DEFENDANTS’ ORIGINAL  COUNTERCLAIMS

TO THE HONORABLE JUDGE OF SAID COURT:

            Defendants/counter-plaintiffs Harry A. Harrison and Dottie Harrison file these Original Counterclaims against plaintiffs Dr. Mark Nichols and Mark Lynn Nichols, M.D., P.A., seeking the relief and affirmative relief outlined below. Subject to and without waiving defendants’ Motion for Summary Judgment, defendants/counter-plaintiffs Harry A. Harrison and Dottie Harrison assert the following claims against plaintiff/counter-defendant Dr. Mark Nichols and Mark Lynn Nichols, M.D., P.A. The counterclaims presented herein are compulsory pursuant to T.R.C.P. Rule 97, because the counterclaims arise out of the transactions or occurrences that are the subject matter of plaintiffs claim and do not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. The claims and counterclaims arise out of the same series of events related thereto. Because that is so, the evidence for the claims and counterclaims is largely the same. Therefore, the considerations of judicial economy and fairness dictate that all issues be resolved in one suit.

I.   PARTIES

    1.     Defendants/counter-plaintiffs Harry and Dottie Harrison are natural persons residing in Brazoria, County, Texas.

    2.     Plaintiff/counter-defendant Dr. Mark Nichols, is a natural person residing in Harris County, Texas. Plaintiff/counter-defendant has previously appeared in this lawsuit.

    3.     Plaintiff/counter-defendant Mark Lynn Nichols, M.D., P.A., claims to be a professional association formed pursuant to Art. 1528f of the Texas Revised Civil Statues (Vernon 2001). Plaintiff/counter-defendant has previously appeared in this lawsuit.

II.   JURISDICTION AND VENUE

            4.     The amount in controversy this cause, exclusive of interest and costs, exceeds the minimum jurisdictional limits of this Court, and the damages sought are within the jurisdictional limits of this Court. Venue is proper in Harris County, Texas because all or part of the causes of action accrued in Harris County, Texas.

III.   DISCOVERY

            5.     Defendants/counter-plaintiffs intend to conduct Level II discovery pursuant to Rule 190 of the Texas Rules of Civil Procedure.

IV.   CONDITIONS PRECEDENT

            6.     All conditions precedent to the filing of these counterclaims have been expressly complied with.

V.   FACTS

7.    On April 18, 2001, Dr. Mark Nichols performed surgery on Harry Harrison.  Mr. Harrison had a COBRA policy at the time of surgery. Harry and Dottie Harrison had recently married (January 1, 2001). Dottie Harrison intended to include Harry on her health insurance policy that she had obtained in 1993. Based on common knowledge and general social understanding, the Harrisons inferred that Dottie Harrison’s existing policy would be superior and less expensive than new policies available to Mr. Harrison today. Dottie Harrison’s policy with World Insurance has a $1,000 deductible, 90/10 coverage with an approved doctor or hospital (80/20 coverage otherwise), and a $10 co-pay for prescriptions (either generic or brand name) with no deductible for prescriptions. At that time (at age 60), Dottie Harrison’s monthly premium was $180.39.

8.         Both Dottie and Harry Harrison are extremely healthy, and they were dumbfounded when World Insurance denied Mr. Harrison’s application.  After several appeals, even including a letter from Mr. Harrison’s  primary care physician stating that Mr. Harrison is in excellent physical condition and presents no increased health risks, World insurance still denied Mr. Harrison’s application.

9.         After spending several months in unsuccessful attempts to put Mr. Harrison on Dottie Harrison’s health insurance policy with World Insurance, they were desperate because Mr. Harrison’s COBRA policy was nearing expiration and they knew that being uninsured for even a single day makes it even more difficult to obtain a policy. The Harrison’s  began working with an insurance agent, Trina Boudreaux, who said that if Mr. Harrison was turned down for a second policy, his only alternative would likely be the Texas Risk Pool.  Current rates today in the Texas Risk Pool for a nonsmoking male of Harry Harrison’s current age of 59 with a $1,000 deductible in our area 5 are $664.00 per month. (See web site at http://www.txhealthpool.com/ rates.html.) Ms. Boudreaux advised  the Harrisons to obtain all of Mr. Harrison’s medical records and examine them for errors.

 10.         After they received all of Mr. Harrison’s records, Harry and Dottie Harrison immediately knew what the problem had been: it was the medical records of Dr. Mark Nichols. Dr. Nichols’ medical records on Harry Harrison were misleading, inaccurate in instances that were very damaging in Mr. Harrison’s ability to obtain health insurance, and even incomplete. Although Dr. Nichols had released Harry Harrison subsequent to surgery, the last page of Dr. Nichols’ records stated, “…we will continue to see him on a periodic basis in the future until he completely heals.” This statement would lead insurance underwriters to infer that Mr. Harrison was still under Dr. Nichols’ care, and leaving the underwriters with the question of whether or not additional surgery might be required for Mr. Harrison.

11.       After explaining the problem to Dr. Nichols, Dr. Nichols responded with refusal, and in her opinion,  arrogant refusal to Dottie Harrison’s initial polite requests to correct his medical records. In March of 2002, Dottie Harrison put the story in the section of her consumer-oriented web site called, “Consumer Alert.” (http://dottie.clickhere2.net/Service.html)  Dottie Harrison cautioned about problems that doctors’ records could cause in one’s ability to obtain health insurance and long-term care insurance,  and told the truthful story of why Harry Harrison had been denied coverage with World Insurance. Later, on July 11, 2002, Dottie Harrison wrote letters of complaint to Dr. Nichols’ licensing board  and to organizations of which Dr. Nichols claimed to be a member which Dr. Nichols listed on his web site. Dr. Nichols knew about Dottie Harrison’s web page since March, but it was only after Dottie Harrison’s July 11, 2002 letters of complaint that Dr. Nichols immediately responded by filing a lawsuit on July 23, 2002 against Harry and Dottie Harrison for libel, slander, and business disparagement. Dr. Mark Nichols was the only plaintiff in the original lawsuit, but an Amended Petition added Mark Lynn Nichols, M.D., P.A., which was purported to be a professional association.

12.       After filing the lawsuit against Harry and Dottie Harrison, Dr. Nichols gave to his attorney, Robert J. Killeen, Jr., a portion of Harry Harrison’s medical record without permission of Harry Harrison. Such medical record was attached as Exhibit A to plaintiffs’ Requests for Admissions to Defendant Harry Harrison. In addition, said document appears to have been altered while not in the possession of Harry Harrison.         VI.   COUNTERCLAIM CAUSES OF ACTION, including but not limited to:

(To summarize, the subject matter of the counterclaims herein below is stated in the following bulleted list.)

        ·       Breach of fiduciary duty regarding physician-patient privilege – (A)

        ·       Breach of fiduciary duty regarding medical records – (B)

        ·       Fraud –  (C)

        ·       Constructive Fraud – (D)

        ·       Negligent and intentional infliction of emotional distress – (E)

A.   BREACH OF FIDUCIARY DUTY, PHYSICIAN-PATIENT PRIVILEGE 

13.            Defendants/counter-plaintiffs incorporate herein by reference each of the factual paragraphs stated above.

14.       The relationship between the parties was such to be recognized as fiduciary in nature under Texas law. As a result, plaintiffs/counter-defendants owed fiduciary duties to defendant/counter-plaintiff Harry Harrison, including the duties of utmost good faith and candor, fair dealing, scrupulous honesty, professional and accurate keeping of medical records, and the duty to maintain the confidentiality of the physician-patient relationship.

15.            Unauthorized release of medical information:  Plaintiffs/counter-defendants Dr. Mark Nichols and Mark Lynn Nichols, M.D., P.A negligently and maliciously breached their fiduciary duty and their physician-patient duty to defendant/counter-plaintiff Harry Harrison by their unauthorized release of Harry Harrison’s medical record to Robert J. Killeen, Jr., plaintiffs/counter-defendants’ attorney. Said record was attached as Exhibit A to plaintiffs’ Requests for Admissions to defendant Harry A. Harrison.

16.       The breach caused severe emotional distress to defendants/counter-plaintiffs.

17.            Generally, physician-patient relationship is considered to be confidential relationship and communications connected therewith are not entitled to be discussed with third parties other than those actually present at time of consultation or examination. Texas R. Evid. Rule 509.

18.       Texas Occupations Code § 159.009 states that (a) A person aggrieved by a violation of this chapter relating to the unauthorized release of confidential and privileged communications may petition the district court for appropriate injunctive relief. The petition takes precedence over all civil matters on the docketed court except those matters to which equal precedence of the docket is granted by law. (b) The aggrieved person may prove a cause of action for civil damages.

19.            Defendants/counter-plaintiffs intend to file a Motion for Severance with this Court to sever this claim referenced in paragraphs 14, 15, 16, 17,  and 18 from the remainder of the claims because this matter takes precedence over all civil matters on the docketed court except those matters to which equal precedence of the docket is granted by law. In their motion, defendants/counter-plaintiffs will ask the court to review the above referenced document in camera, and grant injunctive relief, appropriate sanctions, and damages as will be plead in the Motion.

B.   BREACH OF FIDUCIARY DUTY

20..            Defendants/counter-plaintiffs incorporate herein by reference each of the factual paragraphs stated above.

21.      The relationship between the parties was such to be recognized as fiduciary in nature under Texas law. As a result, plaintiffs/counter-defendants owed fiduciary duties to defendant/counter-plaintiff Harry Harrison, including the duties of utmost good faith and candor,  fair dealing, scrupulous honesty, and professional, accurate keeping of medical records, and the duty to maintain the confidentiality of the physician-patient relationship.

22.            Interference with ability to obtain health insurance - Plaintiffs/counter-defendants Dr. Mark Nichols and Mark Lynn Nichols, M.D., P.A negligently and maliciously breached their fiduciary duty to defendant/counter-plaintiff Harry Harrison by their willful failure to write and maintain clearly written and complete medical records on defendant/counter-plaintiff, thus causing Mr. Harrison to be denied health insurance by World Insurance. Said actions of plaintiffs/counter-defendants have injured defendants/counter-plaintiffs in the form of damages plead herein, including pecuniary damages..

C.   FRAUD

23.            Defendants/counter-plaintiffs incorporate herein by reference each of the factual paragraphs stated above.

24.            Common law fraud includes actual fraud, which involves dishonesty of purpose or intent to deceive, and constructive fraud, which is breach of some legal or equitable duty  Bank One,  Texas, N.A. v. Stewart 967 S.W.2d 419, Tex.App.-Hous. (14 Dist.),1998.

25.       It is the belief of defendants/counter-plaintiffs that Harry Harrison did not circle the word “alcoholism” on the form referenced in paragraph 15 above. It is the belief of defendants/counter-plaintiffs that said form was altered while not in the possession of Harry Harrison for intent to deceive. Defendants/counter-plaintiffs request that the Court review this document in camera and allow defendants/counter-plaintiffs to demonstrate to this Court the reasons why they allege said form was altered while not in the possession of Harry Harrison.

26.       This act believed to be fraudulent resulted in damages as plead herein.

D.   CONSTRUCTIVE FRAUD

26.            Defendants/counter-plaintiffs incorporate herein by reference each of the factual paragraphs stated above.

27.       If the relationship between the parties is a fiduciary one, as a matter of fact or law, the law imputes to the relationship additional and higher duties, and their breach may constitute a fraud as well. A fiduciary exists where special confidence is placed in another who, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one placing confidence. Constructive fraud exists when a breach of a legal or equitable duty occurs that has a tendency to deceive others and violate their confidence.

28.            Defendants/counter-plaintiffs justifiably relied upon plaintiffs/counter-defendants to perform their fiduciary duty and keep accurate, clear, and complete medical records on defendant/counter-plaintiff Harry Harrison. In fact, Harry Harrison was not in a position to know about the misrepresentations and omissions in the medical records kept on Mr. Harrison by Dr. Nichols.

29.       In making the misrepresentations and omissions and omitting the pertinent facts in Dr. Nichols’ medical records on Harry Harrison, plaintiffs/counter-defendants acted so as to abuse the trust and confidence reposed in them by Harry and Dottie Harrison.

30.            Defendants/counter-plaintiffs Harry and Dottie Harrison were damaged as a result of plaintiffs/counter-defendants’ that caused Mr. Harrison to be denied health insurance by World Insurance, and were caused the form of damages as plead herein, including pecuniary damages..

E.   NEGLIGENT AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

31.            Defendants/counter-plaintiffs incorporate herein by reference each of the factual paragraphs stated above.

32.       There are four elements of cause of action for intentional infliction of severe emotional distress: that defendant acted intentionally or recklessly; that conduct was extreme and outrageous; that actions of defendant caused plaintiff emotional distress; and that the emotional distress suffered by plaintiff was severe. While the elements of outrageous conduct and severe distress are separate elements of the tort of intentional infliction of severe emotional distress, the two are related, and in some cases extreme and outrageous character of defendant's conduct is in itself important evidence that distress has existed.

33.            Defendants/counter-plaintiffs Harry and Dottie Harrison suffered several months of emotional distress while Mr. Harrison was repeatedly denied health insurance by World Insurance, unbeknownst to Harry and Dottie Harrison that the denials by World Insurance, and the Harrison’s  puzzlement and frustration due to the denials, was caused by the misleading, incorrect, and incomplete medical records of plaintiff/counter-defendant Dr. Mark Nichols on Mr. Harrison.

34.       When Harry and Dottie Harrison finally did discover that the denials by World Insurance  to Mr. Harrison were caused by Dr. Nichols medical records on Harry Harrison,  the harm had already been done as far as World Insurance and the situation was irrevocable.

35.            Elemental to causes of action such as negligence, gross negligence, intentional infliction of emotional distress, and constructive fraud is the existence of a duty, arising independent of any contract or contractual theory, which has been breached; that is, to assert a viable cause of action the plaintiffs must allege that defendant breached a legally cognizable duty imposed upon him via general principles of law as opposed to a contract. Meyer v. Shelley, 34 S.W. 3d 619, Tex. App. Amarillo, 2000.

36.       As shown time after time in the factual paragraphs above,  plaintiffs/counter-defendants breached legally cognizable duties. When Harry and Dottie Harrison finally discovered this breach of duty, Dottie Harrison informed Dr. Nichols of how Dr. Nichols’ medical records on Harry Harrison were inaccurate, incomplete, and misleading and had caused Mr. Harrison to be denied health insurance with World Insurance. The fact that Dottie Harrison’s initial polite requests to Dr. Nichols to make said records correct were met with intentional arrogant refusal by Dr. Nichols was an even greater magnitude of outrageous conduct by plaintiffs/counter-defendants. Said continued outrageous, malicious conduct of Dr. Nichols exacerbated the emotional distress to defendants/counter-plaintiffs Harry and Dottie Harrison even more.

37.            Plaintiffs/counter-defendants’ intentional infliction of emotional distress caused damages to defendants/counter-plaintiffs Harry and Dottie Harrison as plead herein.

VII.   DAMAGES

38.            Defendants/counter-plaintiffs incorporate by reference the factual allegations contained in the preceding paragraphs.

39.       As a result of plaintiffs/counter-defendants breach of fiduciary duties, defendants/counter-plaintiffs suffered actual and consequential damages, including compensatory damages for pecuniary loss, and therefore are entitled to and seek damages in an amount not less than the minimum jurisdictional limit of this Court.

40.            Furthermore, as a result of plaintiffs/counter-defendants’ fraud, malice, outrageous conduct, and wrongful acts of commission and omission, defendants/counter-plaintiffs are entitled to exemplary damages, and herein seek exemplary damages of the maximum amount permitted by law under the Texas Civil Practice & Remedies Code, § 41, and within the jurisdictional limits of this Court.

41.            Defendants/counter-plaintiffs are entitled to and seek to recover fees and costs associated with prosecuting these counterclaims.

VIII.  PRAYER

            Accordingly, defendants/counter-plaintiffs Harry and Dottie Harrison respectfully pray that, upon final disposition of this cause, plaintiffs take nothing by reason of plaintiffs’ allegations against defendants/counter-plaintiffs and that defendants/counter-plaintiffs recover from plaintiffs/counter-defendants:

        1.         Damages in an amount of not less than the minimum jurisdictional limit of this Court;

        2.         Exemplary and punitive damages in an amount not less than the minimum jurisdictional limit of this Court;

        3.         Pre-judgment interest, when applicable, at the maximum rate of interest permitted by law.

        4.         Post-judgment interest, when applicable, at the legal rate;

        5.         Costs of suit;

        6.         Injunction relief in the form of having plaintiff/counter-defendant Dr. Mark Nichols correct his medical records on Harry Harrison; and for attorney Robert J. Killeen, Jr. to return said privileged document referenced in paragraph 15 above.

        7.         Such other relief to which the defendants/counter-plaintiffs may be entitled, included but not limited to reimbursement for the costs incurred by defendants/counter plaintiffs in responding to and defending the allegations raised against them in plaintiffs’ Original and Amended Petitions.

                                                                        Respectfully submitted,

                                                                         Harry A. Harrison, defendant pro se

                                                                         Dottie Harrison, defendant pro se

                                                VERIFICATION

STATE OF TEXAS

COUNTY OF BRAZORIA

            BEFORE ME, the undersigned authority, on this day personally appeared Harry A. Harrison and Dottie Harrison, and after being duly sworn, stated under oath that they are the defendants/counter-plaintiffs in this cause; that they are legally competent to make this Verification; that they have read the above Original Counterclaims; and that every statement contained in Paragraphs 1 through 41 is within their personal knowledge and is true and correct.

                                                                                    Harry A. Harrison, Affiant

                                                                                    Dottie Harrison, Affiant

Subscribed and sworn to before me on                                       , 2003.                            

                                                               Notary Public in and for the State of Texas

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