Thе subject matter of this appeal is the trial court’s order granting in part and denying in part the motion of appellant Fred Hagedorn, M.D., (Hagedorn) to dismiss appellee James Tisdale’s (Tisdale) health care liability claims against him. Both parties have asserted error on appeal. For the reasons set forth below, we modify the judgment of the trial court and, as modified, affirm it.
Tisdale filed a lawsuit on March 15, 2000, alleging medical malpractice on the part of Hagedorn in his treatment of Tis-dale in the emergency room after a fall from scaffolding. The claims asserted are health care liability claims pursuant to article 4590i of the Texas Revised Civil Statutes (Vernоn Supp.2001) (the Medical Liability and Insurance Improvement Act).
1
Tisdale failed to give 60 days pre-suit notice as required by the statute, and the case was therefore abated for 60 days. Tisdale then filed a written expert report required by the statute on October 2, 2000. Hagedorn moved to dismiss the lawsuit on the basis the report was filed late and did not constitute a good faith effort to comply with the requirements of the statute. Pri- or to a hearing on the motion, Tisdale non-suited his case. The trial court went
Hagedorn’s issues are whether the trial court abused its discretion (1) in finding that Tisdale did not timely file his expert report and, if so, whether such a finding required the trial court to dismiss with prejudice, and (2) whether the trial court abused its discretion in finding that the report was not a good faith effort to comply with the statute and, if so, whether such a finding required the trial court to dismiss with prejudice. In essence, Hage-dorn only challenges the portion of the trial court’s order which failed to dismiss the lawsuit with prejudice and seeks that we uphold the rest of the order. In contrast, Tisdale claims the trial court erred in even considering and ruling on the motion to dismiss after he had already filed and served his non-suit. He also challenges the finding that the medical expert report was not timely filed, it was not a good faith effort to comply with the statute, as well as the award of attorney’s fees in the amount of $11,690.
We will initially consider Tisdale’s complaint that the trial court did not have jurisdiction to rule on the motion for dismissal because, prior to the hearing on the same, Tisdale had filed a non-suit. The notice of non-suit was filed on January 11, 2001, eight days before the scheduled healing on the motion to dismiss. The trial court did not issue its order until April 13, 2001. Tisdale claims that a party has an absolute right to a non-suit at the time a request is filed with the court clerk and that the signing of an order for non-suit is merely a ministerial act. In response to the argument of Hagedorn that Rule 162 of the Rules of Civil Procedure gives the trial court jurisdiction to rule on the motion to dismiss, Tisdale claims that Rule 162 applies only to sanctions imposed under Rule 13 of the Rules of Civil Procedure.
Rule 162 provides in pertinent part:
At any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case, or take a non-suit, which shall be entered in the minutes. Notice of the dismissal or non-suit shall be served in accordance with Rule 21a on any party who has answered or has been served with prоcess without necessity of court order.
Any dismissal pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief or excuse the payment of all costs taxed by the clerk. A dismissal under this rule shall have no effect on any motion for sanctions, attorney’s fees or other costs, pending at the time of dismissal, as determined by the court.
Tex.R. Civ. P. 162. The comment to the rule states that the purpose of the rule is to fix a definite time after which a party may not voluntarily dismiss or non-suit a cause of action. In addition, any pending motions for sanctions or attorney’s fees filed prior to the motion for non-suit or dismissal are not to bе disturbed.
Rule 13 provides for the court, either on motion or its own initiative, to impose an appropriate sanction under Rule 215-2b against attorneys or parties who bring fictitious suits as experiments to get an opinion of the court or who file any fictitious pleading for such a purpose or make statements in a pleading which they know to be
Rule 162 does not limit its applicability to any particular type of sanctions or reason for sanctions. In fact, the rule refers to “any motion for sanctions, attorney’s fees or other costs.” Statutory construction requires that we give effect to the intent of the legislature.
Monsanto Co. v. Cornerstones Mun. Utility Dist.,
In
Tri-M Erectors, Inc. v. Clearwater Constructors, Inc.,
Furthermore, in
Martinez v. Lakshmikanth,
Tisdale argues in reliance on
In re Bennett,
Thus, contrary to the facts present before us, no motion for sanctions was pending in
Bennett
at the time the notices of non-suit were filed. While the court noted that the trial court’s imposition of sanctions had no bearing on the merits of the case and did not interfere with jurisdiction in federal court, it made no statement as broad as the one argued by Tisdale,
ie.,
that Rule 162 applies only to sanctions not affecting the merits of the case.
Id.
at 39. The court further noted that the signing of an order dismissing a case, not the filing of a notice of non-suit, determines when the court’s plenary power expires.
Id.
at 38. In this instance,
We will next consider Hagedom’s first issue and Tisdale’s second issue or cross-point as to whether the trial court erred in finding that Tisdale did not timely file his medical expert report. Section 18.01(d) of article 4590i provides that not later than the 180th day after the date on which a health care liability claim is filed or the last day of any extended period established under Subsection (f) or (h), the claimant shall, for each physician or health care provider against whom a claim is asserted, furnish to counsel for each physician or health care provider one or more expert reports, with a curriculum vitae of each expert or voluntarily non-suit the action against the physician or health care provider. Article 4590i § 13.01(d)(1) and (2). The court may for good cause shown extend any time period for an additional 30 days. Id. § 13.01(f). The parties may also agree to extend the time. Id. § 13.01(h). In this instance, neither of those events took place.
As already notеd, the claim was filed on March 15, 2000, The parties agree that Tisdale would normally have had until September 11, 2000, to provide his expert report. However, the report was not filed until October 2, 2000. Nevertheless, Tis-dale argues that the report was not filed late because the trial court abated the action from April 3, 2000, until June 2, 2000, thereby giving him an additional 60 days to file the report.
Section 4.01 of article 4590i provides: (a) Any person or his authorized agent asserting a health care liability claim shall give written notice of such claim by certified mail, return receipt requested, to each physician or health care provider against whom such claim is being made at least 60 days before the filing of a suit in any court of this state based upon a health care liability claim.
Hagedorn filed a plea in abatement based on Tisdale’s failure to comply with this provision. Thereafter, an agreed order of abatement was entered by the court. Tis-dale contends the abatement left him with no power to prosecute his claims, and he could not have filed his report during the time of abatement. However, we note that Tisdale still had almost three months after the abatement ended to file his report. Thus, the issue for determination is whether the abatement extended the time period.
Abatement of a cause is the appropriate remedy for a plaintiffs failure to comply with the 60 day notice requirement of section 4.01.
Schepps v. Presbyterian Hosp. Of Dallas,
In this instance, the question before this court is not whether the medical expert report could have been filed during the abatement period, since the report was not due to be filed until some three months after the end of the abatement period, but whether the fact of the abatement period extended the deadline for filing the report by 60 days. In a recent case, the Dallas Court of Appeals has answered the question in the affirmative, relying on its conclusion that since the report could not have been filed during the abatement period, it logically follows that any statutory deadlines are necessarily suspended as well.
Kosarek,
Similarly, in
Tibbetts v. Gagliardi,
The Medical Liability and Insurance Improvement Act was enacted to curtail frivolous claims against physicians and other health care providers. Article 4590i § 1.02;
Lakshmikanth,
We are disturbed by the fact that, if an abatement for failure to give the required notice under the act automatically extends the deadline for filing the medical expert report, a plaintiff would in fact be rewarded with additional time for the filing of his report by his failure to comply with the statutory notice requirement. In other words, a health care provider would be placed in the position of having to choose whether to seek an abatement for the failure of the plaintiff to give him the statutorily requirеd 60-day notice or to hold the plaintiff to the statutorily required deadline for filing the expert report. We cannot believe that the intent of the legislature to discourage frivolous lawsuits and encourage settlement of claims would be served by such a construction, since the legislature has determined that failing to timely file an expert report means that the claim is either frivolous or at best has been prematurely brought.
See American Transitional Care Centers of Texas, Inc. v. Palacios,
Moreover, we fail to see how the claimant is damaged by being required to adhere to the statutory requirement. The plaintiff to some extent chooses when to file his lаwsuit and, at the time of filing, knows he has 180 days to file his expert medical report. The trial court also has authority to extend the deadline for an additional 30 days upon a showing of good cause or that the failure of a claimant’s attorney to file the report was the result of an accident or mistake. Article 4590i § 13.01(f) and (g). Without reaching a decision as to whether a medical expert report could be filed during the abatement
In his third issue or cross-point, Tisdale argues that the trial court erred in concluding that the expert report of Dr. Michael A. Mitchell did not constitute a good faith effort to comply with the requirements of article 4590L In opposition, Hagedorn asserts in his second issue that the trial court did not err in its conclusion. We review the trial court’s ruling under an abuse of discretion standard.
Palacios,
A trial court may grant a motion challenging the adequacy of an expert report only if it appears, after hearing, that the report does not cоnstitute a good faith effort to comply with the definition of an expert report. Article 4590i § 13.01(i). An “expert report” is defined as “a written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.”
Id.
§ 13.01(r)(6). While the report does not have to present all the plaintiffs proof, it must include the expert’s opinion on each of the elements identified in the statutе.
Palacios,
One basis upon which Hagedorn attacked the report was that it failed to show Dr. Mitchell’s qualifications. A person may qualify as an expert witness on the issue of whether a physician departed from acceрted standards of medical care only if the person is a physician who (1) is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose, (2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim, and (3) is qualified on the basis of training or experience to offer an expert opinion regarding the accepted standards of medical care. Article 4590i § 14.01(a). In determining whether the expert is qualified on the basis of training or experience, the court is to consider whether, at the time the claim arose оr the testimony is given, the witness is board certified or has other substantial training or experience in an area of practice relevant to the claim and is actively practicing medicine in rendering medical care services relevant to the claim. Id. § 14.01(c).
Tisdale was treated in the emergency room of University Medical Center by Hagedorn after falling about six feet off a scaffold. Hagedorn ordered x-rays of the spine, chest and pelvis, which showed bone spurs in the spine, but no fractures or abnormalities in the chest. Tisdale’s wounds were cleaned and sutured. At the time he was to be discharged, he com
Hagedorn argues that neither Dr. Mitchell’s report or his curriculum vitae show the requisite knowledge of accepted standards of medical care for the diagnosis, care, or treatment of a suspected spinal cord injury due to a fall or the qualifications to express an opinion on causation. Specifically, it fails to show any training or experience in rendering emergency medical care in general or emergency care for a susрected spinal cord injury.
In response, Tisdale claims that Dr. Mitchell is board certified in family medicine and geriatrics and is certified as an instructor in advanced trauma life support and advanced pediatric life support. He is also supervising physician/medical director at a rural health clinic in Holliday, Texas. Tisdale further points to Dr. Mitchell’s years of private practice in medicine and his period of employment as medical director at the Oklahoma Department of Corrections. He posits that we should focus on the condition involved in the claim, rather than Dr. Mitchell’s particular area of expertise.
Every licensed doctor is not automatically qualified to testify as an expert on every medical question.
Broders v. Heise,
Applying those criteria to Dr. Mitchell, it appears from his resume that he was practicing medicine both at the time the report was prepared and at the time the claim arose; however, that practice appears to be a general one. The only indication that he has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the injury sustained is his certification in advanced trauma life support and his statement that a failure to palpate the neck following negative x-rays and to maintain in-line mobilization while doing so will result in immediate failure in advanced trauma life support training. There is no indication Dr. Mitchell has ever practiced in emergency medicine, trauma, or the treatment of spinal injuries, and he does not state that he has knowledge of the accepted standards of medical care for the diagnosis, care and treatment of traumatic spinal injuries.
Even if Dr. Mitchell’s qualifications were sufficient, Hagedorn also challenges Dr. Mitchell’s report on the basis that it does not represent a good faith effort to provide a fair summary of the standard of care, breach, and causation. In his report, Dr. Mitchell is critical of Hagedorn in several areas: 1) removal of stabilization devices, 2) prescribing Valium and Demerol, 3) the failure to make a neurological evaluation or if one was made to document it, and 4) the delay in re-evaluating the patient for 25 minutes after being notified that he could not move his legs. For each of these complaints, Dr. Mitchell was required to state the standard of care, identify the breach of that standard, and demonstrate causation.
Palpation of the neck for tenderness should be done following negative x-ray examination. In-line stabilization is maintained while the cervical spine is palpated for tenderness, spasm or deformity. Failing to perform this is criteria for immediate failure in Advanced Trauma Life Support training. Immobilization is also maintained in some manner dining palpation of the thoracic and lumbar spine.
However, Dr. Mitchell asserts that, “[b]y the record, I must assume that Mr. Tis-dale’s immobilization devices were removed early on in his evaluation.” Even though Dr. Mitchell opines that the condition was worsened by the stabilization devices being removed before they should have, he is not able to say when they were removed and only “assumes” they were removed early. He also claims that at the time of admission to the emergency room, the рatient only complained of pain in his legs, and therefore “[s]omething must have happened in the intervening period of time to produce the paresis” and, in his opinion, that occurred due to “the immobilization devices being removed and the patient being moved around repeatedly over a rather extended period of time.” This opinion is based on one assumption or conclusion built upon another, which is not sufficient to show a breach of the standard of care. He also fails to state how the immobilization would have prevented or impeded the bleeding and swelling from a contusion.
With respect to the prescribing of Valium and Demerol, Dr. Mitchell states the following:
I also believe that the ER physician strayed from the standard of care in giving Valium twice while in x-ray. This medication could potentially have covered up muscle spasms or subtle strength differences, which may have been important findings in leading the physician to the conclusion that a neurological injury probably existed. Demerol would have further compromised the ongoing exam by covering up both pain and spasms. These meds should not have been given until it was reasonably certain that no neurological or internal injuries existed.
In his summary on this complaint, he states, “[f|rom my review of the chart, I see no reason for him to have been sedated with the Valium and Demerol. This may have also delayed proper diagnosis and treatment.” Although once again Dr. Mitchell arguably states the standard of care, he can only say that Valium could potentially cover up symptoms which may have been important and that proper treatment may have been delayed by the Valium and Demerol. He does not state that any delay alone, even if it occurred, caused Tisdale’s injuries, except as it is related to the assumed failure to maintain stabilization.
The third complaint is a failure to either perform or document the performance of a neurological examination. If a neurological exam was performed but not documented, Dr. Mitchell does not explain how that lack of documentation resulted in the injuries to the patient. With respect to the actual failure to perform a neurological examination, Dr. Mitchell states as follows:
Any patient with neurological deficits should be considered to have an unstable spinal injury. Neurological evaluation should have been carried out initially and then repeated at intervalsthroughout his time in ER and X-ray. By documentation, this was not done and is outside the current standard of care. Had a neurological deficit been noted, immobilization should have been continued and early consultation by neurology or neurosurgery should have been carried out. It is outside current standard of care for neurological injury tо be picked up at discharge from the ER.
Although Dr. Mitchell furnishes the standard of care and opines that a breach occurred, he does not state how this failure resulted in the injuries. He does not claim that the patient would have exhibited neurological deficits if the exam had been performed, nor does he state that any delay resulting from the failure to perform this examination caused Tisdale’s injuries, except as it relates to the assumed failure to maintain immobilization devices.
As to the delay in evaluation of the patient after he complained of not being able to move his legs, Dr. Mitchell only says that it “distresses” him that Hage-dorn was notified of the patiеnt’s condition but did not examine him until 25 minutes later. He states, “I certainly think this appears to be inappropriate.” Neither a standard of care nor causation is provided in this statement.
As our analysis shows, the report fails to provide a fair summary for each of the three required elements, ie., the standard of care, breach, and causation for each asserted complaint. Based on this record, we cannot say that the trial court abused its discretion in finding that the expert report did not constitute a good faith attempt to provide a fair summary of the required elements. We sustain Hage-dorn’s second issue and overrule Tisdale’s third issue.
Having found no abuse of disсretion in the court’s findings as to the lack of timeliness of the filing of the expert report and the sufficiency of that report, we must address both Hagedorn’s contention that the trial court should have dismissed the cause with prejudice, as well as Tisdale’s claimed error in the award of attorney’s fees. The statute provides that on the failure of the claimant to timely furnish the expert report, the trial court
shall
on the motion of the physician enter an order awarding sanctions against the claimant or the claimant’s attorney, those sanctions being the reasonable attorney’s fees and costs of court, the forfeiture of any cost bond, and the dismissal of the action of the claimant against the defendant with prejudice to the refiling of the claim. Article 4590i § 13.01(e). As noted, the language of the statute contains the word “shall” as opposed to “may.” It has been held that the trial court is required to dismiss with prejudice on the motion of the defendant when the statutory 180 day period has passed without a proper report being filed.
Palacios,
The trial court’s stated reason for not dismissing the case with prejudice was that the complainant had already non-suited his cause. However, we have determined that the trial court still maintained jurisdiction to consider Hagedorn’s motion to dismiss in spite of the non-suit, and therefore the court had the authority to award the sanctions provided by statute.
See Clearwater Constructors,
Having also found that the award of attorney’s fees was warranted, we will address Tisdale’s contention that there is no competent evidence to support the amount of attorney’s fees,
i.e.,
the evidence is legally and factually insufficient. The statute provides for the award of reasonable attorney’s fees. The amount of an award of an attorney’s fee is within the discretion of the trial court.
Stable Energy, L.P. v. Newberry,
Jim Hund testified that he represented Hagedorn in the case, had been in practice since 1983, and was board cеrtified in civil trial law. As of the time of the hearing, $11,690 in attorney’s fees had been incurred in the case. Hund stated that his hourly rate was $150 per hour, another attorney who had worked on the case had a rate of $125 per hour, and the two paralegals who worked on the case were billed at $65 and $60 per hour. He further stated that all of the fees incurred were reasonable and necessary in the representation of his client. Upon questioning by the court, Hund affirmed that he had taken the hourly rate of each person working on the case, multiplied them by the hours worked by each individual, and added them together to arrive at the sum of $11,690.
Tisdale contends there is no evidence as to the amount of time that counsel spent in defending the claims or that he was precluded from other employment by that representation, no evidence as to the fees customarily charged in the locality for similar legal services, or time limitations imposed upon counsel by the client. The reasonableness and necessity of attorney’s fees is shown by evidence that the fees were incurred while in litigation with the party sought to be charged with the fees on a claim which allows the recovery of such fees.
See Stewart Title Guar. Co. v. Sterling,
Factors to be considered by the court in determining the amount include (1) the time and labor required, novelty and difficulty of the question presentеd, and the skill required, (2) the likelihood that acceptance of employment precluded other employment, (3) the fee customarily charged for similar services, (4) the amount involved and the results obtained, (5) the time limitations imposed by the client or the circumstances, (6) the nature and length of the professional relationship with the client, (7) the experience, reputation, and ability of the lawyer performing the services, and (8) whether the fee is fixed or contingent.
Arthur Andersen & Co. v. Perry Equipment Corp.,
The court is required to determine the nature and extent of the services performed, which is typically expressed by the number of hours and the hourly rate.
In summary, we overrule Tisdale’s issues and sustain those of Hagedorn. Thus, the judgment of the trial court is modified to reflect that the cause of action is dismissed with prejudice, and as modified, the judgment is affirmed.
Notes
. Later references to section numbers refer to article 4590i of the Revised Civil Statutes unless otherwise specifically denominated.