Doan v. Christus Health Ark-La-Tex
329 S.W.3d 907
| Tex. App. | 2010Background
- Doan filed a medical liability claimJuly 15, 2009 seeking health care provider liability;
- She was required to serve an expert report and CV within 120 days, by November 12, 2009;
- Her attorney Hoover died October 23, 2009, before the deadline;
- Doan did not serve an expert report by the deadline;
- John Stroud III was appointed November 20, 2009 to take over Hoover's practice;
- Doan learned of Hoover's death only in December 2009;
- Christus moved to dismiss under §74.351(b) in January 2010, asserting failure to serve the report;
- Trial court granted dismissal with prejudice and awarded Christus $5,000 in fees;
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §74.351(a) Open Courts violates the Open Courts provision as applied | Doan argues the statute imposes an impossible condition | Christus argues report could have been served within 120 days | No Open Courts violation; statute applied and dismissal affirmed |
Key Cases Cited
- In re Jorden, 249 S.W.3d 416 (Tex.2008) (de novo review for constitutional questions; trial court no discretion in law)
- Walker v. Packer, 827 S.W.2d 833 (Tex.1992) (pure questions of law reviewed de novo)
- Palacios (Am. Transitional Care Ctrs. of Tex. v. Palacios), 46 S.W.3d 873 (Tex.2001) (Open Courts applied to evidence-timing of expert reports)
- Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984) (Open Courts: remedy not contingent on impossible condition)
- Dillingham v. Putnam, 14 S.W.303 (Tex.1890) (practical impossibility as invalid open courts premise)
- Hanks v. City of Port Arthur, 48 S.W.2d 944 (Tex.1932) (unreasonable condition precedent to recovery)
- Trinity River Auth. v. URS Consultants, Inc., 889 S.W.2d 259 (Tex.1994) (Open Courts balancing test)
- Gossip v. Gill, 39 S.W.3d 717 (Tex.App.-Houston 2001) (Open Courts application to expert report requirements)