10/9/2018 5:08 PM
Chris Daniel - District Clerk Harris County
Envelope No. 28153479
By: Justin Fitzgerald
Filed: 10/9/2018 5:08 PM

CAUSE NO. 2016-03350
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(PLAINTIFF)
VS.
CHI ST. LUKE’S HEALTH BAYLOR
COLLEGE OF MEDICINE MEDICAL
CENTER

HARRIS COUNTY, TEXAS

55TH JUDICIAL DISTRICT

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(DEFENDANT)

IN THE DISTRICT COURT

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TOMAS G. RIOS, M.D.

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TO THE HONORABLE JUDGE OF SAID COURT:

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PLAINTIFF’S SECOND AMENDED PETITION

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COMES NOW, Plaintiff, Tomas G. Rios, M.D. (“Dr. Rios”) and files this his Second

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Amended Petition and would respectfully show unto the Court as follows:

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Dr. Rios intends that discovery be conducted under Level 3 and requests that the Court

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I. DISCOVERY

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implement a docket control or scheduling order.
II. PARTIES

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2. Plaintiff, Tomas G. Rios, M.D. is a resident of Harris County, Texas.

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3. Defendant, CHI St. Luke’s Health Baylor College of Medicine Medical Center, doing

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business as St. Luke’s Medical Center (“St. Luke’s” or “Defendant”) is a domestic nonprofit
corporation that is licensed to do business in Texas and it may be served with process by serving
its registered agent for service of process, CT Corporation System, at 1999 Bryan St., Ste. 900,
Dallas, Texas 75201-3136.

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Plaintiff’s Second Amended Petition

Page 1

 III. JURISDICTION
4. This Court has jurisdiction over the lawsuit because the amount in controversy exceeds this
Court’s minimum jurisdictional requirements. Plaintiff seeks monetary relief over $1,000,000.00,
including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees.

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5. Venue is proper in Harris County under the Texas Health and Safety Code as it is the
District Court in the County where Defendant conducts business.
IV. FACTS

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6. On or about September 14, 2015, Dr. Rios, adhering to both his legal and ethical

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obligations, reported wrongdoings and violations of the law made by other Doctors working for

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Defendant and in particular the RRT system. Subsequent to Dr. Rios reporting the violations, Dr.

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Rios became the victim of retaliatory actions by Defendant and its supervising physicians. False

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accusations were made against Dr. Rios through sham peer reviews designed to inhibit Dr. Rios’s

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ability to practice medicine in the State of Texas.

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7. In particular, Dr. Narcisse, a representative of Defendant, asked for a conference with Dr.

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Rios. In that conference, Dr. Rios was told that things may not turn out good for him and that he

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may get suspended pending a peer review completion. Dr. Narcisse was basing his information

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on conversations he had with the Chief Operating Officer, David Berger, Chief of Staff, Michael

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Wilson, and Director of ICU, James Herlihy. Dr. Narcisse said that in the last 24 hours, he been
made to feel like he needs to fix the problem immediately. Dr. Narcisse said that he was called by
Dr. Wilson and that Dr. Wilson said that had he heard about matters (those accusations made by
Dr. Herlihy) within 24 hours of occurrence, Dr. Rios would have been summarily suspended.
8. Dr. Narcisse said that the hospital’s political climate must be considered. and that the
politics of everything were on Dr. Herlihy’s side. He said that when peers look at it, they were
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Plaintiff’s Second Amended Petition

Page 2

 going to give a level 4 adjudication (an intent to harm). Dr. Narcisse said that people had already
made up their mind about how they would find. They had just imposed that finding on another
doctor because of two adverse malpractice claims that were settled. Dr. Narcisse said that Dr. Rios

were going to evaluate everything the Dr. Rios had ever done.

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could be suspended without Dr. Wilson even hearing one side. They sent a clear message that they

9. Dr. Narcisse said he was certain the outcomes of the review would be against him, just
didn’t know how severe. Dr. Narcisse indicated that if Dr. Rios left the medical staff, that the peer

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review would not take place. Dr. Narcisse said that if, Dr. Rios manages to get out of the situation,

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Dr. Rios will have to be even better than everyone else in the future to avoid any future complaints.

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Dr. Narcisse indicated that he admired Dr. Rios’ passion, but that he should have waited for “air
He indicated that he would be comfortable with Dr. Rios caring for his

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cover” before acting.

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mother. Dr. Wilson told Plaintiff that if he resigned his privileges it would all go away.

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10. A transcript of the recorded conversation is attached hereto as Exhibit “A” and incorporated

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herein by reference. The gist of Plaintiff’s conversations was that a peer review would be

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conducted, but that everyone had already made up their mind to issue a level 4 finding. As such,

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Defendant recommended that Dr. Rios resign rather than be subjected to a review.

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11. Such acts by the Defendant were in clear retaliation for Dr. Rios voicing his opinion and

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raising concerns regarding the RRT System. In particular, Dr. Rios had informed Defendant that
by not following the proper procedures, including speaking with attending physicians prior to any
rapid response treatment, that the Defendant was violating Texas Occupations Code 162.0021,
162.0022, and 157.054. Defendant’s response was to guarantee the worst possible peer review
before one even began, this too is a violation of Texas Health and Safety Code Section 241.101,
by not affording Dr. Rios due process as required by federal law.
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Plaintiff’s Second Amended Petition

Page 3

 12. On November 17, 2015 and again on December 9, 2015, Dr. Rios, through his counsel,
informed St. Luke’s management of the wrongdoings.
13. Defendant’s actions have not stopped, even with the filing of the original lawsuit. On June
13, 2018, Dr. Rios again raised concerns regarding the RRT and the Intensive Care Unit. In this

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instance, Dr. Rios complained that instructions regarding his patients were disregarded by the ICU
team, leaving the patients in harm’s way.

14. After making the complaint, Dr. Rios received a message from Gay Nord’s office, Market

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President of Defendant, requesting a meeting on June 29, 2018. In the meeting, Defendant once

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again informed Dr. Rios that some of his cases went to peer review that raised concern. Defendant

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informed Dr. Rios that he was not to interfere with the care of patients in the intensive care units,

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and that if he did, he would be summarily suspended. They claimed, that this decision was

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approved by a professional practice evaluation committee, and that the medical executive

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committee agreed. At the conclusion of the meeting, Dr. Rios iterated that his number one priority

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is to his patients, and it always will be. He stated that if the rapid response or critical care

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jeopardizes his patient care, then he will act accordingly.

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15. On that same day, June 29, 2018, Dr. Rios was hand delivered a letter raising concerns

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related to “unprofessional behavior, patient safety, quality, outcomes, and medical judgment.”

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Thereafter, on July 10, 2018, while Dr. Rios was on vacation, Defendant sent Dr. Rios a
Confidential Certified Letter questioning his actions with respect to a patient. Subsequently, in
undoubtedly a self-serving attempt to Defendant to discredit Dr. Rios, Defendant sent additional
Certified Letters inquiring into his medical decisions. On August 3, 2018, Dr. Rios received
noticed that an evaluation of his practitioner performance was done on June 22, 2018. He also
received another letter that day questioning his actions on a July 6, 2018 visit. Then on August
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Plaintiff’s Second Amended Petition

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 31, 2018, Dr. Rios received two separate certified letters one regarding a May 3, 2018 “evaluation”
and the other on a separate July 6, 2018 “evaluation.” In both, Dr. Rios was alleged to have a
significant deviation from the standard of care.
16. Additionally, if the commenced vendetta against Dr. Rios’s medical performance was not

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enough, Defendant also felt the need to send a letter on June 28, 2018 asking him not to leave
business cards advertising his private practice. Something that is done by several physicians
working at the hospital.

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17. It is apparent that Defendant, or those in a position of influence at the Hospital, do not like

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criticism, or being informed that their policies in practice fail to adhere to the requirements

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imposed by law. As such, they have chosen instead not to change their practices, but to do what

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they can to discredit Dr. Rios. This has been seen in practice with the nursing staff at Defendant’s

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facility. In June, the Director, Margaret Diano told the nursing staff make sure that Dr. Rios is

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performing time out procedures, and if not to file an incident report. It is apparent that Defendant

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is targeting Dr. Rios to build a case for dismissal of privileges. Furthermore, one of the Registered

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Nurses overheard various physicians commenting that they don’t want Dr. Rios working on their

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patients saying, “do not get me in trouble” … “you must be trying to get me fired.”

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job.

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18. The message Defendant sends its staff and physicians is keep quite or you will lose your

V. CAUSE OF ACTION 1 – Violations of Texas Health & Safety Code

19. Dr. Rios repeats and re-alleges the facts and allegations set forth in the foregoing
paragraphs as if fully set forth herein.
20. St. Luke’s, through its supervisors and other personnel, violated Texas Health and Safety
Code Section 161.135 by retaliating against Dr. Rios, through threats, discipline, additional
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Plaintiff’s Second Amended Petition

Page 5

 oversight, false accusations, and sham peer reviews who reported wrongdoings and violations of
the law.
21. Furthermore, Defendant’s actions in threatening peer review, and guaranteeing the results,
are a violation of Section 241.101 of the Texas Health & Safety Code. In particular, Defendant

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must afford physicians due process that meets the requirements of 42 U.S.C. Section 11101 et seq.,
as amended. 42 U.S.C. Section 11112 requires among other things, that adequate notice and a
hearing procedure be afforded a physician. Furthermore, if action is to be taken, a physician must

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be afforded proper notice.

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22. Defendant’s Rapid Response Team, and Intensive Care unit, violate their own policies, and

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the law, by not contacting the attending physician prior to treatment. Furthermore, Defendant,

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makes note that physicians are called, but they don’t actually contact them. Defendant’s recent

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his patients in the intensive care unit.

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actions emphasize this practice, when they threatened Dr. Rios from “interfering” with the care of

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IX. Conditions Precedent

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23. All conditions precedent to Plaintiff’s claim for relief have been performed or have

X. Application for Injunctive Relief

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occurred.

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24. Dr. Rios repeats and re-alleges the facts and allegations set forth in the foregoing
paragraphs as if fully set forth herein.
25. The actions of Defendant, including the most recent actions from Friday June 29, 2018,
threaten Dr. Rios’s ability to work in his chosen profession, and are clear violations of the law.
Texas Civil Practice & Remedies Code Section 65.0011 authorizes injunctive relief when a party
is entitled to the relief demanded, and all or part of the relief requires the restraint of some act
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Plaintiff’s Second Amended Petition

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 prejudicial to the applicant. Injunctive relief is also granted when a party performs or is about to
perform, or is procuring or allowing the performance of, an act relating to the subject litigation, in
violation of the applicant’s rights, and the act would tend to render judgment in that litigation
ineffectual.

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26. An applicant must show it has a probable right to relief, that he will suffer a probable injury,
which is imminent and irreparable, and that there is no adequate remedy at law. In the present
case, Dr. Rios has plead a case for retaliation under the Texas Occupations Code and reported

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violation of the Texas Health and Safety Code. Defendant has told Dr. Rios, that it will summarily

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suspend him if he involves himself in his own patients’ care in the intensive care unit, a clear

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violation of law. As such, harm is imminent, as Dr. Rios will have to neglect his patients should

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he choose to follow Defendant’s unlawful mandate. Should Defendant summarily suspend and

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revoke Dr. Rios’ privileges, Dr. Rios will be irreparably harmed, not only with the suspension, but

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with the reportable occurrence appearing on his record, that could prevent Dr. Rios from renewing

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his medical license and obtaining future employment. There is no adequate remedy at law to

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prevent Defendant from taking this action, and as such, Dr. Rios seeks a temporary restraining

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order to prevent Defendant from acting on this unlawful course of action.

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27. Following receipt of a Temporary Restraining Order, Dr. Rios requests a hearing and the

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implementation of a temporary injunction to preserve the status quo, and after a trial on the merits
a permanent injunction. Dr. Rios will pay a reasonable bond if necessary to secure a temporary
restraining order.

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Plaintiff’s Second Amended Petition

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 VII. CONCLUSION AND PRAYER
28. Dr. Rios asks this Court to grant the injunctive relief he request, and for Defendant to pay
it damages for the money paid for services described above, that were not rendered, and the
consequential damages that arose from Defendants’ acts.

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29. For the reasons set forth in this Original Petition and Request for Disclosure, Dr. Rios asks
that the Court issue citation for Defendants to appear and answer, and that Dr. Rios be awarded a
judgment against Defendant for the following:

Temporary Restraining Order, Temporary Injunction, and Permanent Injunction;

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Actual damages, including damages for mental anguish even if an injury other than

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a.

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mental anguish is not shown.
Exemplary damages.

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Prejudgment and post judgment interest.

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Court costs.

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Reasonable Attorney fees.

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All other relief to which Plaintiff is entitled.

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c.

Respectfully submitted,
WAGNER & SÁENZ, L.L.P.
By:_/s/ Jeremy D. Saenz____________
Jeremy D. Saenz
State Bar No. 24033028
jsaenz@ws-texaslaw.com
1010 Lamar Street
Suite 425
Houston, Texas 77002
Telephone: (713) 554-8450
Facsimile:
(713) 554-8451
ATTORNEY FOR PLAINTIFF
Tomas G. Rios, M.D.

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Plaintiff’s Second Amended Petition

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 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Plaintiff’s Second Amended
Petition was served, pursuant to Texas Rules of Civil Procedure 21 and 21a, via electronic
service, on this the 9th day of October, 2018 to:

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John P. Scott
Scott, Clawater & Houston, LLP
2727 Allen Parkway, Suite 500
Houston, Texas 77019
Telephone: (713) 650-6600
Facsimile: (713) 650-1720
Email: jscott@schlawyers.com
(Attorneys for Defendants)

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/s/Jeremy Saenz
Jeremy Saenz

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Plaintiff’s Second Amended Petition

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