Strobel v. Marlow
341 S.W.3d 470
| Tex. App. | 2011Background
- Marlows sued Strobel and Strobel & Associates Prosthetics for negligence arising from a cast he made, allegedly causing an ulcer and multiple surgeries to Larry.
- Marlows argued the claims were health care liability claims.
- Strobel held a Texas prosthetist license and performed direct patient care related to Larry’s amputation.
- The court evaluated whether Strobel is a health care provider under Tex. Civ. Prac. & Rem. Code § 74.001(a)(12)(A) and whether the Marlows timely served an expert report under § 74.351(a).
- The Marlows filed suit September 12, 2008; deadline for serving an expert report was January 10, 2009; Bussell’s report was served February 18, 2009, after the deadline.
- The trial court denied the motions to dismiss; this accelerated interlocutory appeal followed, culminating in reversal and dismissal with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Strobel is a health care provider under §74.001(a)(12)(A). | Marlows contend prosthetists are not health care providers. | Strobel argues prosthetists may be health care providers under the statute. | Strobel is a health care provider; Marlows’ claims are health care liability claims. |
| Whether the Marlows timely served an expert report. | Bussell's report was served timely or service was evidenced by compliant method. | Service failed to meet Rule 21a requirements; no proper certificate of service or proof of receipt. | No timely service of Bussell's report; dismissal with prejudice required. |
Key Cases Cited
- Marks v. St. Luke's Episcopal Hospital, 319 S.W.3d 658 (Tex. 2010) (defines health care liability claim elements under former statute and informs analysis)
- Christus Health v. Beal, 240 S.W.3d 282 (Tex.App.-Houston [1st Dist.] 2007) (nonexclusive list; amended definition of health care provider)
- Ponce v. El Paso Healthcare System, Ltd., 55 S.W.3d 34 (Tex.App.-El Paso 2001) (predecessor statute interpretation; distinction after repeal)
- Wermske, 349 S.W.2d 90 (Tex. 1961) (evidence requirements for transmission/receipt of documents)
- Mathis v. Lockwood, 166 S.W.3d 743 (Tex. 2005) (presumption of receipt in service by 21a; burden when challenged)
- Mocega v. Urquhart, 79 S.W.3d 61 (Tex.App.-Houston [14th Dist.] 2002) (proof required to sustain service by office practice)