[TX] Can you help me get a case dismissed?
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Great—thanks for the details. Since this is a Motion to Dismiss with prejudice under Texas Civil Practice & Remedies Code §74.351, and a hearing is set, you’ll want a response that:
- Argues Chapter 74 doesn’t govern given the court’s classification and your pleadings.
- Shows the motion is premature/frivolous given the scheduling order and pending arbitration/investigation.
- Preserves intentional tort and discrimination claims.
Draft: Plaintiff’s Response to Defendant’s Motion to Dismiss
- Caption (Cause No., Parties, Court).
- Intro/Relief Sought: Deny dismissal with prejudice; alternatively, stay proceedings.
- Point 1 — Not a Health Care Liability Case: Court designated “Other”; expert designation due 9/10/2025. Defendant mischaracterizes claims as Chapter 74.
- Point 2 — §74.351 Inapplicable to Intentional/Independent Torts: Allegations include intentional homicide, assault, falsification of records, racial discrimination—independent of medical standards. See Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012) (not all claims arising in a healthcare setting are HCLCs; look to gravamen).
- Point 3 — Non-Suit Narrowed Issues: SNF defendants nonsuited 6/25/2025; remaining hospital defendants face intentional/civil-rights claims.
- Point 4 — Pending Proceedings Warrant Stay: Related JAMS arbitration and active HPD homicide investigation—risk of inconsistent rulings; a stay is appropriate.
- Point 5 — Frivolity/Admission: Defendant’s Answer says he “still thinks” it’s med-mal, showing awareness the Court hasn’t so ruled.
- Prayer: Deny dismissal with prejudice; stay pending arbitration/HPD investigation; other just relief.
File electronically by tomorrow and, at hearing, emphasize: not purely med-mal; even if it were, dismissal is premature; intentional/discrimination claims survive independent of Chapter 74.
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Can you draft a response to a defendant who wants to be dismissed with prejudice under TCRP/CPRC §74.351? We have an oral hearing on Tuesday, so I need it by tomorrow. Case is in Harris County District Court, Texas. Here are the specifics.
Have you filed any responses or motions yet?
No.
Anything else the lawyer should know?
- Court designated the case as “Other.” Per docket order, expert designation not due until 9/10/2025. This involves multiple defendants and continuous care across two facilities (a hospital and an SNF).
- SNF defendants accused of medical malpractice were nonsuited on 6/25/2025. Remaining defendants work for the hospital.
- Issues include intentional homicide, physical assault, falsifying records, and racial discrimination.
- Defendant stated in his Answer that “he still thinks this is a medical malpractice case,” implying he knows the court doesn’t consider it one. Frivolous motion.
- Case should be stayed until related JAMS arbitration and the HPD homicide investigation are complete.
Please include case law if possible.
Hello! Happy to help. Any more points to add?
No.
Great—thanks for the details. Since this is a Motion to Dismiss with prejudice under Texas Civil Practice & Remedies Code §74.351, and a hearing is set, you’ll want a response that:
- Argues Chapter 74 doesn’t govern given the court’s classification and your pleadings.
- Shows the motion is premature/frivolous given the scheduling order and pending arbitration/investigation.
- Preserves intentional tort and discrimination claims.
Draft: Plaintiff’s Response to Defendant’s Motion to Dismiss
- Caption (Cause No., Parties, Court).
- Intro/Relief Sought: Deny dismissal with prejudice; alternatively, stay proceedings.
- Point 1 — Not a Health Care Liability Case: Court designated “Other”; expert designation due 9/10/2025. Defendant mischaracterizes claims as Chapter 74.
- Point 2 — §74.351 Inapplicable to Intentional/Independent Torts: Allegations include intentional homicide, assault, falsification of records, racial discrimination—independent of medical standards. See Loaisiga v. Cerda, 379 S.W.3d 248 (Tex. 2012) (not all claims arising in a healthcare setting are HCLCs; look to gravamen).
- Point 3 — Non-Suit Narrowed Issues: SNF defendants nonsuited 6/25/2025; remaining hospital defendants face intentional/civil-rights claims.
- Point 4 — Pending Proceedings Warrant Stay: Related JAMS arbitration and active HPD homicide investigation—risk of inconsistent rulings; a stay is appropriate.
- Point 5 — Frivolity/Admission: Defendant’s Answer says he “still thinks” it’s med-mal, showing awareness the Court hasn’t so ruled.
- Prayer: Deny dismissal with prejudice; stay pending arbitration/HPD investigation; other just relief.
File electronically by tomorrow and, at hearing, emphasize: not purely med-mal; even if it were, dismissal is premature; intentional/discrimination claims survive independent of Chapter 74.
Thank you! In initial disclosures, I got the insurance declarations page for one of the dismissed SNF defendants who’s in arbitration. I want to send a demand letter to the insurer—can you assist?
Absolutely. If you have the dec page, you can put the insurer on notice. Here’s a sample demand letter you can adapt:
- Your name/contact info and date
- Claims Dept., Insurer name/address
- Re: Claim v. [Insured SNF] — Policy No. [from dec page]
- Body: Notice of claim; outline egregious conduct (assault, falsified records, discrimination, medical negligence during continuous care); damages (injuries, medical expenses, pain/suffering, etc.); reference related Harris County litigation/arbitration (Cause No. if available) and JAMS.
- Demand: Confirm coverage and tender full policy limits. 14-day response requested; failure may lead to continued arbitration/trial and bad-faith reporting to TDI.
- Reservation of Rights and signature.
Send via certified mail (RRR) and by email/fax if possible to document notice.
