Carpinteyro v. Gomez
403 S.W.3d 508
Tex. App.2013Background
- Gomez, a 91-year-old resident, was admitted to Amistad Nursing and Rehabilitation Center in June 2009 under care of Dr. Carpinteyro (IMCU).
- Gomez was hospitalized December 13, 2009, non-responsive with poor vital signs; malnourishment and dehydration were noted; distal femur fracture treated by immobilization.
- Gomez was discharged to Amistad hospice care on January 4, 2010 and died January 21, 2010.
- Gomez’s children filed health care liability claims on February 10, 2012 against Carpinteyro, IMCU, and Amistad.
- The Gomezes served their expert report by certified mail on June 11, 2012; defendants moved to dismiss as untimely; trial court denied the motions; defendants appealed.
- The appellate court affirmed, holding the expert report was timely under § 74.351(a) and did not conflict with Rule 4 or Gov’t Code § 311.014.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the expert report was timely under § 74.351(a). | Gomezes argue no conflict exists; 120 days computed by Rule 4/§311.014; mailing on June 11 satisfies timeliness. | Defendants contend the 120th day fell on Saturday, June 9, so service on June 11 was untimely; no conflict justifies deviation. | Timely served; no conflict; court affirmed denial of dismissal. |
Key Cases Cited
- Texas Laurel Ridge Hosp., L.P. v. Almazan, 374 S.W.3d 601 (Tex.App.-San Antonio 2012) (abuse of discretion standard; deference to trial court's rulings on medical liability)
- Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873 (Tex. 2001) (standard for expert report timeliness in health care lawsuits)
- In re Anderson Constr. Co., 338 S.W.3d 190 (Tex.App.-Beaumont 2011) (no conflict between rules governing procedure and other statutes)
- Chesser v. LifeCare Mgmt. Serv., L.L.C., 356 S.W.3d 613 (Tex.App.-Fort Worth 2011) (conflict analysis on procedural rules in health care claims)