in Re Hendrick Medical Center John Frank White, III, M.D. Norman J. Dozier, M.D. And Abilene Anesthesia Group, P.A.
87 S.W.3d 773
Tex. App.
2002
Check Treatment

*1 the child. has behalf to S.E.W. CENTER; MEDICAL In re HENDRICK B.S.W.; incarcerat-

never met he has been III, M.D.; White, Norman John Frank testimony His her birth. ed since before Dozier, M.D.; Abilene Anesthe- J. had contact with the reveals he has no Group, birth. sia P.A. of the child since the child’s mother support He contends his No. 11-02-00148-CV. release; however, child until his no Appeals of Court of custody seek member came forward to Eastland. complains the fur- the child. S.E.W. State plan; study nished no home or service 3, 2002. Oct. however, no for the there was home State rights study. parental mother’s already terminated. there is some evidence S.E.W.’s mother past. child in the

may have cared attempts testified his contact his

S.E.W.

mother been unsuccessful. factor, Holley

Under third S.E.W.’s behavior,

propensity toward anti-social

demonstrated his criminal convictions prison,

and his is evi- behavior while may

dence that he be an emotional or

physical danger to now B.S.W. job

future. S.E.W. has no with which to child,

support purely specula- and it is

tive toas when S.E.W. will be released pa-

from prison. S.E.W. filed claim

ternity paternity registry with the attempted to maintain contact

B.S.W. since his incarceration. factually

The evidence is sufficient to it is in

support the trial court’s

the best of the child terminate interest rights. proved

S.E.W.’s each of State

its and con- required elements with clear S.E.W.’s

vincing evidence. We overrule

final point error. judgment. affirm the court’s

We

Background Facts severely injured Billie G. Newman was in an automobile accident and was taken to Shortly Hendrick Medical Center. after a epidural drip placed thoracic catheter her, she respiratory suffered cardiac family2 brought arrest. The Newman Aris, Bell, Charles K. Charles G. Mi- malpractice action against Hen- Goldman, R. Roby, chael Gwin & Joann Center; N. White, drick John Medical Frank Wilkins, Meador, Edwin Burford & Ry- III, M.D.; Dozier, M.D.; Norman J. and burn, Dallas, Cobb, Crenshaw, R. (collective- David Group, Abilene Anesthesia P.A. Milam, Lubbock, Dupree & appellant. Relators), ly alleging negli- that Relators’ arrest; gence caused the cardiac Barrett, Lydia JoAnn Richard L. Den- major, Newman suffered irreversible brain ney, Barrett, Norman, Denney & Bob damage arrest; as a the cardiac Hanna, Firm, Hanna Matthew E. Law Rit- ultimately and that she died as chie, L.L.P., Asbury Asbury, Abilene, & complications from the arrest. for appellee. required The Newman C.J., ARNOT, Panel consists of and furnish each physician and WRIGHT, J., McCALL, J. provider an expert Opinion expert’s within curriculum vitae voluntarily suit or nonsuit McCALL, TERRY Justice. 13.01(d); the action. Section Bowie Me The issue in this mandamus action is Hospital Wright, morial 79 S.W.3d court, a trial whether that a (June Sup.Ct. 13, 2002); 45 Tex. J. timely-furnished medical expert report American Transitional Care Centers of satisfy requirements of Texas, Inc. v. an “expert report” under TEX.REV.CIV. (Tex.2001). sets forth 4590i, § STAT.ANN. art. & the “expert report” (Vernon Supp.2002), has discretion under requires a claimant to grant plaintiffs a 30- pro furnish each and health care day period for furnishing extension anoth- vider. expert report.1 er majority Because a this court concludes filed a within 13.01(d), discretion extension the deadlines of Section furnish- ing under Section and is not Relators with the Lowery. dismiss the action under Section Dr. curriculum vitae of Brian 13.01(e), deny petition we for a challenged writ of Relators adequacy 13.01(Z) mandamus. provided in Section Holmes, statutory 1. All individually citations are to TEX.REV.CIV. as an heir Estate 4590i, (Vernon § art. Supp. Newman; STAT.ANN. 13.01 Newman, Rocky Ray of Billie G. 2002) unless otherwise noted. individually as an of the heir Estate Billie Newman; Washburn, G. and Brandi Jean in- family, 2. The parties Newman the real in in- dividually as an of the heir Estate Billie G. terest, Newman, Billy consists G. individu- Newman. ally and as an heir and Executor Estate Newman; Gwendolyn of Billie G. Ann Rela- inadequate, for dismissal Because moved under Section 13.01(e) imposed preju- action family’s tors contend dismiss response, the Newman on the trial court to legal duty dice. seeking prejudice filed a motion family’s action with *3 if the trial under Section of discretion a clear abuse that it was Lowery’s report find Dr. court should do Sec- court to so. trial failed when the At the trial inadequate. hearing, was 13.01(e) part: provides Lowery’s report Dr. court found that was failed, (e) for claimant has If a by “expert report” not an as defined Sec- pro- or defendant 13.01(r)(6); and, therefore, the New- vider, of comply to family Relators man had failed to furnish required, the time this section within days of expert report an within 180 shall, of the affected court on the motion attorney their lawsuit. The New- provider, enter physician or health care man that he had mistaken- testified awarding against an order sanctions Dr. ly thought Lowery’s report met attorney: the claimant or the claimant’s 13.01(r)(6) Section (1) attorney’s fees the reasonable an making that he had effort to con- by that of court incurred costs Lowery provide tact Lowery Dr. Dr. defendant; his more detail in before hear- ing. court then (3)the trial of the action of the dismissal 30-day grace period a Newman against that defendant a report complying furnish Relators prejudice refiling. to the claim’s 13.01(d) (r)(6). Granting Section to set A of an that fails grace period 13.01(g), under forth the elements trial court found that the failure definition, not, an an not intentional or the re report.” By inadequate an result of conscious indifference but was failed to port, accident or mistake. The trial not because did with Section court then motion to dis- denied Relators’ days “expert report” within 180 furnish an miss. suit. Whitworth only issue to Mandamus relief 393, 2001, (Tex.App.-Dallas a a of discretion or correct clear abuse that, argue agr.). dism’d Relators pet’n legal duty of a there is violation when malpractice claimant has remedy Epic at adequate law. re Hold 13.01(d) be with Section (Tex. Inc., ings, S.W.2d furnished an cause the claimant Packer, 1998)(orig. proceeding); Walker that “the mandates report, Section (Tex.1992)(orig. pro awarding as .enter an order court shall.. ceeding). need address whether We .the dis against the claimant.. sanctions the trial court committed clear abuse prejudice.” the action.. .with missal of legal duty.3 discretion or a violation of a position Their family be not available family agrees that 13.01(e)mandated a dismiss Lowery’s report Dr. not meet the re cause did (r)(6). court. by the trial prejudice al with quirements tion, (Tex.App.-Texarkana question of 62 S.W.3d 924 we do reach the not remedy orig. proceeding), for discussion adequate have an whether Relators law, Carney requirement for writ mandamus. this In Collom & Clinic Associa- see re Therefore, do challenge mistake, Relators of an result accident or court’s that the Newman fami- grace period shall of 30 ly’s provide adequate “expert failure to permit the claimant report” intentional or the result with that A subsection. motion conscious indifference but was the claimant for relief under this subsection question accident mistake. The shall be considered it is filed whether a mistake of law as to the content any hearing before on a motion report by attorney claimant’s (e) under Subsection constitutes “mistake” under Subsection (Emphasis section. Walker, (g) was the issue in Gutierrez v. The phrase “[n]otwithstanding any other *4 61 (Tex.App.-Corpus Christi provision clearly of this section” refers to 2001, pet’n granted), currently being and is 13.01, provisions all of the in by Supreme addressed the Texas Court cluding provision the found in Section Gutierrez, Walker v. No. (pet’n 01-0841 13.01(e). Therefore, notwithstanding Sub 2002)(set granted submission June (e), section Subsection entitled (g) the 2002).4 October family a 30 day period if acknowledge Relators that earlier the they could show that to fur their failure granted trial court could have the Newman expert nish an report within the deadline family 30-day a extension under Section was not intentional or con 13.01(f) Sec- report, but scious indifference. Whitworth v. Blu 13.01(f) is only available to extend the menthal, supra 400. 180-day period days; to 210 it is not avail- argue family Relators that the Newman able after passed. have not fail did “to a deadline with Blumenthal, supra Whitworth v. (d)” established Subsection because acknowledge Relators also trial a report furnished a complied grant day grace court can a period (d); deadline established Subsection 13.01(g) under Section for furnishing the report just require did not meet report, they argue but 13.01(r)(6). ments of Section 13.01(g) Subsection is available where the claim- (g) “safety enacted serve as a any ant failed to furnish report during the 180-day prevent valve” to period. argument This forfeiture claims ignores phrase through the initial or 13.01(g). of Section Sec- accident mistake that causes 13.01(g)provides: party a to fail to (d). MacMaster, Broom Notwithstanding any provision other (Tex.App.-Dallas 1999, [13.01], pet’n). Fol this if lowing logic, Relators’ a claimant is failed to a unable deadline estab- (d) “safety to utilize the valve” of Subsection lished Subsection of this section pro hearing (g) and after the claimant made an effort to court finds adequate “expert report” vide an but failure the claimant the claim- attorney ant’s “safety intentional or the able to utilize the valve” any result of conscious report. indifference but claimant failed to furnish Un- According petitioner's to the brief inadequate. petitioner in Walker it is is not Gutierrez, supra, but, the trial court denied the urging ground supreme to the this court request 30-day grace period claimant's for a instead, arguing that a mistake of law as to ground urged by express on the Relators case, (g) that Subsection is not available 13.01(g). a "mistake" under Section where the claimant has report” even 13.01, reading der Relators’ first found their though the trial court expert report is claimant whose furnished under Subsections be inadvertently missing a who erro- page or (d) though the initial and even wrong neously furnishes referred to (g) to add the miss- cannot use Subsection expired. had subsequently furnish the cor- ing page or expert report. rect Ruling This Court’s legislature If meant for Section for writ mandamus petition Relators’ only apply where is denied. report, failed to furnish it would simple matter to have Section J., WRIGHT, dissents. JIM R. read: “If a claimant has failed WRIGHT, J., dissenting. R. JIM deadline es- with[in] [furnish] (d).” (Emphasis tablished petition and hold I would “failed com- abused its discretion when ply with deadline established Subsec- 30-day ex- *5 (d)” they provided tion when Relators with 13.01(g). I would tension under Section report just they inadequate as would 13.01(g) applies only hold that Section they comply” “failed to report has been filed within the any report. 13.01(d). in deadline established Section family did not fail to meet a in phrasing “failed to comply” both deadline; timely report, (e) is A and similar. inadequate. Filing an in- report was shall, motion, upon dismiss with as report is not the same not adequate prejudice an action pursuant to Section filing report. 13.01(e) failed, “[i]f provid reasoning Generally, agree with the er, (d) comply with Subsection to Fitzgerald in his dissent in Whit Justice (Em required.” section within the time Blumenthal, supra. v. worth phasis phrasing the failure 13.01(d) categories. two contains broad (d) comply “to ... with Subsection within (d) First, must addresses what Subsection (e) required” the time in found Subsection it and then addresses when be done “to comply and the failure deadline 13.01(e) instructs must be done. Section (d)” in established Subsection found happens as to the claimant fails us what (g) interpreted 13.01(d). Subsection should be con comply with Section to sistently. See Whitworth categories to both of Sec speaks supra opinion). 409 (concurring at As we and informs us Wolf, 13.01(e): in pointed Richburg out comply with Section of failure (Tex.App.-Eastland pet’n comply ... has failed “If den’d), require failure to with the within this section (r)(6) may ments ... court shall.” time added) Thus, from either failure to furnish there are two (Emphasis stem (e): (1) report inadequate of an to com or the failure parts Subsection (2) within report. expert report ply not required. the time the trial court had discre- We hold that parts to Subsec- grant there are two tion under Section (e), (g) so is written days for the Newman Subsection grace period of 30 broadly. (g) Subsection is limited to fail- no at in report Nothing all. the statutes ure “to with a deadline established I agree dictates result. with Justice (d).” by Subsection There is no mention Fitzgerald’s statements: qualities report of the in [N]othing the Act suggests that inad- just temporal (g), aspects, the deadline. equate reports are deemed never to The adequacy is addressed in have existed. statute, (l): part another Subsection usage itself, In common in the Act A court shall a motion challeng- there is a difference between work that ing adequacy of an expert report inadequate work has never court, appears if it to the been done. I would conclude that the hearing, that the not repre- does Legislature intended the definition sent good faith effort (r)(6) report” sim- subsection the definition of an ply to set forth the standards for subsection of this section. adequate expert report, not consign Therefore, suggested by as Justice Fitz- inadequate expert reports to veritable gerald, the timeliness addressed Sub- non-existence. (g) adequacy addressed This analysis should not con- raise (l). Subsection If a claimant has missed a disparate cerns about treatment of dif- all, deadline then ferently-situated i.e., plaintiffs, those provisions he should avail himself of the who file no opposed to those (g). If a claimant furnishes an inadequate report who file an in a report, then he should truth, fashion. Legislature Texas *6 it periods correct within the time set forth legislative has created a that scheme (d): days, plus 30 days if competing balances the of all concerns shown, good cause or with such exten- plaintiffs in particu- and all defendants agreed upon by parties. sions as the respect. lar manner that we Ac- must opening phrase The of Subsection (g) cording scheme, example, that does state: “Notwithstanding other plaintiff early who misses an dead- provision of this section [Section 13.01].” line accident or mistake receives However, phrase that is followed the to cure er- her blameless limiting words: “[I]f ror. But guaran- the defendant still with a deadline.” I would hold relatively speedy teed initial protec- that introductory phrase the controls a expert tion: is found within the situation wherein a claimant has filed a grace period an place imprima- who will medical report, sufficient but he files it claim, on tur the plaintiff’s then that If late. he can show that the failure to file claim be dismissed. This threshold the on time was not intentional process exemplifies Legislature’s ef- the result of conscious indifference but was procedures forts to craft that would mistake, the result of accident or then he reduce, quickly identify, and thus frivo- grace period is entitled to a 30 days Palacios, lous lawsuits. See notwithstanding pro- what subsection (citing at 876-77 COMM. ON HOUSE Thus, begins vides. the clause which PRAC., ANALYSIS, CIV. BILL TEX. “[n]otwithstanding” surplus- is not mere (1995)). Leg., H.B. 74th R.S. purpose, part, but age; directly its (d). related to Subsection supra Whitworth v. Additionally, an and the passed would not treat inade- quate report being expert report. as one and the same claimants had not an that the require Centers, of mandamus the writ American Transitional one dismissed under family’s suit be defendants, claim. Newman moved dismiss 13.01(e). or non- Instead claim, their the claimants moved suiting file in which to

for an extension of time granted

expert opinion. The trial court motion, the claimants filed a re-

port doctor. American prepared filed another motion

Transitional Centers dismiss, claiming that adequate report. The trial court

not an dismiss, motion because, appeals

court of reversed ROGERS, Appellant, Ray Alan as it evaluating the trial court’s decision decision, summary it judgment would a good report represented found

faith effort to with the statute. Texas, Appellee. STATE supreme court of court reversed the No. 06-01-00202-CR. and, appeals doing, in so held proper of dis- review was under abuse Appeals of Court of upon standard rather than a sum- cretion Texarkana. Further, mary judgment standard.

Palacios court held that trial court 6,May 2002. Submitted itself to should look 8,Oct. Decided good report represents determine faith effort definition of (r)(6). If not, finds does then *7 challenged

the trial court must dismiss prejudice.

claims with In the words

Palacios court: statutory time

And because passed made [that

here that determination inadequate],

report was preju-

required the to dismiss with against claims

dice Palacioses’ Transitional.

American

American Transitional Care Centers of

Texas, Palacios, supra Inc. interpretation that this meets believe Act, being purposes stated reduce, identify, thus frivo- “quickly

lous See American Transition- lawsuits.” Inc.

al Care Centers of conditionally

supra at 877. I would