*1 appellant jority thus concludes was
entitled to instructions on the defenses of ordinary apparent danger self-defense him jury in the event that the would find only guilty pursu- misdemeanor assault ant to the lesser included offense instruc- it appellant tion to which determines that was also entitled. contrary, appellant
On because not entitled to an instruction on misde- assault, above, meanor be- as discussed ordinary apparent cause self-defense aggravated are not as- danger defenses deadly weapon, sault with a and because appellant there was no evidence that apparent deadly threatened real or force, he was not entitled instructions apparent danger.
on self-defense or Therefore, appellant’s first and third overruled,
points of error should be judgment of the trial court should be affirmed.
Bobby Carolyn HART and
Hart, Appellants, Lee Robert WRIGHT Hugu Memorial Medical Center a/k/a ley System Health Adventist a/k/a System/Sunbelt, Inc., Appel
Health lees.
No. 2-99-234-CV. Texas, Appeals Court of Fort Worth. April 2000. Rehearing May Overruled *3 Pitzer,
Danny Arlington, Ap- Duane for pellant. Moore, P.C., & M. An-
Wallach Jennifer drews, Wallach, Wesley D. T.D. Michael Worth, Watson, Myers, Caraway, Fort L.L.P., Midktff Harrington, Luningham, & Worth, Harrington, Ap- Brooks Fort for pellees.
OPINION HOLMAN,
DIXON W. Justice.
I. BACKGROUND January Appellant Bobby On backyard. began Hart fell in his He flushed, sweating, experienced became arms, neck, pain Carolyn and chest. Hart drove Mr. Hart to Memorial (Huguley) he was Medical Center where emergency admitted room. Mr. feeling began vomiting Hart described “something sitting like on his chest.” x-rayed, neck and chest were Mr. Hart’s and a cat ordered. Mr. Hart was scan was day, and released later that given shot morning, he was following admit- but (Harris). An exam- Hospital ted Harris indicated that he had ination and tests myocardial infarc- suffered an inferior wall catheterization revealed a tion. Cardiac anterior de- complete occlusion of left coronary artery. scending filed suit on Appellants treating doctors against Huguley and Appellants alleged Appellees Huguley. in their treatment and care Hart, Deceptive of Mr. violations of (DTPA), Act and breach Trade Practices II. APPEAL dealing. faith and fair Ms. Hart ISSUES ON damages the loss also sued to recover from in their first issue Appellants contend advice, counsel, companionship, of support, by striking that the trial court erred stemming Appellees’ and consortium from expert report by dismissing Maewal’s anguish and for mental alleged negligence their health care claim. In their second damages. issue, insist that the trial court by dismissing their fraud and breach erred filed Appellees motions dismiss with duty fiduciary claims. prejudice pursuant Appellants’ failure to required by file their III. EXPERT REPORT Ann.
Tex.Rev.Civ.
Stat.
OF DR. MAEWAL
13.01(d)(1) (Vernon
Supp.2000). Appel-
*4
responded by offering
lants
a
from
trial
We review a
court’s order
Maewal,
Dr. Hrishi
purported
which
dismissing
prejudice pursuant
a case with
4590i,
comply with
article
section
13.01(e)(3)
4590i,
to article
section
under
13.01(d)(1). Appellants then filed a motion
Tice,
an abuse of discretion. See Wood v.
to extend time to file an
affidavit.
829,
(Tex.App.
988
830
Anto
S.W.2d
—San
15, 1998,
denied);
Elboar,
On October
the trial court held a
1999,
nio
Estrello v.
pet.
hearing
Appellees’
754,
on
motions to dismiss
(Tex.App.
965 S.W.2d
758
—Fort
1998,
and found that
pet.).
had failed
Worth
no
But see Palacios v.
4590i,
Ctrs.,
report pursuant
furnish a
American
4
to article
Transitional Care
13.01(d)
857,
(Tex.App.
in timely
[1st
section
a
manner. How- S.W.3d
860
—Houston
filed)
1999,
ever,
(applying summary
Dist.]
the trial court also found that under
review,
4590i,
judgment standard of
which we
article
13.01(g), Appellants
section
follow).1
decline to
An
abuse
discretion
provided
had
sufficient
evidence of
occurs when a trial court acts in an unrea
permit
cause to
filing
the late
of Dr. Mae-
manner,
arbitrary
or when it
sonable
thus,
report;
wal’s
granted Ap-
court
any
acts without reference to
guiding prin
pellants’ motion to extend time to file the
Bank,
ciples. See Beaumont
N.A. v. Bul
expert affidavit. The
postponed
court
its
ler,
223,
(Tex.1991);
806
226
Down
S.W.2d
ruling
Appellees’
on
claims that Dr. Mae-
Inc.,
Aquamarine Operators,
er v.
701
wal’s
was insufficient under article
(Tex.1985),
238,
241-42
de
cert.
13.01(r)(6).
nied,
1159,
2279, 90
476 U.S.
106 S.Ct.
10, 1998,
On December
the trial court
(1986).
contrary,
L.Ed.2d 721
To
hearing
held a
on Appellees’ motion to abuse of discretion does not occur where
strike Dr. Maewal’s
it in
and denied
the trial court bases its decision
con
addition to their
Appel-
motion to dismiss.
evidence,
flicting
Kirkpatrick
see
v. Memo
lees filed another
asking
motion
the court
(Tex.
762,
rial
776
Hosp., 862 S.W.2d
to reconsider the motion. The court re-
1993,
denied),
App.
writ
or where
—Dallas
versed itself and found that Dr. Maewal’s
of a
there
some evidence
substantive
report was insufficient
a matter
of law
character
probative
support
Appellants’
and dismissed
Holley
entire cause of
trial court’s decision. See
v. Hol
703,
action.
ley,
(Tex.App.
864 S.W.2d
—Hous
provide
1. A claimant under article 4590i must
under an abuse-of-discretion standard. See
opposing parties
expert reports
Gillum,
one or more
v.
Stites
days
filing
within 180
after
the claim. See
denied).
App.-
are
Worth
writ
We
—Fort
4590i, 13.01(d)(1).
§
Ann. art.
Tex.Rev.Civ.
Stat.
by
plain language
bound
of section
Failure to do so can result in the dismissal of
13.01(e)
meaning
and the common
13.01(e)(3).
the claimant’s case. See id.
Therefore,
term "sanction.”
we will review
13.01(e) specifically
Section
describes
a
such
Appellants’
issue under
abuse-of-discretion
against
a
claim-
dismissal as
"sanction”
standard.
typically
ant. See id. Sanctions are
reviewed
denied).
practice
I am
licensed to
writ
a physician
ton
We
[1st Dist.]
Texas.
medicine
the State of
therefore examine
evidence
must
most favorable to the trial court’s
light
practicing
I am currently
medicine
order.
medicine on
practicing
and was
22,1996.
Liability
The Medical
and Insur
(the Act)
I
am
certified
Internal Medi-
Act
was en
board
Improvement
ance
cine,
Disease,
Legislature
Pulmonary
Cardiology,
curtail
acted
the Texas
physicians
Medicine.
against
claims
and re
Critical Care
frivolous
providers.
Horsley-
health care
lated
Bobby
I
Hart
examined
Harris
Layman
Angeles, 968
Hospital on
Methodist Fort Worth
Janu-
(Tex.App.—Texarkana
pet.).
Un
23,1996.
ary
Act,
must
plaintiff
provide
der the
each
history
Based on
obtained from
defending physician
provid
or health care
family
members
expert reports, along
er
one or more
along
supporting
with the
evidence of
vitae,
not later
the 180
curriculum
than
which
laboratory evaluation
showed
day
the date on which a health care
after
U/L,
elevated creatine kinase of
liability action is filed. See Tex.Rev.Civ.
and %
in-
ng/ml
CK-MB 219.7
relative
13.01(d)(1).
4590i, §
If
Stat. Ann.
*5
along
a.m.
an
dex 11.9 at 10:41
with
plaintiff
comply
provision
fails to
with this
an inferior
EKG which shows
infarction
a
seeking
and the defendant files motion
Q-waves, my expert opinion,
in
Mr.
with
sanctions, a trial court has no discretion
Hart
an acute
experiencing
myocar-
dismissing
and must enter an order
the
approximately
dial
at
5:00
infarction
13.01(e)(3).
§
See id.
prejudice.
case with
22,
a
p.m.
patient
1996 while
in
emergency
the
room at
Me-
expert
an
report
But where
is ten
morial Hospital.
opposing party,
party is
dered to the
the
challenge the
permitted
report’s
to
ade
analysis,
the
Dr.
Based on
above
§
must
quacy.
id.
The court
See
13.01©.
Wright,
treating physician Hugu-
the
court,
appears
if it
the
grant the motion
to
ley
Hospital,
Memorial
and Huguley
conducting hearing,
report
a
the
after
that
Hospital departed
Memorial
from the
good
a
represent
does not
faith effort
acceptable
diag-
standard of care for the
of an
requirements
expert report.
the
meet
nosis,
care, and treatment of a
medical
any
An
as
See id.
defined
myocardial
acute
infarc-
patient with an
by
expert
provides
an
that
a
written
tion.
summary
expert’s
fair
as of
opinions
of the
that even
argue
though
Appellants
(1)
report regarding:
the
the
the
date of
Dr.
does not include all of
Maewal’s
care; (2)
man
applicable
of
standard
by
required
information
by
ner
the care
defen
in which
rendered
13.01(r)(6),
satisfies the defi
it nonetheless
care;
to meet the standard of
dant failed
report.
disagree
nition of
We
expert
(3)
relationship
the causal
between
report does
ad
because Dr. Maewal’s
not
harm,
injury,
or dam
that failure and
care, deviation from
dress a
of
standard
13.01(r)(6).
ages
See id.
claimed.
standard,
that a deviation from the
or
re
offered this written
damages.
or
injury
standard caused
in
Maewal
affidavit form to
port of Dr.
The
concludes that Mr.
report merely
id.
obligation
Act:
their
under the
comply with
symptoms
of
signs
Hart demonstrated
place
a time and
K.
I am a heart attack at
Hrishi
My name is
Maewal.
connection. For
majority,
which Dr.
had no
age
I have never
Maewal
over
expert,
qualify
felony
a
crime of
Maewal to
or a
been convicted
knowledge
he had
things
report had to
and I am in all
show
turpitude,
moral
of care
of the
standards
for
accepted
this
to make
affidavit.
qualified
emergency
physicians
room
injury
care and treatment of the
that the
diagnosis,
that it
involved,
employees
hospital
applicable
how the
standard
not
breached,
responsibility for
accept
con- would not
alleged
and how the
breach
admin-
physicians
treatment
those
Appellants’ injuries
or dam- medical
tributed
(6).
13.01(r)(5),
in
room.
emergency
§§
a
istered
its
ages. See id.
While
a
party
proof,
need not marshal all of its
for mal
physician
A
is liable
preparing
faith effort
good
a
there is
practice
negligence only
or
when
minimum,
must,
attempt
at a
physician-patient relationship. See Wilson
found
incorporate
requirements
the three
(Tex.
Winsett,
232-33
v.
13.01(r)(6). Here, the
in section
concluso-
denied).
Addi
App.
writ
—Amarillo
ry report
is not the
faith effort re-
liability for
tionally,
physician
a
has no
issue
quired by the statute. We overrule
physician
unless the
malpractice
medical
one.
duty.
Pope,
v.
See St. John
breaches
(Tex.1995).
Breach
AND
IV. FRAUD
BREACH
fiduciary duty by misrepresentation is
a
OF FIDUCIARY DUTY
deception, and
simply a form of fraud and
Although
plaintiff may
a
assert
ex
although fiduciary relationship might
a
claima
for common law fraud that is not
physician
patient
spe
ist between a
governed
article
see Shannon
circumstances,
description
cial
Law-Yone,
duty
patient
to a
physician’s disclosure
denied),2
App.
Worth
Tex
—Fort
only duty
the Act
to disclose
addresses
have
repeatedly
as courts
held that
the risks and hazards of a
plaintiff
cannot recast
health care liabili
surgical procedure
or
before the
medical
ty
language
claim in the
of another cause
undergo it.
patient consents to
Tex.
*6
pur
of action to circumvent the statute’s
4590i, §
art.
6.05.
Ann.
Rev.Civ. Stat.
Inst.,
pose.
Savage
Psychiatric
965
any
Appellants have not cited
case law
745,
(Tex.App.
S.W.2d
751
Worth
—Fort
their conten-
statutory
support
or
law to
1998,
denied).
In
wheth
determining
duty
Wright
fiduciary
tion that Dr.
had a
so,
er a
plaintiff
attempted
has
do
we
in
description
of the character or
asserted
underlying
review the
nature of the cause
pleading
appeal.
their
and their
on
brief
Rhodes,
of action. See Sorokolit v.
889
allegations
Appellants’
of fraud and breach
(Tex.1994).
here,
If,
242
S.W.2d
is
fiduciary duty by misrepresentation
physi
the cause of action
on
is based
recasting
of their
impermissible
but
accepted
cian’s breach
standard of
alleged
malpractice.
medical
claim for
care,
nothing
medical
the cause of action is
at 450.
Gormley,
S.W.2d
claim,
more
a
care liability
than
health
no
a plaintiff
matter how
labels it. See Gorm
they
also assert
that
Appellants
Stover,
ley v.
Forrester,
Mark
were defrauded when
1995); Savage, 965
at 751.
S.W.2d
Hu
adjuster acting
insurance
on behalf of
allegations
guley,
In addition to their
of medi-
told them that
wanted
fraud,
parties
reach a
with them. The
negligence
Appellants
cal
assert
settlement
To
part
agreed
their cause of action arose
never
on settlement
terms.
Wright
fiduciary
a
a claim for common-law fraud or
because Dr.
owed them
establish
show
duty
misrepresentation,
plaintiff
and breached it.
maintain
a
must
misrepresentation
that a
Huguley’s
that when Mr. Hart entered
material
it
or
by person
a
who knew was false
emergency
room on
made
recklessly
misrepresentation
him
Wright
fiduciary duty
had a
to inform
made
us,
plaintiff
acceptable
of care. See Shan-
case
ed the
standard
2. Unlike the
before
non,
allege
Shannon did not
that his health care
person injured act in did rebanee and was LIVINGSTON, dissenting filed J. Savage, as a result. See opinion. concurring LIVINGSTON, Justice, TERRIE dissenting concurring. carefully reviewing Appel
After
petition,
lants’
it is clear that their breach
majori-
I respectfully dissent from the
claim,
fiduciary duty
stemming
from a
issue,
ty’s
appellants’
conclusion as to
first
emergency
non-disclosure of the status of
join
majority’s
but
conclusion
physicians,
simply
room
a claim result
Therefore,
their second issue.
I would
accepted
a
ing from breach of the
standard
appel-
reverse the trial court’s dismissal of
factual
independent
of care. There are
malpractice
lants’ medical
claim but affirm
allegations
than
supporting fraud other
its dismissal of their claims
on fraud
based
malprac
those that relate to their medical
fiduciary duty.
and breach of a
any
no proof
tice claim. There is
made,
false,
that it
representation was
Expert’s Report
is an
What
by Appellants.
or that
it was rebed on
Article
Under
4590i?
Although Appebants argue that
al
majority,
As noted
leged misrepresentation was an affirmative
13.01(d)(1)
requires
of article 4590i
a claim-
omission,
support
this is insufficient to
provide opposing parties
ant to
finding
duty
speak,
of fraud
absent
filing
days
within 180
and we do not find one here.3 See Smith
Ann. claim. See Tex.Rev.Civ. Stat.
Communities, Inc., 585
v. National Resort
(Vernon
13.01(d)(1)
4590i, §
Supp.2000).
(Tex.1979).
As for the
If a
provide
healthcare claimant fails to
misrepresentations of Mark For
alleged
may
such a
the trial
dismiss
report,
court
rester,
faded to
Appebants have
estabbsh
13.01(e)(3).
the claimant’s suit. See id.
the statements were false and that
agree
majority
I
with the
that a trial
Whüe
Moreover,
they relied on them.
Appel
on this basis
court’s dismissal of
claim
damages
lants seek to recover the same
*7
and there-
should be treated as
sanction
babibty.
ab
under
theories of
fore should be reviewed under an abuse-of-
claim,
malpractice
Without their medical
standard,
agree
discretion
I do not
with
Appebants would have no claim for fraud.
v.
majority’s
the
conclusion. See Estrello
un-
Appellants’ attempt
Elboar,
to avoid dismissal
(Tex.App.—
965 S.W.2d
758
4590i,
by
section 13.01
charac-
der article
pet.).
Fort Worth
untenable.
terizing their claims
fraud is
Here, appebees’
appel-
motion to strike
450;
Gormley,
Savage,
Tex.Rev.Civ. Stat. (r)(6). 13.01(e)(3),ffi, § V. CONCLUSION 13.01(r)(6) the medical by trial court did not err babib- Because the Section report an as: ty expert causes of action act defines dismissing Appellants’ party representation upon by other speak may fiduciary relied the duty to arise when a 3. A and parties, party later finds out to be untrue relationship see Stone that the exists between change in events. See Corp., to reveal this Lawyers Title Ins. fails Co., Susanoil, 1976), Inc. v. Continental Oil (Tex.Civ.App. Corpus Christi in aff'd — (Tex.Civ.App. Antonio part part, S.W.2d 183 & rev'd in —San n.r.e.). 1977), party writ ref d makes a material or when negligent in The Defendants were by expert pro- report a written in Plaintiff the follow- treatment of summary expert’s their vides a fair ing respects: report as of the date of the opinion care, regarding applicable standards of proper to take a medical failing 1. In manner in care rendered which the history. by physician provider or healthcare Plain- failing to treat negligently 2. In standards, and the failed to meet his arm symptoms for the [of] tiff failure relationship causal between that pain. and chest harm, injury, damages and the or and failing perform In to EKG 3. claimed. tests, laboratory indicat- as would be history and condition. ed 13.01(r)(6). § Additionally, Id. investigate probable In to all failing 4. 13.01(j)provides: neck, arm, and causes of Plaintiffs Nothing in this section shall be con- vomiting. pain, chest nausea and require filing to of an expert strued and failing promptly diagnose 5. In report regarding any issue other than an myocardial treat the infarction. relating liability issue or causation. releasing 6. In Plaintiff to return home §Id. properly testing him for all without 13.01®. symptoms. (Z) And param- subsection sets forth the releasing In Plaintiff return home opposing might eters under counsel which in pain. while he was acute challenge the adequacy re- probability were in all 8. Defendants port. respects other addi- challeng- A grant court shall a motion foregoing tion to the above ing adequacy expert report of an right Plaintiffs reserve the to amend court, only if it to the after appears pleadings conform to the their hearing, repre- that the does not evidence. comply sent a faith effort to with backdrop provides This information the definition of an report may be viewed. against which (r)(6) this Subsection section. Second, enough reveals infor- 13.01(Z). majority agrees Id. The im- patient that the mation to show appellees’ challenge adequacy to the of the properly diagnosed report because it “does not address a stan- diagnose departed from an failure to care, standard, dard of deviation from of care. The appropriate standard or that a deviation from the standard knowledge personal it was shows based injury damages.” caused or there While expert’s interview of the are several cases that deal with the failure evaluated, family, laboratory tests run and *8 timely expert report, to file an there are along explaining with an not EKG. While relatively few cases that deal with the care, expert of the specific the standard adequacy report light of the of subsec- was clearly that the standard states (Z)’s comply. good attempt tion faith to breached. In Palacios v. American Transitional expert report I that this shows believe Ctrs., Inc., First, of the the Houston Court good comply. faith effort to Care reviewing faced with ade Appeals in a but report being is not filed vacuum expert’s report. to an quacy challenge that against backdrop pleadings the of the (Tex.App. to 859-60 allegations set forth the basic factual —Houston filed). reversing In Dist.] care [1st a deviation from a standard of show plaintiffs’ dismissal of the injuries. claim the trial court’s that resulted court, claims, the appellate applying the original petition: in their nied). filed an affidavit Plaintiffs counsel of in judgment standard review summary discretion, noted that the claim that these of of her client’s support stead of abuse 13.01(r)(6) de expert report was faith good “no” letters were “yes” and in the suits signed to weed out frivolous Id. Her comply to with the statute. effort controlling The early stages litigation. stated, however, that it merely affidavit provided report not whether the issue is the oversight not to be aware of was an summary” “fair but whether requisite the expert report and that she definition faith effort at good showed a report the id. at consciously indifferent. See was not 13.01(r)(6)’srequirements. meeting section appeals affirmed the The court court con appellate The See id. at 862. expert that the letters and held dismissal report the cluded that the statements on attempt comply to good not a faith were to meet section good faith effort were statutory expert definition of an with the 13.01(r)(6)’s in that it was requirements id. report. See and stated hospital toward the directed the actions fell below hospital’s clearly identifies Here the at 861. of care. See id. accepted standard training; lists expert; lists his medical hospital noted that a should report The certifications; results identifies the lab his patient for a who precautions have taken that he administered to and other tests yet hospital bed and suffered fell from his reviewed; hospi- patient and identifies injury when he fell due to a second brain directed; and, complaint tal to which the id. Because history falling. See treating physician and identifies the not prevent his fall were precautions acceptable fell below the standard his care not of care had been taken the standard myocar- with an acute of care for a met. id. at 863. enough to I this is dial infarction. believe has Appeals Antonio Court of The San give a fair sum- good faith effort be standard applied an abuse-of-discretion report This mary expert’s opinion. of the of a health- review of a dismissal appellate reports than the goes much further inadequate claim to an liability care due or in Tibbetts and is Schorp struck in Baptist expert report. Schorp light In like the in Palacios. more Sys., Mem’l Health standard, I would of an abuse-of-discretion In pet.). Antonio App.—San at- was a faith hold that the healthcare claim was Schorp plaintiffs summary would a fair tempt give “anonymous” report dismissed because abused its hold the trial court therefore qualifications the name and failed to state and dis- striking discretion in attach the re- expert and failed to In healthcare claim. missing appellant’s Thus, the court quired curriculum vitae. majori- agree I with the respects, all other way to determine there was no reasoned ty opinion. quali- plaintiffs whether id. at 732. fied. See th case, Houston yet
In another trial court’s upheld a Appeals Court of letters or “éxpert to strike two decision failed to noting that the letters reports” drafting the letter but who was even show *9 an ex requesting a letter appeared be or “no” to marking “yes” opinion by pert the defendant of whether question Tib plaintiff. care of the Gagliardi, 2 S.W.3d betts v. th de App. [14 Dist.] —Houston