*1 hand, the subsequent clearly affidavit noteWe that this case raises an inter- contradicts the witness’s earlier testimo- issue esting required that we are not ny involving the suit’s material points, holding. in sum- reaching decide our Can explanation, without the affidavit must mary judgment granted be where ex- disregarded. be pert good testifies that an officer acted in 10-11 (Tex.App.-San Antonio faith under two versions of the facts that denied). 2001, pet. Gonzalez contends are drastically entirely different and incon- his response to the appellants’ reply brief sistent? The is primary issue whether the appellants argument waivеd affidavit such a case can meet However, regard to the conflict. our quirements “clear, the affidavit be record reflects that the supplemental re- direct, positive and otherwise credible sponse conflicting noting testimony free from contradictions and inconsisten- filed, timely and since Gonzalez had cies, could been readily have contro- prove burden to his entitlement 166a(e). P. verted.” Crv. Because Tex.R. summary law, judgment as matter issue not necessary resolution this is issue regarding testimony the conflicting is disposition do appeal, of this we properly before us. address issue. affidavit, In his Munoz states that a determined, reasonable officer could have Conclusion observations, based on either officers’ reversed, judgment The trial court’s Zuniga Mr. posing was not danger trial cause remanded himself or others and that Gonzalez acted proceedings court for further consistent reasonably determining that it was not opinion. with this necessary stop Zuniga. deposi- In his tion, Munoz stated that Martinez would
have probable stop had cause to a vehicle
if it stationary remained for min- several a stop sign
utes at protruding and was
onto the shoulder of if it highway stationary DOADES, remained minutes at Individually, several C. Janet and as sign stop very and then madе slow Administratrix Estate of Thom- right signaling. turn without fur- Munoz Doades, Lynn as W. ther if stated that Gonzalez and Martinez Bryant, Appellants, were behind that vehicle Gonzales or- investigate dered Martinez not to Country SYED, M.D., Kamal A. Hill “Zuniga always is the driver. He’s drunk. Specialty Clinic, and Sid Peterson And I smelling up my don’t want drunks Appellees. Hospital, Memorial himself.”, go He vehicle. can kill the order recklessly would be indifferent the safe- No. 04-01-00640-CV. ty of testimony other drivers. Munoz’s Texas, of Appeals Court Gonzalez’s order would be indif- recklessly San Antonio. safety ferent to the of other drivers the facts established Martinez’s testi- 9, 2002. Oct. mony is inconsistent with the conclusion Rehearing Overruled Nov. his affidavit that Gonzalez acted reason- ably, and sum- inconsistency precludes this
mary judgment based Munoz’s affidavit. on Cantu,
See
Frank L. Ted Z. Branson, P.C., Law Offices of Frank L. Curtis, Hakim, William B. Louis S. Law Curtis, Dallas, L.L.P., Offices of Miller and Appellant. for Pruessner, David M. Law Office Pruessner, Dallas, David M. A. William Arnold, III, Arnold, A. William III & As- sociates, P.C., M. Law Stehling, Scott Of- Kerrville, fice M. Stehling, Scott Appellee.
Sitting: STONE, Justice, CATHERINE GREEN, Justice, PAUL W. SARAH B. DUNCAN, Justice. DUNCAN,
Opinion by: SARAH B. Justice.
This appeal arises out of the trial court’s malpractice dismissal of a medical lawsuit. holdWe the trial court acted within the ambit of in dismissing its discretion failing timely appropriately suit the plaintiffs arrest, respiratory among oth- respond to represent does not not sufficient and allega- these same repeated ers.” Doades “good [stat- faith effort to Hospital. against the tions expert report”; definition an utory] to set forth the standard of care for fails and the Clinic On December contains provider each health care exceptions alleging special regarding conclusions breach and mere they allegation “‘failfed] further hold trial court causation. We respond respi- timely appropriately denying did not err in of time extension arrest, ratory among vague others’ cоmplying expert report which to file a Defendants of apprise and does not these *4 an exten- requesting motion omissions al- particular acts and/or allege to sion fails to that the failure file special ex- Hospital also filed leged.” of “an complying report was the result petition that Doades’ ceptions alleging Finally, or mistake.” we hold the accident Hospital] by [the “does not advise in properly reopening trial court acted to through any negligence alleged whom to permit defense evidence to counsel have occurred.” objection spond to an that there was no attorneys February Doades On support the trial court’s attor- evidence to report prepared by filed an ney’s holdings, award. Given these fees Holtzman dated Steven judgment. we affirm the trial court’s Liability Medical and Insurance See Texas Act, Improvement Ann. Tex.Rev.Civ. Stat. Background Factual and PROCEDURAL 13.01(d)(1) (Vernon 4590i, Supp. § 9, 1999, September 2001). On Thomas Doades in its Dr. Holtzman’s states presented emergency at the room of Sid entirety as follows: Hospital pain. Peterson with abdominal to following report submitting I am removed, gallbladder pain His was but the my summary opiniоn a fair provide A in common continued. stone his bile applicable regarding the standards suspected. Accordingly, duct was the fol- care, the manner the care failed which lowing day, put Doades was under con- the standards and the causal to meet scious Dr. Kamal A. sedation while that failure and relationship between performed procedure an “ERCP” in an harm, incurred injury, damages attempt locate and remove the stone. to the Plaintiff. procedure, Thomas
Near end of practice I am a licensed he breathing. Although was quit Doades the laws all its branches resuscitated, he was in essence “brain Diplómate I am a of Texas. State 15,1999, dead”; and, on September and have Surgery Board of American legally declared dead. have since 1978. I been been certified I have in 1988 and 1997. recertified 15, 2000, Thomas Doades’ On November surgery since practiced medicine Doades, widow, daughter and her Janet competent and am to render malpractice lawsuit Lynn filed medical expressed. opinions hereinafter Hill against Syed; employer, his Coun- stan- applicable I am familiar with the Clinic; Specialty Peterson Me- try and Sid care in Texаs. dard of alleged Syed was Hospital. morial following materials I reviewed the “failing monitor have negligent properly medical care regard fail- during procedure, Mr. Doades Sid Doades: treatment Thomas respond signs, vital ing follow 9/8/99 admission, Peterson Hospital Memorial directly involved procedure colonoscopy report, office alleged records 9/7/99 to have failed to appli- meet of Dr. Pelton autopsy report. and the cable standards of care.... Briefly, on per- Dr. T.A. Berg 9/9/99 (2) [T]he statement that “the Peter- Sid laparoscopic formed cholеcystectomy may son Memorial Hospital nurse upon Doades at Sid Peterson Memorial have lacked the proper training, pro- Hospital. operative An cholangiogram ficiency experience” is not a suggested presence of a common statement that the health care 9/10/99, duct stone. On Dr. Kamal A. vider failed to meet the standards Syed attempted perform upon ERCP and does not establish the causal Dr. Syed gave Doades. Doades intrave- relationship between that failure nous Versed and Demerol. After 35 injury required by minutes, Dr. Syed was forced abort statutе. the procedure experienced when Doades (3) “expert” [T]he ... does not state a cardiorespiratory arrest. Doades was what the standard care is for the experienced resuscitated but anoxic en- treatment this patient. *5 cephalopathy expired days and five la- (4) just [T]he sets forth conclu- ter. sions but not facts. I am opinion, upon based reason- Syed able that probability Dr. and the The Hospital’s supported by motion was Sid Hospital Peterson Memorial nurse affidavit, attorney’s its which states departed acceptable from standards of “[t]herе were four from Peter- nurses Sid medical care during upon the ERCP during Memorial Hospital son involved (1) by failing properly Doades moni- procedure.” (2) tor Doades by failing timely and 13, 2001, On responded, June Doades identify properly and cardiorespi- treat arguing that Dr. Holtzman’s ratory complications subsequently which Alternatively, alleged sufficient. Doades Dr. developed. Additionally, Syed and Dr. report “represents more Hospital Sid Peterson Memorial than a good provide faith effort to a fair may nurse proper have lacked the train- summary sought claims” and [Doades’] ing, proficiency experience and neces- thirty-day to provide extension additional sary to administer intravenous sedation. 13.01(f) reports pursuant to sections It my opinion departure that the from (g) alleged of article 4590L Doades also acceptable standard of medical care “only that within past [with six weeks by Syed and the Me- Sid Peterson the release of Care American Transitional morial Hospital proximately nurse Palacios, Texas, Centers Inc. v. caused death of Thomas Doades. (Tex.2001) language S.W.3d 873 ] [the has 15, 2001, May Hospital On moved to report] in Dr. been deemed The Hosрital dismiss Doades’ lawsuit. al- Accordingly, potentially ‘insufficient.’ leged that Holtzman’s defi- affidavit was for 30 [Doades] the Court move[s] cient as a matter of law the following for new opinion with this from reasons: Texas Supreme Court.” See Tex.Rev.Civ. (1)Nowhere (Vernon 4590i, § “expert report” 13.01(f)-(g) does the Stat. Ann. provide Supp.2001). [Doades]
filed fair sum- her supported affidavit, mary Hospi- sponse [the that would enable her to know four Holtz- tal] which of the nurses which he states his belief that Dr. ultimate and the failure tween report satisfies man’s of Thomas Doades. death requirements. statutory 14, 2001, Syed Clinic to practice On June licensed I am lawsuit. Dr. Diplómate moved to dismiss Texas. I am State that Dr. Holtzman’s alleges Surgery and Syed’s motion Board of the American law, as a matter of is deficient I have affidavit been certified since have I am because: and 1997. in 1988 been re-certified (ACLS) support cardiac life an advanced (1) the “expert report” does Nowhere American by the certified provider, a fair provide sum- [Doades] I have until 2003. Association Heart Syed mary would enable surgery since medicine and practiced ap- how failed meet the know qualifica- such I have the and as plicable standards care.... about the care opinions tions offer (2) may that Dr. statement [T]he to Thomas provided and treatment training, proper lacked the have Doades. ficiency necessary to experience sedation administer intravenous laparoscopic performed I have over health care a statement Additionally, I have cholecystectomies. provider the stan- failed meet procedures hundred several performed establish the dards does not sedation, was done as under conscious relationship causal between Mr. Doаdes. I have observed injury required failure Ac- procedures. ERCP participated by the statute. applica- with the cordingly, I am familiar *6 (8) this of care for case. not ble standard “expert” does state [T]he the standard of care is for the what medical following the I have reviewed patient. of this treatment Thomas Doades: the regarding records (4) report just forth sets conclu- [T]he Hospital Peterson Memorial Sid 9/8/99 facts. sions but not admission; colonoscopy re- the 9/7/99 of Dr. Pelton the office records alleges port; The Dr. Holtzman’s Clinic’s motion law, Doades. autopsy repоrt the Mr. as a matter of and report is deficient provide because it “does not mention lapa- Berg performed Dr. T.A. On 9/9/99 statutory requirements with any of the cholecystectomy Mr. roscopic upon Country Hill regard Special- Defendant to Memorial Hos- Doades at Sid Peterson Clinic”; has ty report and “no additional cholangiogram sug- operative An pital. Country Hill produced regarding been duct presence of common gested the Specialty Clinic.” 9/10/99, Syed attempted Dr. stone. On Dr. following day The Doades filed upon ERCP Mr. Doades. perform to supplemental sup- repоrt. This Syed Dr. procedure began at 1230. The entirety in its plemental report states and Doades intravenous Versed gave follows: during course of this Demerol the into the Thirty-five minutes cedure. following supple-
I am submitting to Syed was forced abort expla- procedure, a further report provide mental to Mr. Doades became procedure when ap- my regarding nation opinions of a cardior- care, and then agitated experienced manner in plicable standards was in- Mr. Doades arrest. espiratory to which the care failed meet stan- expe- later but resuscitated relationship tubated causal be- dards rienced anoxic encephalopathy, regard he with Hill to Defendant Country expired five later. Specialty Syed’s Clinic.” Dr. motion reit- erates allegations original in his motion The standard of requires care both the and states supplemen- physicians and using the nurses con- report tal is likewise deficient it patient scious sedation for a provide to provide “still fails to a fair summary of careful to safety surveillance insure the Defendant’s departure from the standard patient. Blood pressure and of care and ... fails to link dеparture pulse should be frequent determined at from the standard of care to the damages pulse oximetry intervals and EKG by claimed Plaintiff.” motion goes on continuously should be monitored. Ad- “[wjith that, argue to regard to the failure ditionally, the physician and nurses as- monitor, not state does how sisting should be well- properly Defendant monitor failed Mr. in the recognition trained and treatment Doades”; it “does state what monitor- complications arising from the admin- ing took place, monitoring what should istration of sedating drugs. A minimum have been conducted or how the monitor- requirement is for the physician to be ing taking place was insufficient.” capable treating respiratory and/or regard failing timely “With identify cardiac arrest accordance with the signs and symptoms cardiorespirato- guidelines. ACLS arrest, ry not state does what my opinion It is that Dr. signs and symptoms cardiorespiratory (which attending procedure nurses identified, arrest should have been charged nurses were with which moni- whom, ‘timely’ what would have been nor toring obligations impossible to tell does take account prior into Mr. Doades depositions without oral as the notes in heart condition and heart “Finally, stent.” unclear) the mеdical are records violated regard failing properly insti- the standard of regarding care conscious fashion, tute treatment a timely (1) failing sedation to property moni- report fails state what treatment was Doades, (2) tor Mr. failing timely instituted, such why treatment was sub- identify signs symptoms car- *7 standard, what treatment have would been (3) diorespiratory failing arrest and ‘timely and who should have instituted properly institute treatment in a timely what treatment.” The motion further as- upon development fashion of cardiores- serts that Dr. Holtzman’s statement piratory complications. These violations garding conclusory. causation is of the standard of care Dr. Syed and the nurses him assisting proximately 9, 2001, July hearing On at the on the caused the death of Thomas Doades. Hospital’s motion, dismissal Doades’ attor- 29, 2001, On June responded to the ney stated that Dr. “supple- Holtzman’s by Syed dismissal motions and the report you mental ... is not before and Clinic in the same manner in which she say I’m not you here to should con- responded Hospital’s had earlier fact, it. In contrary. sider much to the motion. 4th, only you April thing before is the 10, July
On report and the Clinic filed and that’s all we’re here to supplemental Syed’s motions dismiss. Accord- talk about.” Dr. the Clinic’s motion, ing the attorney Clinic’s neither disagreed, stating that the sup- reports or plemental report “mention[s] demonstrates that “it’s any of statutory requirements an why videfs] accident mistake the first (r)(6) section,” “court shall insufficient, because, this apparent- report was challenging adequacy grant a motion it was not suffi- ly counsel knew [Doades’] 13.01(Z). Al § ar- Id. cient”; moreover, attorney expert report.” [the] the Clinic’s not marshal report “need though expert an supplemental report establishes gued, the it must include attorney “gotten plaintiffs proof, all the that Doades’ hаd opinion on of the ele expert’s each supplemental report to file a chance in the Ameri of ments identified statute.” it’s still insufficient.” At the conclusion Texas, can Transitional Care Centers hearing, the trial court announced (Tex. Palacios, for an Inc. deny would Doades’ motion 2001). Thus, report must inform time, “the grant the defendants’ extension of $14,000 plain conduct the dismiss, specific of the and award defendant motions to Second, question. into tiff called fees to the defendants. Ulti- has provide must judge equally important, written or- mately, signed the trial court to conclude a for the trial memorializing rulings. ders his oral basis “A at merit.” Id. 879. the claims have Expert Report Adequacy con merely expert’s report that states care, standard of clusions about argues Dr. Doades first breach, fulfill these and causation does not with stat report complies meet Nor can a purposes. two utory requirements represents a good- thus a purposes these constitute “good faith effort to [stat statutory faith effort if omits utory] report.” of an We expert definition deciding In requirements.” Id. whether disagree. met, a trial court “should this standard is Applicable Law and Standard at reрort.” than the Id. look no further
of Review one eighty Within hundred and ruling review the trial court’s We claim, filing liability after health care at Id. an abuse of discretion standard. claimant must for each provide “counsel standard, reviewing 877. “Under this provider or health care one the trial court’s may court not disturb expert reports.” more Stat. issues, Tex.Rev.Civ. if the of factual even resolution 13.01(d)(1) (Vernon 4590i, § Ann. court would have decided reviewing context, Supp.2001). “expert In this an differently, unless the resolution issue report” report by “means written arbitrary shown to be and unreasonable.” provides summary a fair of the Physi- Emergency Morrill v. Third Coast as of expert’s opinions the date cians, P.A., (Tex.App.- *8 applicable of report regarding standards denied) (citing pet. Antonio San care, the ren- the manner which care Packer, 833, 839-40 Walker health by dered the or care (Tex.1992)). a “A resolution of trial court’s standards, the and vider failed to meet the arbitrary factual issue and unreasonable failure relationship causal between that trial if the relator establishes harm, damages injury, and or only reasonably court have reached could 13.01(r)(6). §Id. claimed.” Id. one decision.” court, after appеars it “[I]f Discussion report represent not hearing, does April report 4 hold Dr. Holtzman’s comply faith to with the We good a effort good a faith effort does not constitute expert report of an Subsection definition with comply requirements 13.01(g), of section an accident tion or mistake is by person’s 13.01 because fails set forth the stan- a inadequate characterized of knowledge dard care for each of the unexpected defendant facts or an health care providers happening precludes compliance contains mere with Vela, conсlusions regarding breach the statute.” De Leon v. and causa- Palacios, (re- See 201 (Tex.App.-San tion. pet. S.W.3d at Antonio denied). port that review the court’s merely regard- ruling states We trial conclusions aon motion for extension of time to ing statutory requirements insufficient); file a complying report under of id. at 880 the abuse dis- (“Identifying the of standard cretion standard discussed above. care is critical: Whether defendant duty breached his or her patient can- Discussion not be determined specific absent informa- tion about what Doades first contends defen the defendant should have dants are differently.”). estopped challenge the ade done the trial Accordingly, of quacy April court was authorized dismiss their failure to raise deficiencies before lawsuit. one eighty expired. hundred cite, disagree. We Doades does 13.01(g) Section Extension Time of found, any authority we have not remotely argues Doades next the trial court erred suggesting duty to point defendant has a in denying her motion for an extension of out the expert report deficiencies time under 13.01(g), section because the before the expiration one hundred and uncontroverted evidencе establishes that eighty days. the failure to file a complying report was neither intentional nor the result of con- Doades next contends her attor indifference; scious ney’s “clearly affidavit defendants establishes estopped alleged were challenging comply from the suffi- failure to statute’s ciency requirements regarding report by the Section 13.01 expert report their failure to was not the raise deficiencies result inten tional expiration disregard before the hun- conscious indifference of one eighty days. disagree dred and but rather the result accident or We on “Furthermore,” both mistake.” counts. con tends, “no ... presented evidence was Applicable Law Standard controvert the affidavit and sworn testimo
of Review ny attorney].... [Doades’ Consequent ly, the Trial Court its abused discre “[I]f has claimant failed to in denying tion extension.” 30-day with a deadline established Subsection again We disagree. (d) of this hearing section and after The final paragraph of Doades’ attor- court finds that the failure of the claimant ney’s only affidavit is the paragraph attorney the claimant’s was not inten address the need for an extension. It tional or the result indiffer cоnscious states follows: ence but was the of an result accident or *9 mistake, grant grace peri required the court shall I was an aware that Texas law days permit expert opinions od of 30 the report identifying claimant the expert. with that the report subsection.” an I was aware that Tex.Rev. (Ver 4590i, § 13.01(g) days art. needed to be filed within 180 of the Civ. Ann. Stat. non Supp.2001). the context of sec- Original filing. “[I]n date of I the Petition’s
673 failed establish ei the movant report] 4 April [Dr. filed n within facts knowledge counsel or 90 and Defendant’s “inadequate ther as to its any complaints never raised happening precludes that unexpected an therefore, days; Leon, I 180 adequacy before the De statute.” compliance shared that Defendant’s counsel believed at 201. S.W.3d report my in that the was suffi- belief § cient the terms of 13.01 art. 13.01(f) Extension Section my 4590L It is belief that Holtz- next trial court argues Doades the 4, complies man’s letter an in her motion for exten denying erred not requirements. I was con-
with those report file her under section sion of time to sciously fact that an indifferent the 13.01(f). disagree. We filed, nor needed to be was expert report may, for cause consciously good I indifferent to the contents The trial “court report. hearing, after motion and extend shown (d) in period Subsection specified time Thus, attorney nowhere states Doades’ days.” of this section for an additional affidavit the nature his “mistake his 13(f) 4590i, § indeed, Ann. accident”; Stat. his affidavit does not Tex.Rev.Civ. (Vernon However, Supp.2001). claim even “mistake accident” as 210 days filed later than must then be no filing noncomplying report. reason for short, See id. after the lawsuit filed. attorney’s In Doades’ affidavit vides no reason believe his failure to file 15, filed Doades’ lawsuit was November “in- by his complying caused 2000; therefore, after day the 210th adequate knowledge of the facts or an 13, filed date the lawsuit was June unexpected happening preclude[d] date, had filed an By that Doades not there- compliance with statute.” We meaning of report” within the sec- “expert denying hold trial fore did err 13.01(r)(6). Accordingly, hold the tion we of time Doades’ motion an extension denying not err in trial court did Leon, 13.01(g). under section See De for an extension of time under sec- motion at 201. S.W.3d 13.01(f). tion Blumenthal, Citing v. Whitworth 393, 2001, 401-02 (Tex.App.-Dallas S.W.3d Attorney’s fees Walker, agr.), pet. dism’d v. Gutierrez Finally, argues trial (Tex.App.-Corpus 65-66 fees attorney’s awarding court еrred 2001, pet. granted), Horsley- Christi because, and the Clinic Syed, Hospital, Layman Angeles, 536-37 rulings, at the time of the trial court’s oral ( Tex.App.-Texarkana pet.), no support there was no evidence dissent states that of our sister “[t]hree awards; upon court thus relied courts have concluded that evidence stating “You’re representations, an attorney mistakenly believed and I considered an officer of Court with the Act is sufficient report complied However, Doades’ at testimony.” that as negate mistake and to con to establish objected, is no evi torney stating “there and contends we indifference” scious in a sufficient the Court form dence before However, likewise. these hold should do Therefore, attorney’s fees.” to support at odds with ings our sister courts are attorneys affidavits Leon, the defendants’ De in which court’s decision in this detailing services rendered trial court did not the court held stating charged 13.01(g) extension amount fees denying err section *10 674 reasonable, charged
the amounts were court not did err granting defen- necessary, customary similar dants’ motions to dismiss. for work Nor did the court in reopening err county And, in the the evidence to hearing of suit. at a permit the attorneys defеndants’ to submit day held the final judgment signed, was proof attorney’s Accordingly, fees. we attorneys the defendants’ in sup- testified affirm trial judgment. court’s port of the fee claims. According Doades, fees evidence con- Dissenting opinion by CATHERINE in the tained affidavits and reiterated at STONE, Justice. hearing came too We disagree. late. STONE, Justice,
CATHERINE Applicable Law and Standard dissenting.
of Review majority The holds that Doades’ attor- ney any support did tender evidence to requires Article 4590i an an extension of time under section award attorney’s fees and costs of court In 13.01(g). order be entitled to a failed, “as sanctions” claimant has “[i]f extension, 13.01(g) section had any for defendant or health care the burden to show some excuse of acci- (d) provider, to comply with Subsection dent or mistake in order to establish this section required.” within the time they did not act “intentionally” 4590i, Tex.Rev.Civ. Stat. Ann. Vela, “conscious indifference.” De Leon v. 13.01(e) (Vernon § Supp.2001). “Statutes 194, 70 (Tex.App.-San S.W.3d Antonio providing that a party ‘shall be award denied). 2001, pet. ed’ ... attorney fees are not discretion Curtis, attorney, The Doades’ B. William 19, ary.” Bocquet Herring, v. S.W.2d his stated in affidavit that he aware of was (Tex.1998). mandatory But even Texas law and believed the expert report of attorney’s award fees must sup be requirements. satisfied the Act’s Curtis ported evidence. rule... “[T]o without further noted expert filed the supporting an evidence” constitutes abuse lawsuit, port within 90 filing However, of discretion. Id. at 21. a trial complained defense counsel never may permit “court additional evidence to therefore, inadequate; was Cur- time,” clearly be offered at “[w]hen tis believed that defense shared his counsel appears necessary to be to the due admin expert report belief that the sufficient. justice.” istration Tex.R. Civ. P. 270. holding for majority’s basis review We a trial court’s decision to re that Curtis “nowhere states in his affidavit open the abuse evidence of dis ” the nature of his ‘mistake or accident’ or Hanson, cretion standard. See v. Forrest “ claims ‘mistake or accident’ reason (Tex.1968). 899, 424 S.W.2d filing noncomplying report.” Three Under the presented, circumstances we of our sister courts have concluded that hold that the trial court did not abuse its attorney mistakenly evidence an be- in reopening discretion the evidence. lieved an with the report complied
Act is sufficient to establish mistake and to Conclusion negаte conscious indifference. Whitworth Because attorney inade- Blumenthal, v. 401-02 quate expert report and to claim failed (Tex.App.-Dallas pet. by agr.); dism’d tending offer evidence that the Walker, establish Gutierrez S.W.3d 65-66 filing inadequate Christi, granted); was the (Tex.App.-Corpus pet. mistake, Angeles, result of an accident or the trial Horsley-Layman v.
675 1998, 533, no (Tex.App.-Texarkana 536-37 PRODUCTS, AMERICAN that Curtis stated that GREAT fact
pet.). report complied Appellant, “believed” act, opposed stating that he “mistak- v. act report complied enly believed” denying be basis for section cannot INTERNATIONAL, A PERMABOND 13.01(g) request. pоsition Such a elevates STARCH OF NATIONAL DIVISION substance, a trial court form over COMPANY, Appel AND CHEMICAL of an affida- should focus on substance lee. If “catch” an attor- vit not certain words. expert report is suffi- ney “believes” an No. 03-00-00683-CV. cient, not, expert report is then Texas, necessarily Appeals of is mistak- Court of belief en. Austin. Although attorney may negligent be 10, 2002. Oct. failing expert report to ensure that an requirements, negli Act’s
satisfies the 13, 2003. Rehearing Feb. Overruled indif equate does not to conscious gence Perry Stanley, v. ference. See S.W.3d
819, 1430409, (Tex.App.- at *6 WL h.); Jul.3, see also pet.
Texarkana no v. City Hosp.,
Roberts Dallas Medical
Inc., (Tex.App.-Texar denied) (failure 1999, pet.
kana to read only indif negligent
statute not conscious
ference). particularly true under This
the circumstances this case where Cur days prior
tis filed the
deadline, until and the defendants waited com 180-day passed deadline had negating
plain. Because Curtis’s affidavit uncontroverted,
conscious indifference was
the trial court its discretion de abused
nying 13.01(g) extension. See section
Whitworth, (holding at 401 trial denying ex
court abuses its discretion plaintiffs negating if con
tension evidence uncontroverted); indifference
scious
Landry Ringer, 44 S.W.3d 2001, no
(Tex.App.-Houston [14th Dist.] (same).
pet.) otherwise, I majority holds
Because the
respectfully dissent.