Rory LEWIS, M.D., Appellant v. Dewayne FUNDERBURK, as next Friend of Whitney Funderburk, Appellee
No. 10-05-00197-CV
Court of Appeals of Texas, Waco
April 5, 2006
Rehearing Overruled May 9, 2006
756
And third, there is a critical distinction between the Harris line of cases and this case. In Harris, we were concerned with double jeopardy, not unanimity of a jury verdict. In Harris, the jury had answered four separate questions in the charge finding the defendant guilty on all four. If this charge had been properly submitted as four separate questions and the jury answered guilty on all four, then we might have a double jeopardy issue if the four acts were not sufficiently distinct so that the conduct required to support each finding was different. But only when you have separate unanimous jury verdicts do you even start trying to decide which convictions will be disregarded to avoid violating the constitutional prohibition of double jeopardy and which conviction(s) will be affirmed.
The fact that the majority can go through the offenses and find one with a more serious penalty and, thus, decide on which count to base a finding of guilt, is significant. It lets the majority sit, not as a thirteenth juror, but as the jury‘s Dali Lama, telling us the answer to the question: What is the meaning of the jury‘s verdict?
The resolution of the issue identified, briefed, and argued by the majority is the most powerful argument that Gonzales has suffered some injury from the error in the charge which deprived Gonzales of a unanimous jury verdict on each specific count and deprived Gonzales of the ability to know which of the charges the jury unanimously agreed upon, if any. Because one victim can be subjected to multiple assaults, Gonzales may have committed four assaults in this case. Or, it could be that the only assault in the charge the jury could agree upon was causing serious bodily injury (which does not require a deadly weapon) and rejected the other three assaults (which involved a deadly weapon). Or it could be they did not all agree that Gonzales committed any of the four assaults. We know that the jury that considered the two aggravated assault counts in the first trial, which resulted in a hung jury, could not reach an agreement on either of those counts charged in the disjunctive—including the count the majority now decides to affirm. But now we know which one this jury unanimously agreed upon because the majority tells us. That is the jury‘s decision, not this Court‘s.
I dissent.
Amy Grubbs Thomas, The Law Offices of Amy Thomas, Mexia, for Dewayne Funderburk and Whitney Funderburk.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
OPINION
FELIPE REYNA, Justice.
Dewayne Funderburk filed a medical malpractice suit against Rory Lewis alleging that Lewis improperly treated his daughter‘s fractured wrist. The court denied Lewis‘s motion to dismiss premised on Funderburk‘s failure to serve an expert report on Lewis within 120 days after the filing of suit. Lewis appeals the denial of the dismissal motion along with subsequent rulings of the court. Because Lewis‘s notice of appeal is untimely with regard to the dismissal issue and because this Court does not have jurisdiction to address the other issues presented, we will dismiss the appeal for want of jurisdiction.
Funderburk filed suit on December 22, 2003. The 120-day statutory deadline for Funderburk to serve an expert report on Lewis was April 20, 2004. See
Funderburk served an expert report on Lewis on October 29. Lewis responded on November 12 with: (1) a “Second Motion to Dismiss” alleging that the expert preparing the October 29 report is not qualified and that his report is otherwise inadequate; (2) a “Motion for Reconsideration” of the prior ruling on Lewis‘s first dismissal motion; and (3) an “Objection to the Sufficiency of Plaintiff‘s Expert Report” contending that the expert preparing the October 29 report is not qualified and that his report is otherwise inadequate.
The court heard Lewis‘s motions on February 4, 2005 and took them under advisement. The court signed a written order on March 28, 2005 denying the motions. Lewis filed a notice of appeal on April 12, 2005.
Issues Presented
Lewis contends in six issues1 that: (1) the court abused its discretion by granting Funderburk a thirty-day extension because no expert report had been served within the 120-day period mandated by
Section 74.351
In 2003, the 78th Legislature rewrote the medical malpractice laws found in the Medical Liability and Insurance Improvement Act (former article 4590i) and recodified them under Chapter 74 of the Civil Practice and Remedies Code. See George C. Hanks, Jr. & Rachel Polinger-Hyman, Redefining the Battlefield: Expert Reports in Medical Malpractice Litigation After HB 4, 67 TEX. B.J. 936, 936 (2004).
(a) In a health care liability claim, a claimant shall, not later than the 120th day after the date the original petition was filed, serve on each party or the party‘s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted. The date for serving the report may be extended by written agreement of the affected parties. Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived.
(b) If, as to a defendant physician or health care provider, an expert report has not been served within the period specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall, subject to Subsection (c), enter an order that:
- awards to the affected physician or health care provider reasonable attorney‘s fees and costs of court incurred by the physician or health care provider; and
- dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.
(c) If an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency. If the claimant does not receive notice of the court‘s ruling granting the extension until after the 120-day deadline has passed, then the 30-day extension shall run from the date the plaintiff first received the notice.
....
(l) A court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6).
(r) In this section:
....
- “Expert report” means 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. § 74.351(a)-(c), (l), (r)(6).
Scope of Interlocutory Appeal
- “denies all or part of the relief sought by a motion under
Section 74.351(b) , except that an appeal may not be taken from an order granting an extension underSection 74.351 ;” or “grants relief sought by a motion under Section 74.351(l) .”
Thus, a defendant in a medical malpractice suit may bring an interlocutory appeal if the trial court denies a motion to dismiss and/or a request for attorney‘s fees under
Conversely, the plaintiff in a medical malpractice suit may bring an interlocutory appeal if the court grants a defendant‘s challenge to the adequacy3 of an expert report under
Perfection of Interlocutory Appeal
[I]n an accelerated appeal, absent a rule 26.3 motion,4 the deadline for filing a notice of appeal is strictly set at twenty days after the judgment is signed, with no exceptions, and filing a rule 26.1(a) motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusions of law will not extend that deadline.
In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005) (footnote added); see also
The trial court signed its order denying Lewis‘s first motion to dismiss on October 29, 2004. Thus, Lewis‘s notice of appeal seeking review of this order was due within twenty days, on or before November 18. See
Lewis‘s third, fourth, and fifth issues challenge the court‘s denial of his second motion to dismiss, which is premised solely on the qualifications of Funderburk‘s “second” expert and the adequacy of his report. As has been observed however, a defendant has no right of interlocutory appeal under
Accordingly, the appeal is dismissed.
Chief Justice GRAY, dissenting.
TOM GRAY, Chief Justice, dissenting.
This is a medical malpractice case. The precedent established by this case is that if a trial court grants a plaintiff a 30 day extension to serve a medical expert report, there can be no interlocutory appeal if the trial court subsequently determines the extended report is compliant, no matter how defective the extended report may be.1 I dissent.
THE TIME LINE
02/22/02—Letter from one physician, thanking another physician for the referral of a client, aka Wroten Report
12/22/03—Suit filed
03/11/04—Wroten Report served as part of discovery
04/20/04—Deadline for serving an expert report
06/28/04—Motion to dismiss filed
09/30/04—Hearing on motion to dismiss. Trial court determined instead that the Wroten Report is an inadequate expert report and gave 30 day extension upon request of plaintiff to serve a compliant report
10/29/04—Order signed granting the 30 day extension
10/29/04—Extended report served
11/12/04—Objections to extended report
11/12/04—Motion to Dismiss due to failure to file a compliant report and objections to extended report
02/04/05—Hearing on objections and motion to dismiss; objections overruled, motion denied
04/12/05—Notice of Appeal filed
THE SHORT VERSION
The plaintiff filed suit. The nature of the suit required an expert report to be served. The plaintiff did not timely serve an expert report. The defendant requested a dismissal. The plaintiff argued that a referral letter that was in discovery responses already served was an expert report. The referral letter was grossly deficient as an expert report. The trial court denied the motion to dismiss and granted an extension. The plaintiff served an extended report. The defendant filed objections to the extended report and a second motion to dismiss. The trial court overruled the objections to the extended report and denied the motion to dismiss. The defendant brings an interlocutory appeal. The majority holds that we have no jurisdiction to review a trial court‘s determination that an extended expert report is adequate under any circumstance and the defendant waited too long to bring an interlocutory appeal from the original denial when the trial court granted an extension to serve a compliant report. Now the dissent gets its turn.
THE FIRST “REPORT”
If the document dated February 22, 2002 and served in the course of discovery on March 11, 2004 is an expert report as defined by
February 22, 2002
Jon Ellis, M.D.
Waco Bone and Joint Clinic
3500 Hillcrest Drive
Waco, Tx 76708
Re: Whitney A. Funderburk
Dear Jon:
Thank you for asking me to see Whitney A. Funderburk. I saw Whitney in the office initially on 2/22/02. She was accompanied by her mom and dad. Whitney is a 14-year-old female who is a middle school student down in Grosbeck, Texas. On 12/22/01 she was involved in a four-wheeler accident. She sustained an injury to her left wrist consisting of a Salter fracture that was displaced. She had a fracture through the distal radial epiphysis with significant dorsal angulation of the distal fragment. An attempted reduction was done and then a cast was applied. There may have been a little bit of improvement with the reduction, but not a significant amount. The reduction was done in Mexia, Texas on 12/22/01. Apparently she was in a cast for a month. She describes a long-arm cast initially and then a short-arm cast for about three weeks. Because of continued pain and displacement after the cast was removed, the family took her to see you in Waco. You saw her initially on 2/1/02. You recommended she see me.
When I saw Whitney and her parents in the office on 2/22/02 it had been about two months since her injury. Whitney is still complaining of pain in the wrist.
On exam today, she has full mobility of her left shoulder. She has full flexion and extension of her left elbow. She has normal pronation compared to the uninjured right side, but her supination is zero. She has 32 degrees of palmar flexion of the left wrist, 22 degrees of dorsiflexion, 8 degrees of radial deviation, and 28 degrees of ulnar deviation. She has full flexion and extension of the
fingers. There is no numbness or tingling in the hand, and no atrophy in the upper arm, forearm, or intrinsic muscles of the hand. She does have what appears to be a slight deformity about the left wrist. I obtained x-rays today in the 90:90 view and compared the left with the right. She still has significant dorsal displacement of the fracture fragment seen on the lateral view. She does have significant healing present. The alignment of the radiocarpal joint is not bad, but there is significant dorsal displacement. I think some of this is keeping her from supinating her forearm.
This young lady is quite involved in sports and is very anxious to get back to them. She is also concerned very much about her wrist. While the Funderburks were in the office today, I told them I would like to review the x-rays that we took today with my associates and get back with them in a few days. Further imaging studies may need to be done. I told them I did not want to make a snap decision as to whether surgical intervention should be considered at this point. I told them I wanted to review the films myself and then get other consultation and they were all in agreement with that.
Thanks again for your referral.
Sincerely,
B.J. Wroten, M.D.
This letter was prepared during the course of treatment of the plaintiff and without regard to this suit. It was produced to a hospital defendant as part of a document production by the plaintiff. At the hearing on the first motion to dismiss, the plaintiff contended this letter was an expert report. Let‘s face it; the plaintiff was jammed up with a hard dismissal date because no report had been filed, the attorney reached into a hat and pulled out a rabbit—the trial court swallowed hard and cut the plaintiff some slack and, rather than dismiss the suit, determined that the Wroten Report was an inadequate expert report and gave the plaintiff the relief requested, an extension in which to serve a compliant expert report. This was an interesting tactic. If the Wroten Report was an expert report, you would have expected the response to be that the defendant had waited too long after the report was served to move for dismissal.
So the plaintiff made a calculated decision and rather than run the risk of having the trial court grant the dismissal as required if no report was served, the plaintiff waived the opportunity to assert the defendant‘s complaint was untimely and invited the trial court to err by granting the plaintiff an extension in which to serve a compliant expert report. This put the defendant in a procedural posture probably not contemplated by anyone, ever—that a litigant would be unable to even identify a document as an expert report.
But because the trial court granted an extension in which to serve a compliant report, the defendant was unable to bring an interlocutory appeal of the trial court‘s order.
When the extended report was served within the extension period, the defendant promptly filed objections and a motion to dismiss. The trial court overruled the objections, denied the motion to dismiss, and determined the report was compliant.
The majority holds that if a trial court grants an extension under
The issue here, even viewed from the majority‘s perspective, is under which provision the trial court was proceeding when it denied the defendant‘s motion to dismiss and overruled his objections to the extended report. The defendant sought dismissal and made his objections because a compliant report had not been served as required by
But a close examination of
Thus, the challenge to the sufficiency of an extended report is still a challenge pursuant to
The extended report is thus the opportunity for the plaintiff to serve a compliant report which is then considered timely under
I also believe that an interlocutory appeal from the extended report is the proper time to complain that the trial court erred in determining that the initial report was an expert report upon which an extension could be based. In this case, the Wroten Report is so clearly not a
Otherwise, as in this case, the trial court simultaneously denied a motion to dismiss and granted an extension request. As the majority notes, one portion of the interlocutory appeal provisions would allow the defendant to appeal the denial of the motion to dismiss.
We have the jurisdiction to determine in an interlocutory appeal whether an expert report served pursuant to a 30 day extension complies with the requirements for an expert report. A deficient report that is served after a 30 day extension is the equivalent of no timely served report and the denial of relief sought pursuant to
The majority errs in dismissing the interlocutory appeal as to the adequacy of the expert report upon the basis that an interlocutory appeal is not available to review the denial of a “challenge to the adequacy of an expert report.”
If the extended report served after the grant of an extension is deficient, there is no expert report filed for purposes of
One way to think about it is that the original deficient report is replaced by the second allegedly deficient report—and if the second report is indeed deficient, no expert report has been timely served under
Where the majority miscued is determining that the appeal is pursued because the relief requested by the defendant under
Because the majority dismisses the appeal for want of jurisdiction when we should be reviewing the merits of the issues, I respectfully dissent.
Nicholas George KLEIN, Appellant v. The STATE of Texas, State.
No. 2-03-390-CR
Court of Appeals of Texas, Fort Worth.
April 6, 2006.