No. XX-XX-XX-X-CV
IN THE FIRST COURT OF
APPEALS
XXXX X XXX, M.D.,
Appellant,
v.
XXXXX XXXX,
Appellee.
Appealed from
the 61st Judicial District Court of
Harris County,
Texas
Cause No. 2007-XXXXX
The Honorable
John Donovan
BRIEF OF
APPELLANT XXXX X XXX, M.D.
XXXX XXXX
XXXX
B. E. P.
State Bar No.
J.G.M.
State Bar No.
XXXX Weslayan, Suite XXX
Houston, Texas
77027
Telephone: (713) XXX-XXXX
Facsimile: (713) XXX-XXXX
ATTORNEYS FOR APPELLANT
XXXX X XXX, M.D.
ORAL ARGUMENT REQUESTED
XXXX X XXX, M.D.,
Appellant,
V.
XXXX XXXX,
Appellee
B. E. P. K.D.K.
SBN: SBN:
J. G. M. LAW
OFFICE OF K.D.K.
SBT # 00791329 XXX Park, Suite
102
XXXX
XXXX XXXX HOUSTON, TEXAS 77019
XXX WESLAYAN, SUITE XXX (713) 284-XXXX PHONE
HOUSTON, TEXAS 77027 (713) 284-XXXX FACSIMILE
(713) 961-XXXX PHONE
(713) 961-XXXX FACSIMILE
ATTORNEYS FOR APPELLANT ATTORNEYS
FOR APPELLEE
XXXX X XXX, M.D. XXXXX XXXXX
1. Plaintiff’s Original Petition filed
December 28, 2007 (CR 2-5).
2. Defendant’s Motion to Dismiss (CR
38-43).
3. Order denying Defendant’s Motion to
Dismiss (CR 79-80).
CASES
American Transitional Care Ctrs. Of Texas, Inc. v. Palacios, 46
S.W.3d 873, 878 (Tex. 2001) 3
Bowie Memorial Hospital v. Wright, 79 S.W.3d 48, 52 (Tex. 2002)............................................... 1
Cayton v. Moore, 224 S.W.3d 440, 444 (Tex. App.—Dallas 2007, no pet.)................................ 1
De
Checa v. Diagnostic Ctr. Hosp., Inc. 852 S.W.2d 935, 938 n.
5 (Tex. 1993).................. 7,
9
Emeritus
Corp. v. Highsmith, 211 S.W.3d 321 (Tex. App.—San Antonio 2006, no pet. 4, 5, 6, 7, 8, 9, 10
Garcia
v. Marichalar, 185 S.W. 3d 70, 74 (Tex. App.—San Antonio 2005, no pet.)........ 10
Hagedorn
v. Tisdale, 73 S.W.3d 341, 348-349 (Tex. App.—Amarillo 2002, no pet)..7,
9
Herrera
v. Seton NW Hospital, 212 S.W.3d 452, 460 (Tex. App.—Austin 2006, no pet.) 10
Jernigan
v. Langley, 195 S.W.3d 91, 93 (Tex. 2006)................................................................................... 1
Regis
v. Harris County Hospital Dist., 208 S.W.3d 64, 69 (Tex.
App.—Houston [14th Dist.] 2006, no pet.)...................................................................................................................................................................................................... 4
Shaikh v. Plaza Medical Center of Fort Worth, 2007 WL 3208592 Fort Worth (unpublished opinion) 4
Thoyakulathu
v. Brennan, 192 S.W.3d 849, 852 (Tex. App.—Texarkana 2006, no pet.) 10
United
Oil & Minerals, Inc. v. Costilla Energy, Inc., 1
S.W.3d 840, 846 (Tex. App.—Corpus Christi 1999, pet. dism’d).................................................................................................................................................................... 8,
9
Valley
Baptist Medical Center v. Azua, 198 S.W.3d 910, 915 (Tex.
App.—Corpus Christi, no pet). 10
Walker
v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)................................................................................... 1
STATUTES
Tex. Civ. Prac. & Rem. Code § 74.052........................................................................................................... xiv,
5
Tex. Civ. Prac. & Rem. Code § 74.351(b)...................................................... ix,
x, xii, xv, 1, 2, 3, 5, 11
Tex. Civ. Prac. & Rem. Code § 74.351(c).......................................................................................................... 10
Tex. Civ. Prac. & Rem. Code § 74.351(r)(6)...................................................................................................... 2
Tex. Civ. Prac. & Rem. Code 74.051......................................................................................................................... 5
Tex. Civ. Prac. & Rem. Code 74.051(a).................................................................................................................. 4
Tex. Civ. Prac. & Rem. Code 74.052(a)............................................................................................................ 4,
5
Tex. Rev. Civ. Stat. art. 4590i...................................................................................................................................... 3
Tex. Civ. Prac. & Rem. Code § 74.351…………………………………………..……………1, 5, 10, 11
Tex. Civ. Prac. & Rem. Code § 74.351(a)…………………………………………………..…1,
2, 9, 10
Appellee,
XXXX X XXXX (“herein Plaintiff”), sued Appellant, XXXX X XXX, M.D., (herein “Dr.
XXX”), for alleged negligence in connection with claimed injuries he sustained
after he sought medical treatment from Dr. XXX.
Clerk’s Record at 2-5 (herein “CR”), Appendix
1 (herein “Apx”).
Plaintiff filed suit against Dr. XXX on December 28, 200X. CR at 2-5; Apx 1. Prior to filing suit, Plaintiff did not
provide proper notice and a Chapter 74 compliant authorization, failing to
comply with the notice requirements of the Texas Medical Liability Act, (herein
“TMLA”) and on April 3, 2008, Defendant filed a
Verified Motion to Abate and Order requesting that the case be abated until
such time as Plaintiff provided Notice of a Healthcare Liability Claim and a
Chapter 74 compliant authorization. CR
at 21-27. Plaintiff agreed to the Motion
to Abate and the Order was filed on April 9, 2008. The Court signed the Order on the Motion to
Abate on April 17, 2008. CR at 36-37.
The 120 day
deadline for Plaintiff to serve a critical expert report and curriculum vitae
pursuant to Chapter 74 was April 28, 2007.
Plaintiff failed to comply with the requirements of the TMLA by failing
to serve an expert report upon Dr. XXX by April 28, 2007. Accordingly, on May 2, 2008, four (4) days
after the expiration of the 120 day deadline to serve a statutorily compliant
expert report, Dr. XXX filed his Motion to Dismiss pursuant to Texas Civil Practice & Remedies Code §74.351(b),
based upon Plaintiff’s failure to file an expert report and curriculum vitae as
required by the TMLA. CR at 38-43; Apx
2.
On May 23, 2008, the trial court entered an Order
denying Dr. XXX’s Motion to Dismiss. CR
at 79-80; Apx 3. On May 30, 2008, Dr.
XXX filed his Notice of Appeal. CR at
84-85.
Issue I. WHETHER THE TRIAL COURT
ABUSED its discretion in
denying XXXX X XXX, m.d.’s Motion to Dismiss Pursuant to Tex. Civ. Prac. &
Rem. Code §74.351(B). when Plaintiff failed to serve an expert
report AND CURRICULUM VITAE within 120 days of filing suit.
STATEMENT OF FACTS
Plaintiff
first sought medical care from Dr. XXX in January 2006 for an eye exam. Plaintiff treated with Dr. XXX until March
2006, when he was referred to a colleague of Dr. XXX’s. Thereafter, Plaintiff filed a lawsuit on his
own behalf against Dr. XXX in December 2007, alleging that Dr. XXX was
negligent in failing to diagnose wet macular degeneration. CR at 2-5; Apx 1. Although filing suit as a pro se Plaintiff, Plaintiff served
Requests for Disclosure with his Original Petition. Id. Prior to filing suit, Plaintiff did not provide
Dr. XXX with notice of a healthcare liability claim or a Chapter 74 compliant
authorization as required by the TMLA.
Thus, on April 3, 2008 Defendant filed a Verified Motion to Abate and
accompanying Order on the basis that Plaintiff failed to provide the requisite
notice of healthcare liability claim and compliant authorization; and thus,
Defendant could not obtain pertinent medical records needed for the proper
defense of the case. CR at 21-25.
On April 8,
2008, Plaintiff’s counsel, XXXX XXXX, filed a Notice of Appearance on behalf of
Plaintiff. CR at 33-34. That same day, Plaintiff’s counsel
corresponded with Defendant’s counsel by letter agreeing to the abatement sought
by the Defendant. Thus, an Agreed Order on Defendant’s Motion
to Abate was filed on April 9, 2008 and signed by the Court on April 17,
2008. CR at 36-37. Shortly thereafter, on April 28, 2007 the 120
day deadline to serve a statutorily compliant expert report and curriculum
vitae pursuant to Chapter 74 of the Texas Civil Practice & Remedies Code
expired, and Plaintiff failed to serve a statutorily compliant expert report
and curriculum vitae. On May 2, 2008 Dr.
XXX filed his Motion to Dismiss pursuant to Texas Civil
Practice & Remedies Code §74.351(b) based
upon Plaintiff’s failure to timely file and serve an expert report as required
by the TMLA, which was file stamped by the Harris County District Clerk on May
4, 2008. CR at 38-43; Apx. 2. The Motion to Dismiss was supported by an
attorney’s fee affidavit from Dr. XXX’s attorney, B. E. P.. CR at 42-43.
Dr. XXX set Defendant’s Motion to
Dismiss for hearing on May 23, 2008 before the Honorable John Donovan. CR at
46-47. Dr. XXX’s Motion to Dismiss was
filed on the basis that Plaintiff did not serve an expert report and curriculum
vitae on Dr. XXX as required by Chapter 74 of Texas Civil Practice &
Remedies Code. CR at 38-43; Apx. 2. Because Plaintiff failed to serve an expert
report and curriculum vitae upon Dr. XXX within 120 days of filing suit,
dismissal of Plaintiff’s claims against Dr. XXX was mandatory. On May 13, 2008, Plaintiff filed a response
to Defendant’s Motion to Dismiss. CR at
48-62. Plaintiff’s counsel argued in
this response that he did not serve an expert report on behalf of his client
because of his unilateral understanding that the abatement suspended the
proceedings; and thus, his client was not required to file his expert report
and curriculum vitae within 120 days. Id. Plaintiff attached a report from XXXX XXXX, M.D.
to this response. Id.
Dr. XXXX’s curriculum vitae was not
provided.
Defendant
filed a Reply to Plaintiff’s Response to Defendant’s Motion to Dismiss setting
forth that pursuant to Chapter 74 and applicable caselaw, an abatement does not
extend the Chapter 74 expert report/curriculum vitae deadline; and thus,
because Plaintiff missed the 120 day deadline for filing an expert report and
curriculum vitae, the Motion to Dismiss must be granted. CR at 65-74. The Reply was supported by an affidavit of
Defendant’s attorney, B. E. P., which provided evidence to the court that there
was no agreement, written or otherwise, between the parties to extend the 120
day expert report and curriculum vitae deadline. Id. The Reply also set forth that Plaintiff
was not entitled to an extension of the 120 day deadline, as the applicable
statutes do not allow for an extension to serve an expert report and curriculum
vitae when the plaintiff completely fails to timely serve an expert report and
curriculum vitae. Id.
On May 23, 2008 a hearing was held on Defendant’s Motion to Dismiss, at
which time the trial court denied Defendant’s Motion to Dismiss. CR at 79-80.
Plaintiff’s cause of action against Dr. XXX is a
healthcare liability claim in which he alleges negligence in failing to
diagnose wet macular degeneration.
Accordingly, as in all healthcare liability claims, Plaintiff was
required to serve Dr. XXX with a statutorily compliant expert report and
curriculum vitae within 120 days of filing suit. The case was abated pursuant to Texas Civil
Practice and Remedies Code §74.052, as Plaintiff did not
provide the statutorily required notice or medical authorization. Notwithstanding this, there was no agreement
to extend any deadlines in this case.
Thus, the fact that the case was abated in accordance with Chapter 74
had no bearing on the 120 day expert report/curriculum vitae deadline or the
Plaintiff’s ability to serve Dr. XXX’s counsel with a statutorily compliant
expert report and curriculum vitae. When
Plaintiff failed to serve Dr. XXX with a statutorily compliant expert report and
curriculum vitae within 120 days of filing suit, dismissal of Plaintiff’s
claims against Dr. XXX became mandatory.
No
action was required of the trial court with respect to the Chapter 74 report
deadline, and the abatement of Plaintiff’s claims against Dr. XXX did not
prevent Plaintiff from serving Dr. XXX’s counsel with an expert report and
curriculum vitae. Chapter 74 does not
give the court discretion to deny a Motion to Dismiss based on a failure to
file an expert report. Further, when a
Plaintiff fails to serve an expert report and curriculum vitae within 120 days
of filing suit, the Court cannot
grant an extension absent an agreement between the parties to extend the 120
day deadline. Accordingly, the trial
court was required to dismiss Plaintiff’s claims against Dr. XXX with prejudice
and award attorney’s fees when Plaintiff failed to serve Dr. XXX with an expert
report and curriculum vitae within 120 days of filing suit. Thus, dismissal of Plaintiff’s case against Dr.
XXX is required as the TMLA mandates
dismissal of Plaintiff’s cause of action against Dr. XXX for failing to comply
with the 120 day expert report/curriculum vitae requirement. Tex.
Civ. Prac. & Rem. Code §74.351(b). As
such, the trial court abused its discretion by failing to dismiss Plaintiff’s
claims with prejudice.
An appellate court
reviews a trial court’s denial of a motion to dismiss pursuant to Section
74.351 of the TMLA under an abuse of discretion
standard. See Jernigan v. Langley,
195 S.W.3d 91, 93 (Tex.
2006) (per curiam) (discussing the MLIIA); Cayton v. Moore, 224 S.W.3d 440, 444
(Tex. App.—Dallas 2007, no pet.). A trial court abuses its discretion if it
acts in an arbitrary or unreasonable manner without reference to guiding rules
or principles. Bowie Memorial
Hospital v. Wright, 79 S.W.3d 48,
52 (Tex.
2002). A trial
court also abuses its discretion if it fails to analyze or apply the law
correctly. The trial court has no
discretion in determining what the law is or in applying the law to the
facts. See Walker
v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A clear failure by the
trial court to apply the law correctly constitutes an abuse of discretion. Id.
Texas
Civil Practice and Remedies Code §74.351 requires a plaintiff in a healthcare
liability claim to serve a critical expert report on each defendant within 120
days of filing suit. Specifically, Section
74.351(a) states:
(a) In a health care liability claim, a claimant shall, not
later than the 120th day after the date the claim was filed, serve
on each party or the party’s attorney one or more expert reports, with
curriculum vitae of each expert listed in the report for each physician or
health care provider against whom a liability claim is asserted. The date for serving the report may be
extended by written agreement of the affected parties. Each defendant physician
or health care provider whose conduct is implicated in a report must file and
serve any objection to the sufficiency of the report not later than the 21st
day after the date it was served, failing which all objections are waived.
Tex.
Civ. Prac. & Rem.
Code §74.351(a). An "expert report" is "a
written report by an expert that provides a fair summary of the expert's
opinions as of the date of the 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."
Id.
at §74.351(r)(6).
Texas law is clear that if an expert report
has not been served within the 120 day post-filing deadline, the
claim against that defendant must be dismissed with prejudice and
costs and attorney fees awarded to that defendant. Tex.
Civ. Prac. & Rem. Code § 74.351(b). (Emphasis added.) Texas Civil
Practice and Remedies Code §74.351(b) requires the court to dismiss
the Plaintiff’s claim with prejudice and to award reasonable attorneys fees and
costs of court if the requisite expert report and curriculum vitae is not
timely served. Specifically, §74.351(b) states:
(b) If, as to a defendant physician or health care provider,
an expert report has not been served within the period specified by Subsection
(a), the court, on the motion of the affected physician or health care
provider, shall, subject to Subsection (c), enter an order that:
(1) awards to the affected physician or health care provider
reasonable attorney’s fees and costs of court incurred by the physician or
health care provider; and,
(2) dismisses the claim with respect to the physician or
health care provider, with prejudice to the refiling of the claim.
Tex.
Civ. Prac. & Rem.
Code §74.351(b). (Emphasis added.)
The use of the word
“shall” has been held to require the trial court to dismiss with
prejudice on the motion of the defendant when the statutory period has passed
without a proper report being filed. American Transitional Care
Ctrs. Of Texas, Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001)(discussing dismissal
requirements for language of Chapter 74’s predecessor Tex. Rev. Civ. Stat. art. 4590i)(Emphasis added.) A plaintiff is required to serve an expert report
which implicates each defendant within 120 days of filing the lawsuit. In this case, no report was filed; and thus,
the Plaintiff’s claims must be dismissed.
Tex. Civ.
Prac. & Rem. Code
§74.351(b)
This suit was filed by the Plaintiff
against Dr. XXX on December 28, 2007.
CR. at 2-5; Apx 1. The one
hundred twenty day (120) deadline by which the Plaintiff had to provide a
curriculum vitae and expert report which complied with the statutory requisites
expired on April 28, 2008. Plaintiff
served no report or curriculum vitae upon Dr. XXX within 120 days of filing
suit; and thus, because Plaintiff failed to serve Dr. XXX with an expert report
and curriculum vitae, following the expiration of the one hundred twenty (120)
day deadline, Dr. XXX filed a Motion to Dismiss. CR at 38-43; Apx 2. Because Plaintiff failed to timely serve an
expert report and curriculum vitae, the trial court had no discretion but to
dismiss Plaintiff’s claims against Dr. XXX with prejudice and award attorney’s
fees as prescribed by Chapter 74. This
action by the trial court was mandatory pursuant to statute, and therefore the
trial court acted unreasonable and without reference to guiding rules or
principles in denying Dr. XXX’s Motion to Dismiss. The trial court’s failure to dismiss
Plaintiff’s claims with prejudice constituted an abuse of discretion.
The
abatement of this case so that Plaintiff could provide the statutorily required
notice and authorization does not extend the Chapter 74 expert report
deadline. Tex. Civ. Prac. & Rem. Code §
74.052(a) states that a Plaintiff’s failure to provide proper authorization for
release of medical information shall abate all further proceedings against the
physician receiving the notice until 60 days following receipt by the physician
of the required authorization. Tex. Civ. Prac. & Rem. Code 74.052(a). An agreement to abate a case to permit a
plaintiff to comply with the notice requirement of Chapter 74 does not toll or
extend the 120 day deadline for serving an expert report. See Emeritus Corp. v. Highsmith, 211 S.W.3d 321 (Tex.
App.—San Antonio 2006, no pet.)(holding agreed
abatement to allow Plaintiff to comply with 60 day notice of §74.051(a) did not extend the 120 day deadline or
constitute an agreement of the parties to extend); See also, Regis v. Harris County Hospital Dist., 208 S.W.3d 64, 69 (Tex. App.—Houston [14th
Dist.] 2006, no pet.) (an
abatement of the proceedings under section 74.052(a) does not toll or extend the 120-day period for
filing an expert report); See also Shaikh v. Plaza Medical Center of Fort Worth, 2007 WL 3208592 Fort Worth (unpublished opinion)(abatement does not relieve a health care liability plaintiff from
obligation to serve an expert report 120 days after filing claim).
In Emeritus,
the Plaintiff filed suit against an assisted living facility and its owner
corporation, Emeritus, for negligence, gross negligence and malice, premises
liability, breach of contract, fraud and breach of the Patient’s bill of
rights. Emeritus, 211 S.W.3d at
324. Shortly after suit
was filed, the Plaintiff provided the statutorily required notice of a
healthcare liability claim without an authorization. Id. Emeritus answered and because it had not
received the sixty day pre-suit notice mandated by statute, moved to
abate. Id.
The trial court signed an order abating the case until 60 days from the
date Emeritus received notice under Section 74.051 of the Texas Civil Practice
& Remedies Code and the authorization required by §74.052. Thereafter, the
Plaintiff sent a second notice along with a statutorily required
authorization. Id.
When the
Plaintiff failed to provide an expert report within 120 days of filing suit, Emeritus
moved to dismiss the lawsuit with prejudice pursuant to §74.351(b) of the Texas Civil Practice & Remedies
Code. In response, the Plaintiff argued
that her claims were not healthcare liability claims; and, to the extent they
were, the expert witness deadline had not expired because the case was abated
for sixty (60) days. The Plaintiff
further argued that the defendant, by agreeing to abate the case, agreed to
extend the deadline for serving an expert report. Id. at 324-325. In the alternative, the Plaintiff sought an
extension of time in which to file her expert report pursuant to §74.351. The trial court
denied the motion to dismiss on the grounds that an agreement was reached to
enter an order abating all proceedings for (60) sixty days and granted
Plaintiff a thirty (30) day extension in which to file an expert report. Id.
On appeal, Emeritus argued that the trial
court erred in denying its’ Motion to Dismiss because the Plaintiff failed to
timely serve an expert report. Id. at 326. The Plaintiff argued first, that the parties’
agreement to abate the case extended the deadline for serving her expert
report; and second, that the trial court’s order abating the case had the legal
effect of extending the deadline. Id.
at 328. The Court of Appeals agreed with Emeritus’
argument, reversing the trial court’s order denying Defendant’s Motion to
Dismiss and dismissed the Plaintiff’s claims with prejudice. Id. at 330. Addressing the issue of whether there was
an agreement to extend the 120 deadline for serving an expert report, the Court
relied upon the order on the abatement which simply stated the case was
“abated,” that there was no evidence of what the attorneys meant by this phrase
and that there was no evidence that the parties agreed to extend the deadline
for serving the report. Id.
at 329. The Court of Appeals
therefore held that “the agreement to abate the case was simply that: an
agreement to ‘abate the case’ for sixty days.”
Id. The only evidence that alluded to an
agreement to extend was the affidavit of the Plaintiff’s attorney in which she
stated that it was her understanding that the agreement included the suspension
of all matters including the suspension of any deadlines to file a an expert
report. In holding that there was no
agreement to extend the deadline for serving an expert report, the court
reasoned that a unilateral understanding is not an agreement. Id.
The Emeritus Court next turned to the
legal question of whether an abatement extends the deadline for serving an
expert report. Id. Relying upon the Amarillo Court of Appeals’
reasoning in Hagedorn v. Tisdale, 73 S.W.3d 341, 348-349 (Tex.
App.—Amarillo 2002, no pet), the court opined that
a Plaintiff should not be rewarded with additional time for the filing of an
expert report by his failure to comply with the statutory notice requirement;
and that if this were the case, a healthcare provider would be put in a
position of having to choose whether to seek an abatement for the failure of
the plaintiff to give the statutorily required 60 day notice or to hold the
plaintiff to the statutorily required deadline for serving the expert
report. Emeritus, 211 S.W. 3d at 329. Also relying on Hagedorn,
the Court further opined as follows:
We
cannot believe that the intent of the legislature to discourage frivolous
lawsuits and encourage settlement of claims would be served by such a construction since the legislature
has determined that failing to timely file an expert reports means that the
claim is either frivolous or at best has been prematurely brought.
Id. at 329-330 citing Hagedorn,
73 S.W.3d at 348. Again relying on the
rationale in Hagedorn, the Emeritus Court opined that in light of
the plaintiff’s prerogative ‘to some extent’ to choose when to file suit and
then existing means for obtaining an extension of the deadline, it “failed to
see how the claimant is damaged by being required to adhere to the statutory
requirement.” Id. at 330 citing Hagedorn,
73 S.W.3d at 348. The Court of
Appeals in Emeritus also opined that
the Hagedorn holding is not
inconsistent with the law of abatement generally, as an abatement does not
necessarily stay all proceedings. Id.; See also De Checa v. Diagnostic Ctr. Hosp., Inc. 852 S.W.2d 935, 938 n. 5 (Tex. 1993)(noting that plaintiff remains free during an abatement to
join additional defendants); See also, United Oil & Minerals, Inc. v. Costilla Energy, Inc., 1 S.W.3d 840, 846 (Tex. App.—Corpus Christi 1999, pet.
dism’d)(holding abatement did not preclude plaintiff from settling
and voluntarily dismissing or non-suiting claim). Ultimately, the Emeritus Court
held that an agreement to abate a case to permit a plaintiff to comply with the
sixty-day notice requirement does not
extend the time for serving an expert report. Id. at 330. (Emphasis added.)
The Emeritus holding is applicable to the
present case. The abatement in this case
for Plaintiff to provide proper notice and an authorization to Dr. XXX pursuant
to Chapter 74, was merely that: an abatement for Plaintiff to provide notice
and a Chapter 74 compliant authorization, so that Defendant could obtain
pertinent medical records needed for the proper defense. CR. at 36-37.
The parties did not have an agreement parties to extend the Chapter 74
deadline. CR. at 73-74. Further, the parties in this case had no
discussion of extending any deadlines in the case. Id.
The fact that
Plaintiff’s counsel supposedly misconstrued the order did not extend the
Chapter 74 report deadline. The Chapter
74 caselaw is clear, the abatement of a case, whether by the Court upon motion
of a healthcare provider or by agreement, does not extend the mandatory 120 day
deadline established by Chapter 74 of the Texas Civil Practice & Remedies
Code. Plaintiff’s counsel’s alleged
unilateral understanding to the contrary was not an agreement to extend this
deadline. See Emeritus, 211 S.W.
3d at 329. Thus, the abatement in this case did not toll
or extend the 120 day deadline in which Plaintiff was to serve Dr. XXX with an
expert report and curriculum vitae.
Plaintiff should thus, not be rewarded with extra time to serve a
Chapter 74 compliant expert report and curriculum vitae when Plaintiff failed
to comply with the requirements of Chapter 74 to begin with. See
Hagedorn, 73 S.W.3d 341; see also
Emeritus, 211 S.W.3d 321.
An abatement does not prevent all actions in a suit. A Plaintiff remains free during an abatement
to join additional defendants. See De
Checa, 852 S.W.2d at 938, n. 5. A Plaintiff can
voluntarily dismiss or nonsuit a claim during an abatement. See
also, United Oil & Minerals, Inc.,
1 S.W.3d 840. Certainly,
if a Plaintiff can join parties during an abatement, he can also serve a party with a document. (Emphasis added.) Further, nothing in the abatement order in
this case precluded Plaintiff’s counsel from serving a Chapter 74 compliant
expert report and curriculum vitae.
Further, Chapter 74 report deadline does not require any action by the
Court. Certainly, if a Plaintiff can
join additional defendants during an abatement, which requires a plaintiff to
file an amended petition and serve new parties with a lawsuit, there is no
reason a plaintiff cannot serve a party with an expert report and curriculum
vitae during an abatement. Further
still, there was no agreement between the Plaintiff and Defendant which
prevented Plaintiff from serving an expert report and curriculum vitae and no
agreement to extend the 120 day deadline.
The abatement of this case in order for Plaintiff to comply with the
notice requirements of Chapter 74 did not prevent or restrict Plaintiff from serving an expert report and curriculum vitae in compliance with Texas Civil Practice & Remedies Code §74.351(a) which requires
Plaintiff to serve on each party or their attorney, an expert report and curriculum
vitae within 120 days of filing suit. Tex. Civ. Prac. & Rem. Code
§74.351(a)(Emphasis added.)
The trial court is not permitted to grant an
extension to file a Chapter 74 report when an initial report is not timely
filed. The only purpose for which a
trial court is authorized to grant an extension under Chapter 74 is to cure a
deficiency in a report which has been timely served. Tex.
Civ. Prac. & Rem. Code §74.351(c).
Regardless of the circumstances, when no expert report is served within 120 days
of filing the claim, a trial court has no authority to grant an extension. Garcia v. Marichalar, 185 S.W. 3d 70,
74 (Tex. App.—San Antonio 2005, no pet.); see also Emeritus, 211
S.W.3d at 326 (section
74.351 simply
does not authorize a court ordered extension for any reason other than to cure
a deficient report). If a plaintiff does
not timely file an expert report, the trial court has no discretion to do
anything other than to dismiss the case.
See Valley Baptist
Medical Center
v. Azua, 198 S.W.3d 910, 915 (Tex. App.—Corpus Christi, no pet).); Herrera v. Seton NW Hospital, 212 S.W.3d 452, 460
(Tex. App.—Austin 2006, no pet.)(noting that plaintiff’s failure to timely file and expert
report divested the district court of discretion to do anything but dismiss); Thoyakulathu
v. Brennan, 192 S.W.3d 849, 852 (Tex. App.—Texarkana 2006, no pet.) (absent an agreement among the parties to extend the time to
serve expert reports, the trial court has no discretion but to dismiss the case
with prejudice).
In this
case, Plaintiff conceded that he did not serve Defendant with a Chapter 74
report and curriculum vitae within 120 days of filing suit. CR. at 48-62.
Thus, according to the caselaw governing Chapter 74, Plaintiff is not
entitled to an extension of time in which to file an expert report and
curriculum vitae and Plaintiff’s claims against Dr. XXX must be dismissed with
prejudice and attorney’s fees awarded.
The trial court abused its discretion in denying
Dr. XXX’s Motion to Dismiss as Plaintiff failed to serve Dr. XXX with an expert
report and curriculum vitae within 120 days of filing suit. Texas Civil Practice & Remedies Code
§74.351 required the trial
court to dismiss this case with prejudice and award reasonable attorney’s
fees. The trial court abused its
discretion in failing to do so.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant, XXXX
X XXX, M.D., prays that upon review of the facts of this case and the
applicable caselaw, this Honorable Court will reverse the trial court’s order,
rule that the trial court abused its discretion in denying XXXX X XXX, M.D.’s
Motion to Dismiss pursuant to Tex. Civ.
Prac. & Rem. Code §74.351(b),
render judgment that Plaintiff’s cause of action is dismissed with prejudice
for the failure to comply with Section 74.351 of the Texas Civil Practice &
Remedies Code and award attorney’s
fees. Dr. XXX further prays that this
court will tax attorney’s fees and costs of court against Plaintiff, and for
such other and further relief to which Appellant may show himself to be justly
entitled.
Respectfully
submitted,
XXXX XXXX
XXXX
By:________________________
J. G.M.
SBN:
B.
E. P.
SBN:
XXXX
Weslayan, Suite 300
Houston, Texas
77027
(713)
961-XXXX Telephone
(713)
961-XXXX Facsimile
ATTORNEYS FOR APPELLANT,
XXXX X XXX, M.D.
XXXX
XXXX
XXXX
Allen Parkway, Suite 102
Houston, 77019
B.
E. P.