,500 cost bond, or to dismiss the

case in the event the bond was not filed. Ms. McGlothlin,

in a response to Dr. Cullington’s motion filed on February

26, 1998, claimed by affidavit that she lacked the financial

ability to either pay the cost bond or, alternatively, to

3 See Tex. Ins. Code Ann. art. 21.28-C, § 17 (West Supp.

1999).

Sherr JHETNre err er ae cen rere

A-5

retain an expert to provide an expert report on causa-

tion.* On March 12, 1998, the court rendered an order

compelling Ms. McGlothlin to file a $7,500 cost bond

within twenty-one days. When no cost bond was filed,

the court rendered an order on April 13, 1998 dismissing

the cause for want of prosecution. Because Ms.

McGlothlin failed to comply with the requirements of

section 13.01(a) and (b), the court had no discretion but to

dismiss her claim pursuant to the statute. Ms. McGlothlin

appeals, arguing that the requirements of section 13.01 of

the Act (1) violate the Due Process clause of the United

States Constitution, (2) violate the Open Courts Guaran-

tee of the Texas Constitution, and (3) act as a “special

law” in violation of Article II, Section 56, of the Texas

Constitution. We do not address whether the trial court’s

dismissal was error, but whether the statute, as applied to

Ms. McGlothlin, is unconstitutional.

DISCUSSION

We begin by noting that a statute is presumed consti-

tutional. See Enron Corp. v. Spring Indep. Sch. Dist., 922

4 Ms. McGlothlin states in her affidavit:

It is my understanding such an expert report would

have to be a physician because Dr. Cullington, the

defendant in this case, is a physician. It is my further

understanding, based upon information from my attorney,

that an expert physician would likely require that I pay

him a retainer of at least $2,000.00 in order to engage the

expert and obtain a liability report from him. I do not

have the financial ability to pay such a large sum of

money and therefore could not obtain an expert’s

report.

A-6

S.W.2d 931, 934 (Tex. 1996). The wisdom or expediency of

a law is for the legislature to determine, not this Court.

See id. Furthermore, the party chailenging the constitu-

tionality of a statute bears the burden of demonstrating

that the enactment fails to meet constitutional require-

ments. Id.

Due Process

Ms. McGlothlin initially contends that the cost bond

and expert report requirements of article 4590i, section

13.01 violate the due process protections of the United

States and Texas constitutions. See U.S. Const. amend.

XIV; Tex. Const. art. I, § 13, art. III, § 56. Ms. McGlothlin

argues that her due process rights were violated because

she was not able to pursue her injury claim due to the

onerous cost bond and expert report requirements of

section 13.01; therefore, the statute unconstitutionally

restricted the initiation of her medical malpractice claim.°

When determining whether a statute denies a constitu-

tional right to a litigant, we analyze the statute using the

criteria established by Sax v. Votteler, 648 S.W.2d 661 (Tex.

1983). Sax sets out a two-part test: (1) the litigant must

show that a cognizable common-law cause of action is

being restricted; and (2) the litigant must show that the

restriction is unreasonable or arbitrary when balanced

against the purpose and basis of the statute. Sax, 648

S.W.2d at 666.

5 We will discuss Ms. McGlothlin’s due process challenges

under the Texas and United States constitutions together, as our

analysis is dispositive of both points.

Wii cs sian seta

A-7

Negligent infliction of injury by a medical practi-

tioner is an undisputed cause of action under Texas com-

mon law. See Humphreys v. Roberson, 83 S.W.2d 311 (Tex.

1935); Bowles v. Bourdon, 213 S.W.2d 713 (Tex. Civ. App. -

Galveston 1948), aff'd, 148 S.W.2d 779 (Tex. 1949). Thus,

the constitutionality of the cost bond and expert report

provisions turns on whether these requirements are

unreasonable and arbitrary when balanced against the

purposes of the Act.

Passed in 1977, the original Act sought to address

what the legislature described as “a medical malpractice

insurance crisis in the State of Texas.” See Medical Lia-

bility and Insurance Improvement Act, 65th Leg., R.S., ch.

817, § 1.02(a)(5), 1977 Tex. Gen. Laws 2040 (Tex. Rev. Civ.

Stat. Ann. art 4590i, since amended). The legislature

added section 13.01 to the Act in 1993. See Act of May 25,

1993, 73d Leg., R.S., ch. 625, § 3, 1993 Tex. Gen. Laws

2347-49 (Tex. Rev. Civ. Stat. Ann. art 4590i, § 13.01, since

amended).® The cost bond and expert report provisions of

section 13.01 were enacted “to address the perceived

problem that litigants were filing unmeritorious claims

against medical practitioners which were not adequately

section 13.01 required the affidavit of the plaintiff or plaintiff's

counsel attesting to an obtained written opinion of an expert to

be filed within ninety days of the commencement of the action,

or, in the alternative, a $2,000 cost bond. Tex. Rev. Civ. Stat. Ann.

art. 4590i, § 13.01(a), (b) (West Supp. 1999). Should the plaintiff

fail to comply with either of these alternatives, the cost bond,

upon motion, would be increased to $4,000; should another

thirty days pass without the filing of an expert report or the

$4,000 cost bond, the action must be dismissed by the court

without prejudice. Id. § 13.01(c).

A-8

investigated in a timely manner. This . . . led doctors to

settle such suits, regardless of the merits, and also to

expend great amounts of money on defending against

ultimately ‘frivolous claims.’ ” Horsley-Layman v. Angeles,

968 S.W.2d 533, 537 (Tex. App. — Texarkana 1998, no pet)

(citing House Comm. on Civil Practices, Bill Analysis,

Tex. H.B. 971, 74th Leg., R.S. (1995)). Thus, the legislature

sought to address the important purposes of (1) keeping

down medical insurance costs, and thus health care costs,

by reducing frivolous medical malpractice claims, and (2)

allowing a defendant physician to recoup some portion of

court costs from a successful defense. The question for

this Court is whether section 13.01 constitutes an unrea-

sonable and arbitrary means to achieve these purposes.

Dr. Cullington relies upon two cases for the proposi-

tion that the Sax balancing test favors the constitu-

tionality of the cost bond and expert report requirements

of section 13.01. See Horsley-Layman v. Angeles, 968 S.W.2d

533 (Tex. App. -— Texarkana 1998, no writ); Odak v.

Arlington Memorial Hosp., 934 S.W.2d 868 (Tex. App. — Fort

Worth 1996, writ denied). Both Horsley-Layman and Odak

addressed and upheld the constitutionality of section

13.01 as it existed under the 1993 statute. See Horsley-

Layman, 968 S.W.2d at 537; Odak, 934 S.W.2d at 872.

The Horsley-Layman court focused on the lack of evi-

dence indicating why the requirements of a cost bond or

expert report would result in an unreasonable financial

burden above the costs of a medical malpractice claim in

general. See Horsley-Layman, 968 S.W.2d at 537. The court

noted that the appellants “never asserted that the appel-

lants failed to file an expert report as to Dr. Angeles

A-9

because they did not have the financial resources to pro-

cure such a report.” Id. The Odak court, in overruling

appellant’s Open Courts challenge, also focused on the

lack of any evidence that the options presented the plain-

tiff in initiating her malpractice claim under section 13.01

were unreasonable or arbitrary. See Odak, 934 S.W.2d at

872. The court stated “[I]f the expense of obtaining an

expert report is too prohibitive for both the claimant and

the attorney, they will be unable to pursue a claim requir-

ing expert testimony regardless of whether they file the

affidavit.”” Id. However, as mentioned, both Horsley-Lay-

man and Odak upheld the constitutionality of the 1993

statute when section 13.01 required only a $2,000 cost

bond or affidavit by the attorney.’. in doing so, Odak,

specifically states “were the bond set at an arbitrary,

unreasonably high amount, our analysis might be differ-

ent.” Odak, 934 S.W.2d at 872. Because the requirements

of section 13.01 have been heightened by the legislature,

we will examine the Open Courts challenge to section

13.01 in its present form.

The Texas Open Courts Guarantee

Article I, section 13 of the Texas constitution pro-

vides:

* Texas law has traditionally required expert testimony to

establish causation in medical malpractice actions. See Hart v.

Van Zandt, 397 S.W.2d 791, 792 (Tex. 1965) (in all medical

malpractice claims, negligence and proximate cause must be

proven by expert testimony).

® See note 6, infra.

A-10

Excessive bail shall not be required, nor exces-

sive fines imposed, nor cruel or unusual punish-

ment inflicted. All courts shall be open, and every

person for an injury done him, in his lands, goods,

person or reputation, shall have remedy by due

course of law.

Tex. Const. art. I. § 13 (emphasis added). This clause,

commonly referred to as the “Open Courts Guarantee,”

acts as an additional due process guarantee granted in

the Texas constitution, prohibiting legislative bodies from

arbitrarily withdrawing all legal remedies from anyone

having a well-defined cause of action under the common

law. See Sax, 648 S.W.2d at 664. Texas courts have zeal-

ously guarded the rights of litigants to pursue their

claims in court. See 12A Tex. Jur. 3d Constitutional Law

§ 171, 172 (1986) (listing cases invalidating statutes that

violate the Open Courts Guarantee). The right to bring a

well-established common law cause of action cannot be

effectively abrogated by the legislature absent a showing

that the legislative basis for the statute outweighs the

denial of the constitutionally guaranteed right to redress.

In applying the test, we consider both the general pur-

pose of the statute and the extent to which the litigant’s

right to redress is affected. Sax, 648 S.W.2d at 666.

In examining section 13.01 according to these stan-

dards, we first note that the statute offers litigants two

means of preserving a malpractice claim: (1) a cost bond

or cash deposit; or (2) an expert report.? The required

* Section 13.01 defines “expert report” as a

written report by an expert that provides a fair

summary of the expert’s opinions as of the date of the

A-11

amount of the cost bond significantly increased in 1995,

more than doubling. Moreover, the 1995 statute now

requires an actual expert report rather than a mere affi-

davit stating that a written expert opinion has been pro-

cured. However, we do not reach an analysis of the

constitutionality of the new section 13.01 because Ms.

McGlothlin has failed to provide sufficient evidence that

these requirements actually acted to keep her from pursu-

ing her claim, as was her burden. See Enron Corp., 922

S.W.2d at 934.

Ms. McGlothlin gives no reason in the record for not

complying with the Act within the initial 90 days after

filing suit.!° We thus have no indication that Ms.

McGlothlin ever attempted to comply with the statute.

She claims by affidavit that, “based upon information

from my attorney,” experts require a $2,000 retainer to

furnish a report. This is, of course, hearsay, and no evi-

dence that a $2,000 threshold actually exists. The statute

clearly implies the expert report is but a minimal require-

ment, and includes numerous allowances for plaintiffs

report regarding applicable standards of care, the

manner in which the care rendered by the physician

or health care provider failed to meet the standards,

and the causal relationship between that failure and

the injury, harm, or damages claimed.

Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(r)(6) (West Supp.

1999).

'0 Ms. McGlothlin’s affidavit claiming financial inability

was filed on February 26, 1998, in response to Dr. Cullington’s

motion to increase security, more than one year after she

originally brought suit. Thus, she was given substantially more

than the statutory 90-day period in which to procure a report or

file a cost bond.

A-12

filing an expert report.!! Finally, the affidavit makes no

mention of any actual attempt to obtain an expert report,

only some perceived financial barrier. Ms. McGlothlin’s

failure to comply could be due as much to oversight or

mistake as to actual financial inability. Accordingly, Ms.

McGlothlin’s affidavit is wholly insufficient to establish

proof that section 13.01 is unconstitutional as applied to

her. We overrule her due process challenges.

Special Law

Ms. McGlothlin additionally claims that section 13.01

violates article III, section 56 of the Texas constitution,

which states “in all other cases where a general law can

be made applicable, no local or special law shall be

11 Section 13.01 contains several subsections defining the

nature and use of an “expert report,” including:

Section 13.01(j): “[NJothing in this section shall be

construed to require the filing of an expert report

regarding any issue other than an issue relating to

liability or causation.”

Section 13.01(k): “[NJotwithstanding any other law,

an expert report filed under this section: (1) is not

admissible in evidence bya defendant; (2) shall not be

used in a deposition, tria., or other proceeding; and

(3) shall not be referred to by a defendant during the

course of the action for any purpose.”

Section 13.01(1): “[A] court shall grant a motion

challenging the adequacy of an expert report only if it

appears to the court, after hearing, that the report does not

represent a good faith effort to comply with the definition

of an expert report in Subsection(r)(6) of this section.”

Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(j), (k), (1) (West Supp.

1999) (emphasis added).

A-13

enacted.” Tex. Const. art. III, § 56. She contends that

section 13.01 creates a separate class of physicians pro-

tected from suit by section 13.01. A statute is not special

or local if it operates on a subject in which people at large

are interested. See Langdeau v. Bouknight, 344 S.W.2d 435,

441 (Tex. 1961). Having already discussed the important

State interests addressed by the legislature in the Act, we

find this point to be without merit.

CONCLUSION

Because the record fails to reflect any evidence of Ms.

McGlothlin’s actual financial inability to comply with the

requirements of section 13.01, she has not carried her

burden of demonstrating that the statute fails to meet

constitutional requirements. Moreover, because section

13.01 addresses the important state interest of containing

medical malpractice insurance costs, it is not a special law

under the Texas constitution. We overrule appellant’s

points of error and affirm the order of the trial court.

/s/

Mac Kidd, Justice

Before Justices Jones, Kidd and Powers*

Affirmed

Filed: April 1, 1999

Publish

* Before John E. Powers, Senior Justice (retired), Third

Court of Appeals, sitting by assignment. See Tex. Gov’t Code

Ann. § 74.003(b) (West 1998).

A-14

NO. 9701888

WYSONGA McGLOTHLIN, § IN THE DISTRICT

oe § COURT OF

Plaintiff, g

- § TRAVIS COUNTY,

§ TEXAS

JAMES R. CULLINGTON, § 345TH JUDICIAL

Defendant. § DISTRICT

ORDER OF DISMISSAL

ON THE 27th day of February, 1998, a hearing was

held on Defendant’s Motion to Increase Security and after

taking the matter under advisement and considering the

authorities cited by Defendant and by Plaintiff, an Order

granting Defendant’s Motion to Increase Security was

duly entered on March 12, 1998. Therein, it was provided

that Plaintiff was required to file a $7,500 cost bond not

later than 21 days after the date of the Order and in the

event she failed to do so, the case would be dismissed,

subject to reinstatement, all in accordance with § 13.01,

Art. 45901.

After the expiration of 21 days, Plaintiff has not filed

the required $7,500 cost bond and, therefore, this case

should be dismissed, subject to reinstatement. It is

accordingly,

ORDERED that this lawsuit is DISMISSED for want

of prosecution, subject to reinstatement in accordance

with Subsection (c) of 13.01, Art. 459031.

SIGNED this 13th day of April, 1998.

/s/ Pete Lowry

JUDGE PRESIDING

A-15

NO. 9701888

WYSONGA McGLOTHLIN, § IN THE DISTRICT

Plaintiff, S COURT OF

: S TRAVIS COUNTY,

: : TEXAS

JAMES R. CULLINGTON, S wpieanes

Defendant. § DISTRICT

ORDER GRANTING DEFENDANT'S MOTION

TO INCREASE SECURITY

TO THE HONORABLE JUDGE OF SAID COURT:

ON THIS DAY CAME on to be considered the Motion

of James R. Cullington, M.D., Defendant herein, and after

receiving evidence and hearing argument of counsel, the

Court finds:

IT IS ACCORDINGLY, ORDERED, that Plaintiff is

required to file a $7,500 cost bond not later than twenty-

That Plaintiff has failed, as to the moving

Defendant, within ninety (90) days after the

date this action was commenced to either

file a report by a qualified expert, or to

deposit cash ($5,000), or post an appropriate

cost bond ($5,000), all as required by § 13.01

of the Medical Liability Insurance Improve-

ment Act of Texas, Art. 4590i;

That Defendant’s Motion should be

GRANTED; and

That in accordance with the further provi-

sions of § 13.01, Art. 4590i, Plaintiff should

be ORDERED to post a $7,500 cost bond or,

failing that, this case should be DISMISSED

for want of prosecution.

A-16

one (21) days of the date of this Order. It is further

ORDERED that in the event Plaintiff fails to file the

$7,500 cost bond, this case shall be DISMISSED for want

of prosecution with respect to the moving Defendant,

subject to reinstatement in accordance with applicable

rules of civil procedure and Subsection (c) of § 13.01, Art.

4590i.

SIGNED this 12th day of March, 1998.

/s/ Pete Lowry

JUDGE PRESIDING

——

A-17

No. 9701888

WYSONGA § IN THE DISTRICT

McGLOTHLIN, § COURT OF

Plaintiff, 8 © TRAVIS COUNTY,

§ TEXAS

Vv. §

AMES x Sim yuprctas

CULLINGTON, -

Defendant. §

PLAINTIFF’S FIRST AMENDED ORIGINAL PETITION

COMES NOW, WYSONGA McGLOTHLIN, plain-

tiff, and complains of JAMES R. CULLINGTON. In sup-

port of her cause of action against the defendant, plaintiff

would show this honorable Court and Jury the following:

Plaintiff, WYSONGA McGLOTHLIN, is an individ-

ual residing in Travis County, Texas.

Defendant, JAMES R. CULLINGTON, is an individ-

ual who upon information and belief resides in Travis

County, Texas, having an address at 1010 West Ninth

Street, Austin, Texas 78703.

II.

In February, 1995, the Plaintiff went to the Defendant

for medical treatment while recovering from reconstruc-

tion surgery after removal of a malignant tumor in her

breast. The reconstruction surgery included placement of

a breast implant in Plaintiff’s breast.

A-18

While under the care and supervision of the Defen-

dant, the Defendant punctured the Plaintiff’s recently

implanted breast implant. The Defendant acted in a care-

less, reckless and negligent manner in providing medical

treatment to the Plaintiff. As a proximate result of such

carelessness, recklessness, and negligence, the Plaintiff

was severely and painfully injured. The injury to the

Plaintiff was incredibly painful and caused the Plaintiff

mental anguish, worry and depression.

In particular, the Defendant negligent acts or omissions

included but are not necessarily limited to the following:

a. failing to determine where to insert a needle into

the Plaintiff’s breast in a manner that would not puncture

Plaintiff’s breast implant;

b. failing to properly observe where he was insert-

ing such needle; and

c. failing to pay attention to where he was inserting

such needle.

Because of the wrongful acts of the Defendant the

Plaintiff has suffered losses which the Jury should con-

sider as follows:

a. Pecuniary loss and damages;

b. Loss of companionship and society;

c. Mental anguish;

d. Medical expenses;

e. Loss of wages, sick leave, and/or vacation time;

and

f. Punitive damages.

tits cai

A-19

Il.

In the alternative, the Defendant’s actions constituted

an assault and battery upon the Plaintiff, proximately

causing the injuries and damages set forth above.

IV.

In the alternative, the Defendant’s actions constituted

a wrongful trespass into the body of the Plaintiff, prox-

imately causing the injuries and damages set forth above.

WHEREFORE, PREMISES CONSIDERED, Plaintiff

prays that the Defendant be cited to appear and answer

herein, and upon final hearing that the Plaintiff have

judgment against the Defendant in a sum which is within

the jurisdictional limits of this Court, and for all of her

damages as set forth above. Plaintiff further prays for

pre-judgment interest as provided by law, or as otherwise

provided by law and for post-judgment interest. Plaintiff

further prays for such other further relief, both special

and general, to which Plaintiff may be justly entitled at

law or in equity.

Respectfully submitted,

J. RAY RILEY & ASSOCIATES

By: /s/ J. Ray Riley

J. Ray Riley, Tex. No. 16927000

Chelita C. Riley, Tex. No. 00796061

West U. Plaza

6213 Edloe Street

Houston, Texas 77005

Telephone: (713) 667-1170

Telecopier: (713) 667-5945

ATTORNEYS FOR PLAINTIFF

A-20

Certificate of Service

The undersigned certifies that he served a copy of the

foregoing document on the defendant in this cause by

service upon his attorneys of record, Fred E. Davis, Davis

& Davis, P.C., 9442 Capital of Texas Highway, Arboretum

Plaza I, Suite 950, Austin, Texas 78759, fax number

512/343-0121, in accordance with the Texas Rules of Civil

Procedure on the 26th day of February, 1998.

/s/ J. Ray Riley

J. Ray Riley

1319A1D7.SAM

A-21

No. 9701888

WYSONGA g IN THE DISTRICT

McGLOTHLIN, § COURT OF TRAVIS

cecal § COUNTY, TEXAS

zt S$ 345th JUDICIAL

; § DISTRICT

JAMES R. §

CULLINGTON, :

Defendant. §

PLAINTIFF’S RESPONSE TO DEFENDANT'S

MOTION TO INCREASE SECURITY

TO THE HONORABLE COURT AFORESAID:

The Plaintiff, WYSONGA McGLOTHLIN, opposes

the Defendant’s Motion to Increase Security on the fol-

lowing grounds:

Plaintiff Claims Constitutional Right of Access to the

Courts Under the Constitutions of Texas and the

United States

1. The Defendant’s Motion to Increase Security is

grounded on the Medical Liability and Insurance

Improvement Act (the “Act”), Tex.Rev.Civ.Stat.Ann., art.

4590i, Section 13.01 (Vernon Supp. 1998). As applied to

the Plaintiff in this case, Section 13.01 of the Act is uncon-

stitutional under article I, Section 13, of the Texas Consti-

tution and under the Fourteenth Amendment of the

United States Constitution.

2. Section 13, article I, of the Texas Constitution

provides:

A-22

“All courts shall be open, and every person

for an injury done him, in his lands, goods,

person or reputation, shall have remedy by due

course of law.”

This provision purely and simply contemplates that the

Texas Legislature shall not place barriers to the halls of

justice before persons who have been injured at the hands

of others.

3. The Fourteenth Amendment to the United States

Constitution guarantees that each citizen -of the United

States shall be guaranteed equal protection under the law

and shall receive due process under the law. Equal pro-

tection contemplates that barriers will not be erected to

preclude citizens from enforcing rights and obtaining

remedies in the halls of justice in order to protect one

particular class of citizens or industry. Due process under

the law contemplates that citizens shall have the full

opportunity to seek redress in the halls of justice for

injuries done them.

Facts Before the Court

4. In the case now before the Court, the plaintiff

received injury at the hands of the defendant who is a

physician. The plaintiff had received a breast implant

following removal of a malignant tumor from her breast.

The surgeon making the implant temporarily placed the

plaintiff under the care of the defendant. To reduce the

painful buildup of bodily fluids within the plaintiff's

breast, the defendant was supposed to insert the needle

of a syringe and remove excess fluids. Instead, the defen-

dant punctured the piaintiff’s breast implant, causing the

A-23

implant and the plaintiff’s breast to go flat. See the plain-

tiff’s affidavit attached hereto and incorporated herein by

reference for all purposes.

5. The plaintiff has brought suit against the defen-

dant to recover her damages under the theories of assault

and battery, trespass and negligence. See Plaintiff’s First

Amended Original Petition attached hereto and incorpo-

rated herein by reference for all purposes.

7. Suit was brought against the defendant on Febru-

ary 18, 1997. On April 1, 1997 the Texas Commissioner of

Insurance found that the defendant’s insurance carrier

providing his defense was impaired, and this proceeding

was therefore automatically stayed for six months. See

the defendant’s Notice of Automatic Stay of Proceedings

on file herein.

Unconstitutional Barriers Invoked By Defendant

8. A month ago the defendant filed his motion ask-

ing the Court to order the plaintiff to file a $7,500 cost

bond and asking the Court to dismiss this case if a $7,500

cash bond is not filed. The defendant’s motion is ground

on the Medical Liability and Insurance Improvement Act,

Tex.Rev.Civ.Stat.Ann., art. 4590i, Section 13.01 (Vernon

Supp. 1998).

9. As shown by the plaintiff’s attached affidavit, the

plaintiff does not have the ability to comply with Section

13.01 in any respect. She cannot afford to make either a

$7,500 cash deposit or the base $5,000 cash deposit pro-

vided for in Section 13.01(a)(2). She cannot afford to make

either a $7,500 cost bond or the base $5,000 cost bond

A-24

provided for in Section 13.01(a)(1). She cannot afford to

pay an expert physician the customary non-refundable

expert retainer of anywhere from $2,000 to $5,000 that is

generally required to secure such services.!

10. It regularly has been held that barriers which

deny persons access to the courts of the State of Texas are

unconstitutional. For example, in Texas Ass‘n. of business v.

Texas Air Control Bd., 852 S.W.2d 440, 449-50 (Tex. 1993),

the Texas Supreme Court held that prepayment and for-

feiture provisions of the Clean Air Act and the Water

Code were unconstitutional and that the Texas Legisla-

ture cannot require prepayment of administrative penal-

ties as a prerequisite to judicial review. In EnRe Corp. v.

Railroad Comm. of Texas, 852, S.W.2d 661 (Tex.App. — Aus-

tin 1993, no writ history), the Court of Appeals held that

the Administrative Procedure and Texas Register Act’s

requirement that a cash deposit or a cost bond be made to

cover the cost of an assessed penalty before judicial

review could be obtained was unconstitutional. The

Court observed that the apparent rationale for the pre-

payment and forfeiture provisions was to deter appeals

and that rationale did not comport with the open courts

provision of the Texas Constitution.

11. The Texas Supreme Court has found unconstitu-

tional several provisions of the Medical Liability and

Insurance Improvement Act in the past. In Lucas v. United

States, 757 S.W.2d 687 (Tex. 1988), the Court held that

1 Since the defendant is a physician, Section 14.01(a) of the

Act restricts the plaintiff to securing the expert opinion of

another physician, a requirement that the plaintiff is financially

unable to afford. See paragraph 9 of plaintiff's affidavit.

A-25

placing a dollar limitation on medical malpractice dam-

ages in Sections 11.02 and 11.03 of art. 4590i,

Tex.Rev.Civ.Stat.Ann., violated the open courts provision

of the Texas Constitution.

12. There is only a single appellate case reported in

Texas that has considered the constitutionality of Section

13.01 of the Act. The facts of that case are not analogous

to the facts in the present case. In Odak v. Arlington

Memorial Hospital Foundation, 934 S.W.2d 868 (Tex.App. -

Ft. Worth, 1996, writ denied), the plaintiff never claimed

that the requirements of Section 13.01 were onerous due

to cost or offered any reason for ignoring the court’s

repeated requests for a response to issues raised by Sec-

tion 13.01. The district court thus dismissed the plaintiff’s

case, and only then did the plaintiff raise an issue of

unconstitutionality in a motion for new trial. The court’s

finding that Section 13.01 was constitutional under the

open courts provision of the Texas Constitution was

made in the absence of any facts showing its impact on

the plaintiff. Such is not the case here whether the impact is

clear, prejudicial, and would deny the plaintiff access to the

courts. In addition, the Court in Odak was not required to

address federal rights of equal protection and due pro-

cess guaranteed by the Fourteenth Amendment of the

United States Constitution.

13. In conclusion, the Court should find that, as

applied to the plaintiff in her financial circumstances and

under her pled causes of action, application of Section

13.01 of the Act is unconstitutional under the open courts

provision of the Texas Constitution and under the equal

protection and due process requirements of the United

States Constitution.

A-25

14. A proposed order denying the Defendant's

motion is attached.

WHEREFORE, premises considered, the Plaintiff

prays that the Court deny the Defendant’s Motion to

Increase Security.

J. RAY RILEY & ASSOCIATES

By: /s/ J. Ray Riley

J. Ray Riley, Tex. No.

16927000

Chelita C. Riley, Tex. No.

00796061

West U. Plaza

6213 Edloe Street

Houston, Texas 77005

Telephone: (713) 667-1170

Telecopier: (713) 667-5945

ATTORNEYS FOR PLAINTIFF

Certificate of Service

The undersigned certifies that he served a copy of the

foregoing document on the defendant in this cause by

service upon his attorneys of record in accordance with

the Texas Rules of Civil Procedure on the 26th day of

February, 1998.

/s/ J} Ray Riley

J. Ray Riley

A-27

[SEAL] THE SUPREME COURT OF TEXAS

Post Office Box 12248

Austin, Texas 78711 (512) 463-1312

July 15, 1999

Mr. J. Ray Riley

J. Ray Riley & Associates

West U. Plaza

6213 Edloe Street

Houston, TX 77005

Mr. Fred E. Davis

Davis & Davis

P. O. Box 1588

Austin, TX 78767

RE: Case Number 99-0440

Court of Appeals Number: 03-98-00205-CV

Trial Court Number: 9701888

Style) WYSONGA McGLOTHLIN

JAMES R. CULLINGTON

Dear Counsel:

Today, the Supreme Court of Texas denied the peti-

tion for review in the above styled case.

Sincerely,

John T. Adams, Clerk

by /s/ Tanya R. Hunter

Tanya R. Hunter, Deputy Clerk

cc: Ms. Diane O’Neal, Clerk

Ms. Amalia Rodriguez-Mendoza

A-28

[Texas Medical Liability and Insurance Improvement Act,

Tex. Rev. Civ. Stat. Ann. art. 4590i (West Supp. 1999)]

SUBCHAPTER M. PROCEDURAL PROVISIONS

Cost Bond, Deposit, and Expert Report

Sec. 13.01. (a) In a health care liability claim, a claim-

ant shall, not later than the 90th day after the date the

claim is filed:

(1) file a separate cost bond in the amount of $5,000

for each physician or health care provider named by the

claimant in the action;

(2) place cash in an escrow account in the amount of

$5,000 for each physician or health care provider named

in the action; or

(3) file an expert report for each physician or health

care provider with respect to whom a cost bond has not

been filed and cash in lieu of the bond has not been

deposited under Subdivision (1) or (2) of this subsection.

(b) If, as to a defendant physician or health care

provider, an expert report, cost bond, or cash in lieu of

bond has not been filed or deposited within the period

specified by Subsection(a) or (h) of this section, the court,

on the motion of the affected physician or health care

provider, shall enter an order that:

(1) requires the filing of a $7,500 cost bond with

respect to the physician or health care provider not later

than the 21st day after the date of the order; and

(2) provides that if the claimant fails to comply with

the order, the action shall be dismissed for want of pros-

ecution with respect to the physician or health care

ene ee eee

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provider, subject to reinstatement in accordance with the

applicable rules of civil procedure and Subsection (c) of

this section.

Subsection (b)(2) of this section may be reinstated, the

claimant must pay the costs “of court incurred by the

defendant before the dismissal and file a $7,500 cost bond

for each defendant physician or health care provider.

(d) Not later than the later of the 180th day after the

date on which a health care liability claim is filed or the

last day of any extended period established under Sub-

section (f) or (h) of this section, the claimant shall, for

each physician or health care provider against whom a

claim is asserted:

(1) furnish to counsel for each physician or health

care provider one or more expert reports, with a curricu-

lum vitae of each expert listed in the report; or

(2) voluntarily nonsuit the action against the physi-

cian or health care provider.

(e) Ifa claimant has failed, for any defendant physi-

cian or health care provider, to comply with Subsection

(d) of this section within the time required, the court

shall, on the motion of the affected physician or health

care provider, enter an order awarding as sanctions

against the claimant or the claimant's attorney:

(1) the reasonable attorney’s fees and costs of court

incurred by that defendant;

(2) the forfeiture of any cost bond respecting the

claimant’s claim against that defendant to the extent nec-

essary to pay the award; and

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(3) the dismissal of the action of the claimant against

that defendant with prejudice to the claim’s refiling.

(f) The court may, for good cause shown after

motion and hearing, extend any time period specified in

Subsection (d) of this section for an additional 30 days.

Only one extension may be granted under this subsec-

tion.

(g) Notwithstanding any other provision of this sec-

tion, if a claimant has failed to comply with a deadline

established by Subsection (d) of this section and after

hearing the court finds that the failure of the claimant or

the claimant’s attorney was not intentional or the result

of conscious indifference but was the result of an accident

or mistake, the court shall grant a grace period of 30 days

to permit the claimant to comply with that subsection. A

motion by a claimant for relief under this subsection shall

be considered timely if it is filed before any hearing on a

motion by a defendant under Subsection (e) of this sec-

tion.

(h) The affected parties may agree to extend any

time period specified in Subsection (a) or (d) of this

section. An agreement under this subsection is binding

and shall be honored by the court if signed by the

affected parties or their counsel and filed with the court.

(i) Notwithstanding any other provision of this sec-

tion, a claimant may satisfy any requirement of this sec-

tion for filing an expert report by filing reports of

separate experts regarding different physicians or health

care providers or regarding different issues arising from

the conduct of a physician or health care provider, such

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as issues of liability and causation. Nothing in this sec-

tion shall be construed to mean that a single expert must

address all liability and causation issues with respect to

all physicians or health care providers or with respect to

both liability and causation issues for a physician or

health care provider.

(j) Nothing in this section shall be construed to

require the filing of an expert report regarding any issue

other than an issue relating to liability or causation.

(k) Notwithstanding any other law, an expert report

filed under this section:

(1) is not admissible in evidence by a defendant;

(2) shall not be used in a deposition, trial, or other

proceeding; and

(3) shall not be referred to by a defendant during the

course of the action for any purpose.

(1) A court shall grant a motion challenging the

adequacy of an expert report only if it appears to the

court, after hearing, that the report does not represent a

good faith effort to comply with the definition of an

expert report in Subsection (r)(6) of this section.

(m) On the claimant’s compliance with the require-

ments of Subsection (d) of this section:

(1) any cost bond filed or cash deposited in an escrow

account by the claimant under this section shall be

released;

(2) the claimant, the claimant’s counsel, and any

surety have no liability on the cost bond or cash deposit;

and

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(3) an execution shall not be issued on the cost bond

or cash deposit.

(n) If a claimant nonsuits a health care liability

claim against a physician or health care provider before

filing a cost bond and seeks to refile the same or a similar

health care liability claim against the physician or health

care provider, the claimant shall file a $7,500 cost bond

for each previously nonsuited physician or health care

provider at the time of the filing of the health care lia-

bility claim. If the claimant fails to file the $7,500 cost

bond for each physician or health care provider, on

motion and hearing the court shall order the filing of the

cost bond and the claimant shall pay the movant reason-

able attorney’s fees incurred in obtaining relief under this

subsection.

(0) Notwithstanding any other provision of this sec-

tion, a claimant who is proceeding without an attorney

and who is unable to afford a cost bond or cash deposit

may, in lieu of a cost bond or cash deposit, file an affi-

davit in the same form required for an affidavit in lieu of

security for costs under the Texas Rules of Civil Pro-

cedure.

(p) In the event of a conflict between this section

and another law, including a rule of procedure or court

rule, this section controls to the extent of the conflict.

(q) Notwithstanding the provisions of Section

22.004, Government Code, the supreme court may not

amend or adopt rules in conflict with this section. The

district courts and statutory county courts in a county

may not adopt local rules in conflict with this section.

— ied

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(r) In this section:

(1) “Affected parties” means the claimant and the

physician or health care provider who are directly

affected by an act or agreement required or permitted by

this section and does not include other parties to an

action who are not directly affected by that particular act

or agreement.

(2) “Claim” means a health care liability claim.

(3) “Claimant” means a party who files a pleading

asserting a claim. All plaintiffs claiming to have sustained

damages as the result of the bodily injury or death of a

single person are considered to be a single claimant.

(4) “Defendant” means a physician or health care

provider against whom a health care liability claim is

asserted. The term includes a third-party defendant,

cross-defendant, or counterdefendant.

(5) “Expert” means:

(A) with respect to a person giving opinion testimony

regarding whether a physician departed from accepted

standards of medical care, an expert qualified to testify

under the requirements of Section 14.01(a) of this Act; or

(B) with respect to a person giving opinion testimony

about a nonphysician health care provider, an expert who

has knowledge of accepted standards of care for the

diagnosis, care, or treatment of the illness, injury, or

condition involved in the claim.

(6) “Expert report” means a written report by an

expert that provides a fair summary of the expert’s opin-

ions as of the date of the report regarding applicable

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standards of care, the manner in which the care rendered

by the physician or health care provider failed to meet

the standards, and the causal relationship between that

failure and the injury, harm, or damages claimed.

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J. Ray Ritey & Associates

ATToRNeEYs AT Law

West VU. PLaza

6213 Eptor Street

Houston, Texas 77005

TELEPHONE: (713) 667-1170 TeLecopierR: (713) 667-5945

INTERNET: JRRLAW@AOL.COM

March 10, 1998

Re: No. 9701888, McGlothlin v. Cullington,

345th District Court,

Travis County, Texas

Faxed: 512/473-9549

Honorable Peter M. Lowry

Judge, 261st Judicial District Court

P.O. Box 1748

1000 Guadalupe Street

Austin, Texas 78767

Dear Judge Lowry:

On February 27, 1998, a hearing was held on the

Defendant’s Motion to Increase Security based on section

13.01 of the Texas Medical Liability and Insurance

Improvement Act (Article 4590i, Tex.Civ.Stat.Ann.). Plain-

tiff’s written response included her affidavit concerning

financial inability to comply with the requirements of

Section 13.01. Mr. Fred Davis, representing the Defen-

dant, sent the Court a written reply in the form of a letter,

dated March 3, 1998. This letter responds to Mr. Davis’

) comments.

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The substance of the Defendant's reply is that liti-

gants suing doctors should demonstrate the soundness of

their case by “putting their money where their mouth is”

(page 3). The writers of the Texas Constitution did not

have such a barrier or burden in mind when-they wrote

Section 13, article I, which reads in part:

“All courts shall be open, and every person for an

injury done him, in his lands, goods, person or

reputation, shall have remedy by due course of law.”

Nor is this barrier or burden to be found in the Four-

teenth Amendment to the United States Constitution

which reads in part:

“No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any per-

son of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction

the equal protection of the laws.”

The right of access to the courts is a fundamental

constitutional right. Bounds v. Smith, 430 U.S. 817, 97 S.

Ct. 1491 (1977). The right of access to the courts was

amply demonstrated in Boddie v. Connecticut, 401 U.S. 371,

91 S. Ct. 780 (1971), which held that the Due Process

Clause was violated when the appellants were denied

access to the courts n seeking divorces when they were

financially unable to pay in advance court costs and fees.

The United States Supreme Court recognized that the

right to a meaningful opportunity to be heard within the

limits of practicality must be protected against denial by

particular laws that would operate to jeopardize the right

for particular individuals. The Court concluded that a

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cost requirement may offend due process when it oper-

ates to foreclose a particular party’s opportunity to be

heard in court. In Boddie, the State of Connecticut argued

that its fee and cost requirement was justified as a means

of preventing frivolous litigation. The Supreme Court

rejectec this argument as being insufficient to override

the interest of the appellants in having access to the

courts. The Court pointed out there was no necessary

connection between a litigant’s assets and the seriousness

of his motives in bringing suit.!

' Yeur Honor may recall that at the February 27 hearing this

writer mentioned he had never encountered a requirement that

security be posted as a condition to seeking relief in any federal

or state courts. Footnote 9 of the Boddie case referred to and

distinguished a 1949 case involving such a requirement. In

Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221 (1949),

where the ultimate question was whether a federal court sitting

in diversity was required to apply a forum state statute, the

United States Supreme Court found constitutional a New Jersey

statute that required a less than five percent owner of stock to

post security for costs and attorney’s fees before pursuing a

stockholler’s derivative action against corporate officers and

directors. The rationale was that corporations are wholly

artificialcreations of the state, that the state has wide powers in

reguiatirg corporations and litigations of a fiduciary nature,

and thata stockholder who brings a derivative action assumes a

fiduciary position as representative of a class such that: “The

interests of all in the redress of the wrongs are taken into his

hands, dependent upon his diligence, wisdom and integrity.”

None of these distinguishing issues are present in the case at

bar. Moreover, the concepts of due process and equal protection

under the law have traveled generations since Cohen in 1949 as

demonstrated by subsequent United States Supreme Court

decisions, including Burns v. Ohio, 360 U.S. 252, 79 S. Ct. 1164

(1959) wnich invalidated a procedure where cases within the

jurisdiction of a state supreme court would not be considered if

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Where fundamental rights and liberties are asserted

under the Equal Protection Clause of the United States

Constitution, classifications which might invade or

restrain them must be strictly scrutinized and carefully

confined. San Antonio Indep. Sch. Dist. v. Rodriguez, 411

U.S. 1, 93 S. Ct. 1278 (1973); Harper v. Virginia Bd. of

Elections, 383 U.S. 663, 86 S. Ct. 1079 (1966). Thus, a Texas

state law that created barriers to candidate access to the

primary ballot by preventing potential candidates for

public office from seeking nomination of their party as a

result of their inability to pay a portion of the cost of

conducting primaries unlawfully discriminated against

the candidates thus excluded and was a denial of equal

protection and unconstitutional. Bullock v. Cater, 405 U.S.

134, 92 S. Ct. 849 (1972). The United States Supreme Court

found that the very size of fees imposed under the Texas

system gave it a patently exclusionary character where the

filing fees for a state representative ranged from $150 to

$600, for a state senator could reach a maximum of

$1,000, for a statewide office was $1,000, and in some

instances could reach as much as $8,900, notwithstanding

that the purpose of the fees was to help finance the

primary elections. The Texas system fell with unequal

weight on candidates according to their economic status

and utilized the criterion of ability to pay as a condition

to being on the ballot. The same can be said of Section

13.01 of the act where the ability to afford either a $5,000

a person could not pay the filing fee, and Smith v. Bennett, 365

U.S. 708, 81 S. Ct. 895 (1961) where requiring indigents to pay

filing fees before a writ of habeas corpus could be considered in

state court was invalidated under the Equal Protection Clause.

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cash deposit?, a $5,000 security bond, or an expensive

doctor’s opinion is a patently exclusionary condition to

obtaining access to the court. Mr. Justice Brennan made

the point well in the Boddie case:

“Where money determines not merely ‘the kind

of trial a man gets,’ . . . but whether he gets into

court at all, the great principle of equal protec-

tion becomes a mockery. A State may not make

its judicial processes available to some but deny

them to others simply because they cannot pay a

fee.”

Nor is ability to pay necessarily the key to denial of equal

protection. A state’s imposition of even a minimal poll

tax that did not exceed $1.50 on residents is invidious

discrimination and a denial of equal protection. Harper v.

Virginia Board of Elections, 383 U.S. 663, 86 S. Ct. 1079

(1966).

2 Section 13.01(a)(1) and (2)’s sum of $5,000 would appear

to be an arbitrary sum not having any point of reference to

actual costs that might be incurred in a given case. The same

would appear to be true for Section 13.01(b)(1) permitting an.

increase to $7,500. The magnitude of these sums without

reference to any points of reference suggests their selection was

calculated to create impermissible barriers to access to the

courts.

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In summary, we do not believe Section 13.01 passes

muster under the Constitutions of the State of Texas? and

of the United States and shoud be held invalid.

Respectfully,

/s/ J. Ray Riley

J. Ray Riley

cc: Fred E. Davis, Esq.

* Plaintiff's arguments concetning the Texas Constitution

and relevant cases are developed in her previously filed

response to the Defendant's motiOn and are not repeated here.

A-41

No. 9701888

WYSONGA § IN THE DISTRICT

McGLOTHLIN, § COURT OF TRAVIS

Plaintiff, : COUNTY, TEXAS

; : 345th JUDICIAL

, 3 DISTRICT

JAMES R. 8

CULLINGTON, :

Defendant. §

AFFIDAVIT OF WYSONGA McGLOTHLIN

STATE OF TEXAS

MMM

COUNTY OF HARRIS

BEFORE ME, THE UNDERSIGNED AUTHORITY, on

this day personally appeared WYSONGA McGLOTHLIN,

known to me to be the person whose name is subscribed

below, who being by me first duly sworn upon her oath

deposed and said:

1. “My name is WYSONGA McGLOTHLIN. I am

the Plaintiff in the above entitled and numbered cause. I

have personal knowledge of the facts set forth below, and

I am fully competent to testify in the court of the State of

Texas.

2. “On February 16, 1995, following a determination

that I had a malignant tumor in my breast, my doctor

performed surgery and removed the tumor and sur-

rounding the [sic] breast tissue. On the same day Dr.

William M. Davis performed reconstructive surgery. He

A-42

inserted a breast implant in my breast. The surgery lasted

a total of approximately eight hours.

3. “There was quite a bit of swelling around my

right breast and under my arm. It was necessary that the

liquid causing the swelling be aspirated regularly. During

the recovery period Dr. Davis had to go out of town for

about a week, and he asked me to go to the defendant,

Dr. James R. Cullington, for medical treatment while Dr.

Davis was away.

4. “When I went to Dr. Cullington he inserted the

needle of a syringe into my breast, pulled it out, looked at

the liquid drawn into the syringe, and said he didn’t like

the color of the liquid. Dr. Cullington appeared shocked,

and he told me he thought he had punctured by [sic]

breast implant and that the fluid he saw drawn into the

syringe was from the implant itself. Dr. Cullington told

me to make an appointment to see Dr. Davis as soon as

Dr. Davis returned.

5. “My breast then went flat before Dr. Davis

returned from being out of town. As soon as I could see

Dr. Davis, he looked at my breast, saw it was flat, and

said there was no doubt about it. Dr. Davis said he was

going to have to fix it, but we would have to wait until

the original incisions healed well enough to redo the

implant. Later Dr. Davis did redo the implant.

6. The injury extended the length of my recovery

from surgery and caused me anguish, worry and depres-

sion.

7. “My attorney, J. Ray Riley, has brought to my

attention a “Motion to Increase Security” that has been

A-43

filed by Dr. Cullington. The motion seeks to require me to

either post a $7,500 bond or place $7,500 in cash on

deposit with the Court.

8. “I do not have the financial resources with which

to either post a $5,000 to $7,500 bond or to pay into the

registry of the Court $5,000 to $7,500 cash as a deposit.

9. I also understand there is a possibility that the

Court might permit me to obtain an expert's report relat-

ing to Dr. Cullington’s puncturing of my breast implant

and whether that constitutes negligence. It is my under-

standing such an expert would have to be a physician

because Dr. Cullington, the defendant in this case, is a

physician. It is my further understanding, based upon

information from my attorney, that an expert physician

would likely require that I pay him a retainer of at least

$2,000.00 in order to engage the expert and obtain a

liability report from him. I do not have the financial

ability to pay such a large sum of money and therefore

could not obtain an expert's report.

10. If the Court requires me to either obtain an

expert physician’s report, obtain a $5,000 to $7,500 bond,

or pay cash of $5,000 to $7,500 as a cash deposit in this

case, I will be unable to comply with the Court’s direc-

tive. It is my understanding the Court will dismiss my

case against Dr. Cullington if I do not comply.

11. “Since I cannot comply with any such directive,

if the Court dismisses my case because of failure to

comply, I will be denied access to the courts of the State

of Texas to seek recovery of the damages to me from what

Dr. Cullington did by puncturing by breast implant. I

believe such a dismissal would deny me access to the

A-44

courts as guaranteed by Article I, Section 13, of the Texas

Constitution. I also believe such a dismissal of my claim

would be a denial of equal protection and the due process

of law that is guaranteed to citizens of the United States

under the United States Constitution and its Fourteenth

Amendment.

“Further the deponent sayeth not.”

/s/ Wysonga McGlothlin

WYSONGA McGLOTHLIN

SUBSCRIBED AND SWORN TO BEFORE ME, the

undersigned authority, on this 26 day of February, 1998.

/s/ Jennifer Ashlock

Notary Public, State of Texas

— a |

A-45

No. 03-98-00205-CV

In the

THIRD COURT OF APPEALS

OF TEXAS

WYSONGA McGLOTHLIN,

Appellant,

JAMES R. CULLINGTON,

Appellee.

From the 345th District Court of

Travis County, Texas

APPELLANT’S BRIEF

J. Ray Riley

State Bar No. 16927000

Chelita C. Riley

State Bar No. 00796061

J. RAY RILEY & ASSOCIATES

West U. Plaza

6213 Edloe Street

Houston, Texas 77005

Telephone: (713) 667-1170

Telecopier: (713) 667-5945

ATTORNEYS FOR APPELLANT

* * *

A-46

ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

Appellant: Wysonga McGlothlin

J. Ray Riley

Chelita C. Riley

Trial and appellate

counsel of Appellant: J. Ray Riley & Associates

West U. Plaza

6213 Edloe Street

Houston, Texas 77005

Appellee: James R. Cullington

Trial and appellate

counsel of Appellee: Fred E. Davis

Davis & Davis

9442 Capital of Texas Highway

Arbortetum Plaza I, Suite 950

P.O. Box 1588

Austin, Texas 78767

REQUEST FOR ORAL ARGUMENT

Appellant, Wysonga McGlothlin, respectfully

requests oral argument.

RECORD REFERENCES

The appellate record consists of the clerk’s record,

volume 1, which contains pages numbered trom 1 to 56.

[he clerk’s record is reterred to in this brief by page

number. for example, “CR 31” means clerk’s record, vol-

ume 1, page 31.

A-47

This brief contains an appendix of documents identi-

fied by alphabetical exhibit tabs referred to as “(Appen-

Gix, Exnr. __)”.

There is no reporter's record.

* 7 .

TABLE OF CONTENTS

Page

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

REQUEST FOR ORAL ARGUMENT................

a MEU MEY 60k s nc caces ean vGadindenass il

pp oS Rs Bes) |: 4 Sr ere iil

jot 6 ba ae bay 8). ee oe

STATEMENT OF THE CASE............050000:. Vill

BSSUES PHOBIC EO 6 cc cc ccececcccscs SORE,

1. Whether in a civil action to recover damages

the Due Process Clause and the Equal Protec-

tion Clause of the Fourteenth Amendment of

the United States Constitution are violated by

the refusal of a state court to permit the

Appellant to prosecute her claim against a

physician because she cannot afford:

A. a $5,000 cost bond or a $5,000 cash secu-

rity deposit, or

B. a costly expert's report.

ll. Whether in a civil action to recover damages

the Open Courts Guarantee of the Texas Con-

stitution is violated by the refusal of a state

court to permit the Appellant to prosecute her

A-48

claim against a physician because she cannot

attord:

A. a $5,000 cost bond or a $5,000 cash secu-

rity deposit, or

B. a costly expert's report.

Ill. Whether the Texas Medical Liability and

Insurance Improvement Act’s 1995 amend-

ment requiring that parties who sue physi-

cians and health care providers demonstrate

the soundness of their case by “putting their

money where their mouth is” is constitutional

under the Open Courts Guarantee of the Texas

Constitution.

IV. Whether the Texas Medical Liability and

Insurance Improvement Act’s 1995 amend-

ment of section 13.01 is a special law that

violates Article III, Section 56, of the Texas

Constitution.

SEAR OMMeE GO TICES i6 isn coins cic cceuesewncces

SUMMARY OF ARGUMENT. ............cccscesess

fk | tT ECT ETT TOT ETE TOUT COTE E RT TR CTE

A-49

No. 99-0440

THE SUPREME COURT OF TEXAS

WYSONGA McGLOTHLIN,

Petitioner,

JAMES R. CULLINGTON,

Respondent.

From the Court of Appeals for the

Third District of Texas

PETITION FOR REVIEW

J. Ray Riley, TBC 16927000

Chelita C. Riley, TBC 00796061

J]. RAY RILEY & ASSOCIATES

West U. Plaza

6213 Edloe Street

Houston, Texas 77005

Telephone: (713) 667-1170

Fax: (713) 667-5945

ATTORNEYS FOR PETITIONER

IDENTITY OF PARTIES AND COUNSEL

Petitioner: Wysonga McGlothlin

Trial and appellate

counsel of Petitioner: J. Ray Riley

Chelita C. Riley

J. Ray Riley & Associates

West U. Plaza

6213 Edloe Street

Houston, Texas 77005

A-50

Respondent: James R. Cullington

Trial and appellate

counsel of Respondent: — Fred E. Davis

Davis & Davis

P. O. Box 1588

Austin, Texas 78767

TABLE OF CONTENTS

Page

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

SAimaes OP COCO es vince nscuccsneehanes ul

ENDER OF AUTEIOMREN RO co cc cccievecssescaacetnan iv

SEALEMENE OF BEES CASE. . oc csc ansccscseseaees I

STATEMENT OF JURISDICTION.................. |

eg ty 5 rr a err oto: 2

Petitioner tiled suit to recover damages arising

trom the wrongful puncturing of her breast

implant during recovery atter surgery for removal

of a malignant tumor. Causes of action pled were

trespass, assault and battery, and negligence. Peti-

tioner did not have financial resources to file a

$7,500 cost bond ordered by the trial court, and her

case Was dismissed. Does the dismissal violate the

First and Fourteenth Amendments of the United

States Constitution which guarantee access to State

courts, equal protection of the laws, and due pro-

| PPPOE ETT TET OTT TEE TE oe ee ee

SEAT MeEIeS OF FACTS oc vccccickssccoscccduscuuas

SIEGAL COE ATISUIGEING ¢ occccccnnccnscsctecses

per eee rer rE rere

II.

Ill.

A-51

Petitioner Has A Fundamental Right Under

the United States Constitution of Access to

A Texas Statute Has Imposed an Onerous

Financial Barrier That Prevents Petitioner

From Exercising Her Fundamental Constitu-

tional Right of Access to Texas Courts ......

Standard Under United States Constitution for

Determining Whether State Statute Abridges

Fundamental Constitutional Rights Requires

Reasonable Necessity........................

Unnecessary Onerous Financial Barriers That

prevent Exercise of Fundamental Constitu-

tional Rights Are Unconstitutional ...........

Goal of Reducing Frivolous Litigation Does

Not Justity Making Access to Courts Unaftord-

ey Gv aka vise saesccs

Section 13.01 Is Repugnant to the First and

Fourteenth Amendment of the United States

I el

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.