Lead Opinion
delivered the opinion of the Court,
Appellate courts cannot afford to grant interlocutory review of every claim that a trial court has made a pre-trial mistake. But we cannot afford to ignore them all either. Like “instant replay” review now so common in major sports, some calls are so important — and so likely to change a contest’s outcome — that the inevitable delay of interim review is nevertheless worth the wait.
Although mandamus review is generally a matter within our discretion, our place in a government of separated powers requires us to consider also the priorities of the other branches of Texas government.
Four years ago, this Court denied several petitions seeking mandamus relief when the statutorily required reports were allegedly inadequate. The courts of appeals have disagreed since then whether this action means that mandamus review is never available in such eases — several concluding that it does,
I. Background
The relator hospital, McAllen Medical Center, granted credentials to Dr. Francisco Bracamontes to perform thoracic surgery at the hospital. Dr. Bracamontes got his medical education in Mexico, was licensed to practice medicine in Texas, and had completed a three-year fellowship at the Texas Heart Institute in Houston. But he was not board certified in thoracic surgery, as only physicians who have completed residencies at accredited U.S. hospitals are eligible for such certification.
In 1999, competing mass-tort cases involving treatment by Dr. Bracamontes were filed — one as a class action,
The hospital now requests mandamus relief in this Court. To be entitled to such relief, a petitioner must show that the trial court clearly abused its discretion and that the relator has no adequate remedy by appeal.
I. Clear Abuse of Discretion
A. Negligent Credentialing
In her initial reports, Dr. Brown addressed a single claim against the hospital: that it had been negligent in “hiring, retention and supervision of Dr. Francisco Bracamontes.” We have held that such claims are health care liability claims.
On this record, the plaintiffs have not established Dr. Brown’s qualifications. “The standard of care for a hospital is what an ordinarily prudent hospital would do under the same or similar circumstances.”
Moreover, “a negligent ereden-tialing claim involves a specialized standard of care” and “the health care industry has developed various guidelines to govern a hospital’s credentialing process.”
As the plaintiffs’ only reports supporting the credentialing claims against the hospital were submitted by a doctor who was not qualified for that purpose, the trial court committed a clear abuse of discretion by concluding these reports were adequate.
B. Other Causes of Action
In addition to their credentialing claim, the plaintiffs pleaded that Dr. Bra-camontes was the hospital’s agent, and thus was vicariously liable for his negligence. This claim is viable only if the
But they do argue that even if then-expert reports were inadequate, dismissal would be improper as to their fraud, fraudulent concealment, civil conspiracy, and misrepresentation claims as these do not involve health care.
Finally, the plaintiffs asserted that the hospital advertised all its heart surgeons as board certified, and sought economic damages “because Dr. Braca-montes performed cardiac surgery when he was not qualified as represented, and the Defendants failed to provide the promised quality of medical services.” “Health care liability claim” does not include claims unrelated to a departure from accepted standards of medical care, health care, or safety.
A person cannot avoid the statutory expert-report requirements by artful pleading.
III. No Adequate Remedy by Appeal
Whether a clear abuse of discretion can be adequately remedied by appeal depends on a careful analysis of costs and benefits of interlocutory review.
• forcing parties to trial in a case they agreed to arbitrate;25
• forcing parties to trial on an issue they agreed to submit to appraisers;26
• forcing parties to a jury trial when they agreed to a bench trial;27
• forcing parties to trial in a forum other than the one they contractually selected;28
• forcing parties to trial with an attorney other than the one they properly chose;29
• forcing parties to trial with an attorney who should be attending the Legislature;30 and
• forcing parties to trial with no chance for one party to prepare a defense.31
In each of these cases, it was argued that no harm would come from the trial— perhaps the case would settle, and perhaps fee and interest awards could remedy the expense and delay of trying the case twice. But in each case we granted mandamus relief. Some fee and interest reimbursements are uncollectible, and some sunk costs (such as time taken from other work) are unrecoverable regardless. Further, a legal rule that no harm could possibly accrue to anyone so long as the attorneys get paid to try the case twice appears at least a little self-interested.
Of course, mandamus is generally unavailable when a trial court denies summary judgment, no matter how meritorious the motion. But parties are not “entitled” to summary judgment in the same way they are entitled to arbitration, their chosen attorney, or an expert report like those here. Summary judgments were unknown at common law,
Here, the Legislature has already balanced most of the relevant costs and benefits for us. After extensive study, research, and hearings, the Legislature found that the cost of conducting plenary trials of claims as to which no supporting expert could be found was affecting the availability and affordability of health care — driving physicians from Texas and patients from medical care they need.
The plaintiffs point out that when the Legislature mandated interlocutory review of expert reports in 2003, it did not make those procedures retroactive.
For many of the same reasons, we acknowledge that mandamus review should not be granted in every pre-2003 case. The statute was intended to preclude extensive discovery and prolonged litigation in frivolous cases; review by mandamus may actually defeat those goals if discovery is complete, trial is imminent, or the existing expert reports show a case is not frivolous. But if the legislative purposes behind the statute are still attainable through mandamus review, Texas courts should not frustrate those purposes by a too-strict application of our own procedural devices.
Applying those principles here, we hold that appeal would not be an adequate remedy in this case. This appears to be precisely the kind of case the Legislature had in mind when it enacted the expert report requirements. The 224 patients initially involved in this consolidated suit had nothing in common other than their doctor. The plaintiffs assert no precedent for consolidating hundreds of malpractice claims by different patients with different health problems and different courses of treatment; their only explanation is that they wanted to save money on filing fees. The hospital promptly objected to the plaintiffs’ expert reports, but the trial judge refused to rule on the objection for four years, even though the hospital repeatedly reminded the judge and asked for a ruling in the interim. Meanwhile, the hospital’s attorneys had to attend numerous docket calls and status conferences, and moved for summary judgment against 200 plaintiffs whose claims were barred by limitations — motions the trial court granted, but which the hospital should never have had to file. Unquestionably, the hospital could have avoided significant expense and delay had the trial court followed the law as set out in the statute; unquestionably, the hospital will continue to incur costs and delay in the future if we deny relief today. Accordingly, we hold the hospital has shown it has no adequate remedy by appeal.
This holding is not (as the dissent argues) a sudden departure from Walker v. Packer,
We mentioned this “more lenient standard” in Walker, but found it unworkable as it “would justify mandamus review whenever an appeal would arguably involve more cost or delay than mandamus.”
Nor are we impressed with the dissenters’ claim that strict adherence to traditional mandamus standards will signal an end to effective interlocutory review for some parties or classes of litigants. There are many situations where a party will not have an adequate appellate remedy from a clearly erroneous ruling, and appellate courts will continue to issue the extraordinary writ.45
In describing when an appeal would be “inadequate,” we listed several situations “[i]n the discovery context alone” that “come to mind”:
• when disclosure of privileged information or trade secrets would “materially affect the rights of the aggrieved party”;
•when discovery “imposes a burden on the producing party far out of proportion to any benefit that may obtain to the requesting party”;
•when a “party’s ability to present a viable claim or defense at trial is vitiated or severely compromised by the trial court’s discovery error”; and
• when “the missing discovery cannot be made part of the appellate record ... and the reviewing court is unable to evaluate the effect of the trial court’s error.”46
By mentioning these instances only as ones that “come to mind,”
•when a trial court refused to compel arbitration;48
• when an appellate court denied an extension of time to file an appellate record;49
•when a trial court refused to compel discovery until 30 days before trial;50
• when a trial court denied a special appearance in a mass tort case;51 and
• when a trial court imposed a monetary penalty on a party’s prospective exercise of its legal rights.52
The problem with defining “inadequate” appeals as each situation “comes to mind” was that it was hard to tell when mandamus was proper until this Court said so. So almost four years ago we tried to de
The facts in this case do not involve delay and expense alone, as the dissent alleges. The Legislature determined that cases like this one were rendering health care unavailable or unaffordable in areas of Texas like the one where this ease was filed. The Legislature’s insistence that plaintiffs produce adequate expert reports is almost as old as this Court’s attempt in Walker to define adequate appeals.
IV. Dismissal or Amendment?
Finally, the plaintiffs argue that if mandamus relief is granted, they are still entitled to seek an additional 30-day “grace period” from the trial court to amend their expert reports. Under the facts and statute at issue here, that option is not available.
Unlike the current statute, the statute applicable before 2003 allowed a grace period to correct inadequate reports only if the inadequacy was the result of an accident or mistake:
Notwithstanding any other provision of this section, if a claimant has failed to comply with a deadline established by Subsection (d) of this section and after hearing the court finds that the failure of the claimant or the claimant’s attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection.55
In a motion filed the morning of the hearing on their reports, the plaintiffs requested such an extension for two reasons. First, they sought an additional 30 days to get the medical records of 11 plaintiffs, none of whom remain in the case. And as negligent eredentialing caused harm to the plaintiffs only if Dr. Bracamontes’s privileges should have been revoked before they were treated, them own medical records could not establish that claim.
Second, the plaintiffs alleged that any inadequacies in their reports were the result of accident or mistake rather than conscious indifference. In Walker v. Gutierrez, we held that a report that completely omitted one of the elements required by statute could not be an accident or mistake because “a party who files suit on claims subject to article 4590i is charged with knowledge of the statute and
* * *
Because the trial court abused its discretion in failing to grant the hospital’s motion to dismiss, we conditionally grant the writ of mandamus and order the trial court to vacate its order and enter a new order dismissing the plaintiffs’ claims against the hospital. We are confident the trial court will comply, and our writ will issue only if it does not.
Notes
. See, e.g., In re Ford Motor Co.,
. Tex.Rev.Civ. Stat. art. 4590i, § 1.02 (repealed 2003).
. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,
. Bowles v. Bourdon,
. In re Methodist Healthcare Sys. of San Antonio, Ltd., No. 04-05-00304-CV,
. In re Clinica Santa Maria, No. 13-06-00256-CV,
. See McAllen Med. Ctr., Inc. v. Cortez,
. The plaintiffs here also sued Dr. Lester Dyke, Dr. Hector Urrutia, and Cardiovascular Consultants of McAllen, none of whom are involved in this proceeding.
. In re McAllen Med. Ctr., Inc., No. 13-05-441-CV,
. In re Prudential Ins. Co. of Am.,
. Garland Cmty. Hosp. v. Rose,
. See Tex.Rev.Civ. Stat. art. 4590i, § 13.01(r)(5)(B) (“ ‘Expert’ means ... with respect to a person giving opinion testimony
. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,
. Bowie Mem’l Hosp. v. Wright,
. Garland Cmty. Hosp.,
. Broders v. Heise,
. Am. Transitional Care Ctrs.,
. St. Joseph Hosp. v. Wolff,
. The plaintiffs also say they alleged the hospital violated the Texas Deceptive Trade Practices Act, but no such allegations appear in their pleadings in the record before us.
. Tex.Rev.Civ. Stat. art. 4590i, § 1.03(a)(4) (“ ‘Health care liability claim' means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.”) (repealed 2003) (current version at Tex. Civ. Prac. & Rem.Code § 74.001(a)(13)); Diversicare Gen. Partner, Inc. v. Rubio,
. Diversicare,
. Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex.2004).
. In re Prudential Ins. Co. of Am.,
. Id. at 137.
. In re D. Wilson Constr. Co.,
. In re Allstate County Mut. Ins. Co.,
. In re Prudential,
. In re AIU Ins. Co.,
. In re Cerberus Capital Mgmt., L.P.,
. In re Ford Motor Co.,
. In re Allied Chem. Corp.,
. Tobin v. Garcia,
. Commentators recognize the influence of English and other states' summary-judgment procedures on Texas’s rules of civil procedure:
[W]hen the Advisory Committee of the Supreme Court of Texas began its labors in 1940 on the Texas Rules of Civil Procedure, there was ample experience to warrant the recommendation of a summary judgment rule for the state.... During the following years there was persuasive advocacy of a rule authorizing summary judgment. This was rewarded in the amendments of 1949, which became effective March 1, 1950.
Roy W. McDonald, Summary Judgments, 30 Texas L.Rev. 285, 285-86 (1952).
. See Kent D. Syverud, ADR and the Decline of the American Civil Jury, 44 UCLA L. Rev. 1935, 1935 (1997) ("In America today, the civil jury trial too often resembles the expensive and outmoded automobile produced by a flagging state-run industry in a once centrally planned economy. Few people buy it unless they have to, although there remain die-hard supporters, mostly among the work force on the assembly line.”).
. Tex.Rev.Civ. Stat. art. 4590i, § 1.02 (repealed 2003).
. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,
. Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 1.03, 2003 Tex. Gen. Laws 847, 849 (current version at Tex. Civ. Prac. & Rem.Code § 51.014(a)(9)-(10)).
. See, e.g., In re Rodriguez, 99 S.W.3d 825 (Tex.App.-Amarillo 2003, orig. proceeding), mand. denied, In re Woman's Hosp. of Tex., Inc.,
. See, e.g., Subaru of Am., Inc. v. David McDavid Nissan, Inc.,
.
. See generally Richard E. Flint, The Evolving Standard for Granting Mandamus Relief in the Texas Supreme Court: One More "Mile Marker Down the Road of No Return", 39 St. Mary’s L.J. 3, 48-94 (2007).
. See Webster’s Third New International Dictionary 2064 (1981) (defining “seminal” as "derived from ... seed”)'.
. Bradley v. McCrabb,
. Walker,
. Id. at 843.
. Id.
. Id.
. Jack B. Anglin Co., Inc. v. Tipps,
. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. Ninth Court of Appeals,
. Able Supply Co. v. Moye,
. CSR Ltd. v. Link,
. In re Ford Motor Co.,
. In re Prudential Ins. Co. of Am.,
. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985, 986 (requiring expert reports); Act of May 25, 1993, 73d Leg., R.S., ch. 625, § 3, 1993 Tex. Gen. Laws 2347, 2347 (requiring expert reports or cost bonds).
. Tex.Rev.Civ. Stat. art. 4590i, § 13.01(g) (repealed 2003).
.
Dissenting Opinion
dissenting, joined by Chief Justice JEFFERSON and Justice O’NEILL.
A whole new world
A new fantastic point of view
No one to tell us no Or where to go Or say we’re only dreaming ...
It’s crystal clear
That now I’m in a whole new world with you.
Brad Kane, A Whole New World, on Aladdin (Disney 1992).
A whole new world in mandamus practice, hinted by opinions in the last few years, is here. The Court’s heavy reliance on costs and delay to support its conclusion that the hospital has no adequate remedy by appeal marks a clear departure from the historical bounds of our mandamus jurisprudence. Because the Court’s opinion in this case does not follow the standards we established in the once-seminal case of Walker v. Packer,
I.
The Court’s jurisdiction to act on interlocutory orders from trial courts is more limited than its jurisdiction to act on final judgments. Ogletree v. Matthews,
Mandamus is an extraordinary writ that should issue “only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies.” Walker,
Until recently, we defined an inadequate remedy on appeal as a circumstance in which waiting for a final appealable judgment in a case would deprive the aggrieved party of substantial rights or result in a legal error that the appellate
In Walker, we reviewed several of our precedents in which we issued writs of mandamus without addressing this fundamental tenet and expressly disapproved of them “and any other authorities to the extent they might be read as abolishing or relaxing” the no adequate remedy on appeal requirement. Walker,
Laboring to establish predictable standards to guide Texas appellate courts in determining whether an adequate remedy by appeal existed, we expressly excluded certain burdens in litigation from satisfying the no adequate remedy standard. An appellate remedy is not inadequate “merely because it may involve more expense or delay than obtaining an extraordinary writ.” Id. at 842. In previous cases, we explained that “the cost and delay of pursuing an appeal will not, in themselves, render appeal an inadequate alternative to mandamus review.” Bell Helicopter Textron, Inc. v. Walker,
The no adequate remedy by appeal condition serves important purposes. While we lamented the substantial fees and costs of litigation and the significant delay that could be incurred waiting for the opportunity to appeal, we noted that every erroneous ruling would create these burdens, and mandamus would not lie to correct every one as it would cause substantial disruption to the trial process. Walker,
We have recognized, however, that harm to the judicial system, affecting our constitutional obligation to oversee the administration of justice and the rights of all Texans to a fair and efficient judicial system, is a basis for acting by mandamus. On that basis, we held, for example, that appeal is an inadequate remedy when one Texas court issues an order that directly interferes with another Texas court’s jurisdiction. In re SWEPI, L.P.,
The Court extended Walker and the established tenets of mandamus review to their logical limits in In re AIU Insurance Co.,
The Court creates a whole new world today, jettisoning the well-established precept that delay and expense alone do not justify mandamus review.
II.
In this case, relator filed a motion to dismiss under former article 4590i of the MLIIA for failure to file an adequate expert report, which the trial court denied. Tex.Rev.Civ. Stat. art. 4590i § 13.01(d). Defendants were not entitled to an interlocutory appeal of a trial court’s denial of a motion to dismiss under former article 4590L Although the Legislature later provided an interlocutory appeal for some denials of motions to dismiss, that right only applies to cases filed after September 1, 2003. Tex. Civ. PRAC. & Rem.Code § 51.014(a)(9); see Lewis v. Funderburk,
In a vigorous dissent to the denial of several petitions, Justice Owen, joined by Justice Hecht and Justice Brister, wrote, “I would grant mandamus relief in health care liability cases that remain governed by former article 4590i when an expert report fails to meet the statutory requirements and the trial court has nevertheless refused to comply with governing law that requires dismissal of the case.” Id. at 147.
So the Court’s opinion today is based neither on legislative intent, nor on judicial precedent.
In re Prudential and In re AIU were still tethered to Walker, and they assiduously endeavored to explain the inadequacy of an appeal. In this case, the Court merely cites this standard and then summarily rejects the clear rule affirmed in many cases — that the delay and expense of pursuing an appeal do not justify mandamus review.
There are egregious cases that compel action by mandamus on grounds that may not fit neatly within the traditional mandamus standards established by our precedents. Such cases should be the exception; they may now have become the rule. Because the Court abandons important tenets in our traditional mandamus practice and is not authorized to act by section 22.002 of the Texas Government Code on the interlocutory trial court order, I respectfully dissent.
. See Tex Const, art. V, § 3-c(a) (granting the Court jurisdiction to decide questions, not only cases or controversies, certified from federal courts of appeal). The Legislature may change the Court's jurisdiction over final judgments in cases or controversies and interlocutory matters.
. See Tex. Crv. Prac. & Rem.Code § 51.014(a).
. This Court "may issue the writs of mandamus, procedendo, certiorari and such other
. See Nat’l Med. Enters. v. Godbey,
. The Court recites that the expert reports at issue addressed the claims of 224 patients. However, only ten patients were real parties when the petition was filed in this Court and only eight patients remain in this proceeding.
. It remains an open question whether a denial of a motion to dismiss under the MLIIA’s expert report requirement is reviewable on appeal after a final judgment on the merits. See Villafani v. Trejo,
. The Legislature has the authority to make and change the avenues for and timing of appellate review of these interlocutory orders. The Court misconstrues my position on the propriety of the Legislature to make policy.