Alinea Family Hospice Care LLC D/B/A Alinea Family Hospice Care, Donna Junkersfeld and Karla Gamble v. Peggy Goldsmith, Individually and on Behalf of the Estate of Ruth N. Massey
12-15-00061-CV
| Tex. App. | Apr 13, 2015Background
- Medical negligence action against Alinea and two nurses; Goldsmith served Chapter 74 expert reports on Feb. 5, 2014; trial court sustained objections May 27, 2014 and gave 30 days to cure; Goldsmith served amended report July 22, 2014; motion to dismiss granted/denied with appeal filed Feb. 20, 2015; issue concerns timeliness of amended report and proper extension under Chapter 74.
- Goldsmith argued the 30-day extension ran from date of notice of the May 27, 2014 order; she contended the amended report was timely under §74.351(c) since she received notice June 18, 2014.
- Alinea contends the amended report was late; the trial court’s May 27, 2014 order controlled the deadline; docket-entry extension on June 23, 2014 was ineffective; there is no good-cause standard in §74.351(c).
- Court must review dismissal for health-care liability claim abuses of discretion; issue whether a single 30-day extension applies and whether docket-entry extended deadlines beyond statutory limits.
- The appellate court is asked to reverse and dismiss Goldsmith’s suit, and potentially award attorneys’ fees to Alinea under §74.351(b)(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the amended Chapter 74 report timely served? | Goldsmith had 30 days from notice; amended report timely per Section 74.351(c) if notice date is June 18, 2014. | Only a single 30-day extension exists; amended report served after July 18, 2014 is untimely. | Yes, dismissal required; amended report late; extension beyond 30 days not allowed. |
| Did the June 23, 2014 docket-entry extend the deadline? | Deadline extended to the same date as Dr. Ingram per notice. | Docket-entry is not part of the record to modify a written order; cannot enlarge deadline. | No; docket-entry ineffective; written May 27 order controls. |
| May the court rely on a “good cause” to extend beyond 30 days? | Chapter 74 allows extension only as statutory 30 days from notice; no good cause standard. | Chapter 74 §74.351(c) grants discretionary extension; no good-cause requirement. | No; no good-cause standard; extension beyond 30 days improper. |
Key Cases Cited
- Nexion Health at Beechnut, Inc. v. Paul, 335 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2011) (amended report served after 30th day is late; must dismiss)
- In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311 (Tex. App.—Houston [1st Dist.] 2006) (docket entries cannot substitute for written orders; cannot extend beyond written order)
- Ex parte Rains, 257 S.W.217 (Tex. 1923) (orders must be entered of record to be effective)
- Hamilton v. Empire Gas & Fuel Co., 110 S.W.2d 561 (Tex. 1937) (recitals control over conflicting docket entries; judgments must be entered)
- Walker v. Gutierrez, 111 S.W.3d 56 (Tex. 2003) (abuse of discretion standard in health-care liability cases)
- American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001) (abuse of discretion standard for dismissal in health-care claims)