Raymon POLAND, Individually and as Independent Administrator of the Estate of Jessie Poland, Robert Martin, and Frank Martin, Appellants, v. David OTT, Appellee.
No. 01-07-00199-CV.
Court of Appeals of Texas, Houston (1st Dist.).
Dec. 19, 2008.
Substituted Opinion Dissenting from the Denial of En Banc Consideration Jan. 22, 2009.
IV. CONCLUSION
We conclude that Pulmosan did not waive its special appearance and that the trial court properly determined that a substantial connection did not exist between Pulmosan‘s contacts with Texas and Moore‘s claims. We therefore affirm the trial court‘s order granting Pulmosan‘s special appearance.
Chetna Gosain Koshy, John R. Strawn, Cruse, Scott, Henderson & Allen, L.L.P., Cynthia D. Rendon, Frank A. Doyle, Lauren B. Harris, Melaine Ann Rubinsky, Tamara M. Madden, Johnson, Spalding, Doyle, West 7 Trent, LLP, Dale Burrus Frisby, Leah Ann Greene, Kroger, Myers, Frisby & Hirsch, Houston, for appellee.
Panel consists of Justices TAFT, KEYES, and ALCALA.
OPINION
TIM TAFT, Justice.
Appellants, Raymon Poland, individually and as independent administrator of the estate of Jessie Poland, Robert Martin, and Frank Martin (“the Poland parties“), timely moved for rehearing to the panel and for en banc reconsideration to the Court. On March 5, 2008, the Court denied the Poland parties’ rehearing motion, but their motion for en banc reconsideration rеmained pending, thus maintaining our plenary power over the appeal. See
The Poland parties appeal from a judgment dismissing their health-care-liability and related claims against appellee, Dr. David Ott. We determine whether the trial court erred in granting Dr. Ott‘s motion to dismiss the claims against him for the Poland parties’ failure timely to serve an expert report on Dr. Ott. We affirm.
Background
The factual recitations come from the Poland parties’ petitions. Appellant Raymon Poland was the husband of Jessie Poland; the remaining appellants were his natural children. In August 2003, Jessie Poland, under the care of Dr. James Willerson (an appellee in a related appeal) and Dr. Ott, was hospitalized at St. Luke‘s Episcopal Hospital and the Texas Heart Institute (both appellees in another related appeal) for an elective surgical procedure to repair her heart‘s mitral valve. Dr. Alina Grigore, who was employed by Dr. Arthur S. Keats & Associates (both of whom are appellees in another related appeal), was the anesthesiologist for the surgical procedure. The Poland parties alleged that, at the time of surgery, Jessie Poland‘s blood contained a level of Coumadin that the health-care providers should have known rendered her blood fully anticoagulated and, thus, rendered surgery dangerous. The surgery was nonetheless performed; Jessie Poland bled internally; and she died several days later of multisystem organ failure.
The Poland parties sued, among other defendants, St. Luke‘s Episcopal Hospital, the Texas Heart Institute, the University of Texas Health Science Center at Houston, Arthur S. Keats & Associates, and Drs. Ott, Grigore, and Willerson on October 24, 2005 for Jessie Poland‘s wrongful death, for her pain and suffering and medical costs before her death, and for her burial expenses. By the time of the trial court‘s complained-of ruling, the Poland parties had amended their petition to allege the following causes of action or theories of recovery against all defendants, including Dr. Ott: (1) negligence, (2) gross negligence, (3) actual and constructive
On June 20, 2006, Dr. Ott moved, under
The Poland parties did not deny that they had served Dr. Moritz‘s May 2, 2005 report on Dr. Ott‘s counsel 123 days after their claims had been filed against Dr. Ott, but in their response, they alleged that they had “served” that same report on Gary McLeod, a representative of Dr. Ott‘s professional liability carrier (APMC Insurance Services), whom they described in their response as Dr. Ott‘s “designated representative” for receipt of the report, on July 29, 2005—nearly three months before suit was filed.6 The Poland parties
Your letter of June 30, 2005 to David Alan Ott, M.D. has been referred to us for response, as we are his professional liability carrier. We will be investigating this case on behalf of Dr. Ott.
. . .
I also request that you provide me with your medical expert‘s specific criticisms of our member‘s care so that we might share those cоncerns with David Alan Ott, M.D.
They also attached their attorney‘s July 29, 2005 response to McLeod‘s letter:
Additionally, you will find enclosed the information that you requested regarding the opinion of our expert witness.
. . .
I will also fax you some additional information shortly.
Attached to the Poland parties’ attorney‘s July 29 letter was the unsigned expert report of Dr. Moritz and his curriculum vitae (“CV“). Finally, the Poland parties attached the affidavit of their counsel, who averred in pertinent part as follows:
I received notice from APMC Insurance Services on behalf of Dr. Ott. They [sic] requested the “medical expert‘s specific criticisms of our member‘s care so that we might share those concerns with David Alan Ott, M.D.” . . . I then replied . . . by sending Mr. Gary McLeod the Expert Report with Resume. I discussed wanting to look at possible settlement of this claim. . . . Mr. McLeod stated that he would have to send for the medical records from the hospital, to which I returned to him the medical authorization he had previously sent me, along with a copy of the Expert Report with Resume. . . . The Defendants have had the Expert report with Resume since May 2005.
(Emphasis added.)
The hearing on Dr. Ott‘s motion to dismiss and his motion to strike the live petition occurred on July 14, 2006. Other defendants’ motions to dismiss, objections to the expert report, and objections to the live petition were heard simultaneously. No additional evidence was presented at the hearing, but the following discussion between the trial court and Dr. Ott‘s attorney transpired:
Court: Who got the [expert] report beforehand [before suit‘s filing]?
Dr. Ott‘s attorney: Dr. Ott received it through—he was served with it through his carrier pre suit notification. We, as the attorneys did not—we did not have communications with the plaintiffs before the lawsuit was filed.
. . .
Court: . . . Heart Institute and St. Luke‘s gets [sic] pre suit report, [Dr.] Grigore gets no report before or after. . . . Willerson, gets—is not a part of this lawsuit. [Dr.] Ott gets report pre suit, directly from his insurance carrier. Attorneys never—
Dr. Ott‘s attorney: The insurance carrier, yes. The insurance carrier gets them.
On October 30, 2006, the trial court rendered an interlocutory order that, among doing other things, dismissed the claims against Dr. Ott with prejudice:
On July 14, 2006 . . . CAME TO BE HEARD all parties, by and through counsel, . . . Dr. David Ott‘s Motion to Dismiss and Dr. David Ott‘s Motion to Strike & Objections to Plaintiff‘s [sic]
Third Amended Petition. . . . The Court, having considered such Motions and Objections, having reviewed the file herein, and heard the argument of counsel, makes the following FINDINGS OF FACTS and ORDERS:
- Plaintiffs . . . filed their Original Petition on October 24, 2005. The 120-day deadline by which Plaintiffs were required to serve their expert reports pursuant to
Section 74.351 of theTEX. CIV. PRAC. & REM.Code was February 21, 2006. The earliest date that Plaintiffs served an expert report to any Defendant, after the filing of their lawsuit, was on February 24, 2006.. . .
- With respect to Defendant Dr. David Ott, Plaintiffs mailed Defendant Dr. David Ott‘s insurance agent with an unsigned expert report from Dennis Moritz, M.D. on July 29, 2005. Plaintiffs provided no evidence that Dr. Ott or his counsel received said unsigned expert report. The suit was filed by Plaintiffs against Dr. Ott on October 24, 2005. The deadline to serve the expert report was February 21, 2006. Plaintiffs served upon Dr. Ott‘s counsel the unsigned expert report on February 24, 2006, three days after the 120 day deadline, pursuant to
Section 74.351 of theTEX. CIV. PRAC. & REM.CODE . It is therefore ORDERED that Defendant Dr. David Ott‘s Motion to Dismiss and Motion to Strike and Objections to Plaintiff‘s [sic] Third Amended Petition [be] GRANTED, and all claims against Dr. David Ott [be] DISMISSED with prejudice.. . .
- It is further ORDERED that pursuant to
Section 74.351 of theTEX. CIV. PRAC. & REM.CODE that . . . Dr. David Ott [be] awarded attorney‘s fees in the amount of $14,893.00. The collection of these attorney‘s fees is stayed pending outcome of any interlocutory appeal.
This same order also (1) denied St. Luke‘s Episcopal Hospital and the Texas Heart Institute‘s joint motion to dismiss under
The Poland parties appealed the adverse rulings dismissing all of their claims against Drs. Ott, Willerson, and Grigore and Arthur S. Keats & Associates, and St. Luke‘s Episcopal Hospital and the Texas Heart Institute appealed the denial of their motion to dismiss—all under the same appellate cause number. Although the interlocutory order appealed by St. Luke‘s Episcopal Hospital and the Texas Heart Institute was permitted by statute, this was not true of every appealed order. See
The Parties’ Arguments
In one issue, the Poland parties argue that the trial court erred in granting Dr. Ott‘s dismissal motion and dismissing their claims against him with prejudice because they “served” their expert‘s report and CV on McLeod, Dr. Ott‘s “designated representative and duly authorized agent” for service of the report, about five months before they filed suit against Dr. Ott, rendering the report timely filed under
“We generally review rulings on a motion to dismiss under
The Applicable Law
§ 74.351. Expert Report
(a) In a health care liability claim, a claimant shall, not later than the 120th day after the date the claim 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.
See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847,
(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:
(1) 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
(2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.
“Statutes must be construed as written, and legislative intent detеrmined, if possible, from their express terms.” Gutierrez, 237 S.W.3d at 873. “Chapter 74, in its entirety, rather than provisions in isolation, must be considered, and meaning given to each provision consistent with all others.” Id. “Courts presume that the entire statute is to be effective and a just and reasonable result is intended.” Id. “Even if a statute is unambiguous, courts may consider the statute‘s objective; circumstances of its enactment; its legislative history; . . . [and] consequences of a particular construction. . . .” Id. “All words used and omitted are presumed used and omitted purposefully.” Id.
Provision of the Expert Report Before a Claim‘s Filing
We need not determine whether
A. What the Term “Serve” in Former Section 74.351(a) Means
Although
The distinction between filing and serving an expert report and curriculum vitae is amplified for claims governed by chapter 74 because [former Texas Revised Civil Statute] article 4590i claimants were merely required to “furnish” expert reports, but chаpter 74 claimants must “serve” them.
“Serve” is not defined in
section 74.351(a) . The code construction act provides guidance, however. It states that “words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.” “Serve” and “served” have distinct and familiar legal meanings under our
rules of civil procedure. See
TEX.R. CIV. P. 21a . The rules of civil procedure govern all actions of a civil nature in Texas courts unless a specific exception applies. We agree with our sister court‘s conclusion that, given the applicability of the rules of civil procedure to health care liability claims and the use of “serve” and “served” in the statute, the legislature intended for claimants to comply with Texas Rule of Civil Procedure 21a to fulfill the requirements ofsection 74.351(a) .This construction comports with the legislature‘s change of the word “furnish” in [former article 4590i,] section 13.01(d) to “serve” in
section 74.351(a) . We presume that the legislature enacted the statutory change with knowledge of existing law. Therefore, we may also presume its awareness of the meaning attached to the word “serve” in rule 21a.
Herrera, 212 S.W.3d 452, 458-59 (Tex. App.-Austin 2006, no pet.) (footnotes and most citations omitted, emphasis added by underlining). Four courts of appeals—including this Court twice since Gutierrez—have concluded that the term “serve” in former and current
The plain language of
1. First Reason: The Language of Chapter 74
First,
§ 74.051. Notice
(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.
(b) In such pleadings as are subsequently filed in any court, each party shall state that it has fully complied with the
provisions of this section . . . and shall provide such evidence thereof as the judge of the court may require to determine if the provisions of this chapter have been met. (c) Notice given as provided in this chapter shall toll the applicable statute of limitations to and including a period of 75 days following the giving of the notice, and this tolling shall apply to all parties and potential parties.
2. Second Reason: the Procedure for the Defendant‘s Objection
Second, by its plain language,
3. Third Reason: the Language of Rule 21a and Related Rule 21
Third, the plain language of rule 21a, which
4. Fourth Reason: the Possibility that a Potential Party May Not Become an Actual Party
Fourth, a physician or health-care provider may not know the details of the allegations against him—or even be assured that he or it will be sued—until the
5. Fifth Reason: Former Section 74.351(a)‘s Purposes
Fifth and finally, “the purposes behind
For example, there is no guarantee that whatever report may be provided during presuit negotiations will be the report on which the claimant relies to satisfy
The potential ambiguity that could arise from these predicaments is obvious and does not comport with the purposes of
C. How the Poland Parties Respond
The Poland parties nonetheless contend that (1) McLeod was Dr. Ott‘s “designated representative and duly authorized agent” to receive the report; (2) McLeod “requested that the report be served upon the insurance carrier”11; (3) thus, “the serving of the report on [McLeod] is equivalent to serving the report upon Dr. Ott or his counsel“; and (4) they therefore “served Dr. Ott [with the report] in the manner that he requested.” (Emphasis added.)
To the extent that the Poland parties mean that Dr. Ott (through his alleged agent) agreed that presuit provision of the expert report would substitute for
Conclusion
We hold that the trial court did not err in granting Dr. Ott‘s motion to dismiss under
We affirm the judgment of the trial court.13
Appellants moved for rehearing to the panel and for en banc reconsideration to the Court. See
The panel denied the motion for rehearing addressed to it, leaving pending the motion for en banc reconsideration, which maintained the Court‘s plenary power over the case. See
During the pendency of the motion for en banc reconsideratiоn, the Court sua sponte withdrew its opinion and judgment issued January 31, 2008, thus rendering moot the motion for en banc reconsideration. Cf. Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 41 n. 4 (Tex.App.-Houston [1st Dist.] 2004, pet. denied) (op. on reh‘g).
After the Court‘s withdrawal of its January 31, 2008 opinion and judgment, during the pendency of the Court‘s plenary power over the case, and before another opinion and judgment had issued in the case, en banc consideration was requested from within the Court. See
Chief Justice RADACK and Justices TAFT, NUCHIA, JENNINGS, KEYES, ALCALA, HANKS, HIGLEY, and BLAND, participated in the vote to determine en banc consideration.
A majority of the Justices of the Court voted to deny en banc consideration. See id.
Justice TAFT, concurring in the denial of en banc consideration. See
OPINION CONCURRING IN THE DENIAL OF EN BANC CONSIDERATION
Most of the arguments raised in the opinion dissenting from the denial of en banc consideration have already been addressed in the Court‘s opinion of December 19, 2008, and I refer the reader to the Court‘s discussion of those issues in that opinion. See Poland v. Ott, 278 S.W.3d 39 (Tex.App.-Houston [1st Dist.] 2008, no pet. h.). I write briefly to address two specific arguments raised in the dissenting opinion.
First, the dissenting opinion opines that the term “serve” in
Second, the dissenting opinion reasons:
Nothing in
former section 74.351(a) precludes a claimant from serving an implicated physician or health care provider with her expert report and curriculum vitae along with an original petition[2] or prior to the actual filing of such a
suit against that defendant, and the served document will still be considered part of the proceedings if the document references the lawsuit. When a claimant does serve her expert report on an implicated physician or health care provider along with the filing of her health care liability claims prior to filing those claims in court, then a defendant certainly can object to the report not later than 21 days after being served with the petition.
Poland, 278 S.W.3d at 60 (Jennings, J., dissenting) (emphasis added). The problem with this reasoning is that the plain language of
§ 74.351. Expert Report
(a) In a health care liability claim, a claimant shall, not lаter than the 120th day after the date the claim 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.
See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875 (emphasis added), amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590, 1590 (current version at
With these comments, I concur in the decision of the Court to deny en banc consideration in this case.
TERRY JENNINGS, Justice, dissenting from the denial of en banc consideration.
I withdraw my dissent that issued on December 19, 2008 and substitute the following opinion in its stead.
In its opinion, the panel erroneously concludes that appellants, Raymon Poland, Individually and as Independent Administrator of the Estate of Jessie Poland, Robert Martin, and Frank Martin (“the Polands“), untimely served their medical liability expert report on appellee, Dr. David Ott, MD. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875 [hereinafter “former
In fact, the Polands, on July 29, 2005, had, upon request, mailed their expert‘s report to Gary McLeod of APMC Insur-
Regardless, the panel reasons that because the Polands did not, after filing their health care liability claims in court, serve yet another copy of the expert report directly on Dr. Ott or his attorneys, the Polands’ claims for the wrongful death of Mrs. Poland must be dismissed with prejudice and the Polands must pay the attorneys’ fees of Dr. Ott. See
Factual and Procedural Background
The pertinent facts of the case are straightforward and undisputed. St. Luke‘s Episcopal Hospital (“St.Luke‘s“), on August 11, 2003, admitted Mrs. Poland for elective mitral valve1 replacement surgery. Although Mrs. Poland had been taking Coumadin for mitral valve regurgitation, she stopped taking Coumadin on August 9, 2003 in preparation for the surgery. Dr. Ott, the attending cardiac surgeon, performed the surgery on August 12, 2003. Due to bleeding complications that occurred during the surgery, Mrs. Poland
was twice taken back into surgery, and she died as a result of the complications on August 20, 2003.
Thereafter, the Polands’ attorneys complied with the notice provision of chapter 74 of the Texas Civil Practice and Remedies Code.2 Having received the Polands’ notice (presumably from Dr. Ott), McLeod, on July 13, 2005, wrote a letter to the Polands’ attorney informing them that their notice had been referred to APMC “for response, as we are [Dr. Ott‘s] professional liability carrier. We will be investigating this case on behalf of Dr. Ott.” McLeod also requested the Polands’ “medical expert‘s specific criticisms of our member‘s care so that we might share those concerns with David Alan Ott, M.D.” Fulfilling McLeod‘s request, the Polands’ attorneys, on July 29, 2005, mailed him “the information you requested regarding the opinion of our expert witness,” enclosing their expert report, written by Dr. Dennis Moritz, M.D., a Board Certified Cardiac Surgeon. (Emphasis Added). Attached to Dr. Moritz‘s report was his lengthy curriculum vitae.
In sum, Dr. Moritz, in his expert report, stated that the pertinent standard of care in regard to surgery on a patient on Coumadin “is to stop the Coumadin and allow the coagulation profile to return to normal.” He also stated, “Performing any elective surgery on a fully anticoagulated patient is a breach of the standard of care. This is particularly true for operations such as heart surgery in which bleeding is always a potential hazard.” Dr. Moritz
It is my opinion based on a reasonable degree of medical probаbility that proceeding with this operation in a patient who was fully anticoagulated with Coumadin led to bleeding, multiple transfusions of blood products, multiple organ failure, and finally death.
The principle of not doing elective surgery on a fully anticoagulated patient is so basic to surgical principles, that I feel this breach of the standard of care must also reflect a serious system failure at this hospital. Many people had knowledge, or should have had knowledge of Mrs. Poland‘s PT/INR. Any of these could have and should have initiated action to cancel the case. This failure resulted in Mrs. Poland‘s death.
On October 24, 2005, the Polands filed their original petition, alleging, as noted by the panel,
that, at the time of surgery, [Mrs.] Poland‘s blood contained a level of Coumadin that the health-care providers should have known rendered her blood fully anti-coagulated and, thus, rendered surgery dangerous. The surgery was nonetheless performed; Mrs. Poland bled internally; and she died several days later of multi-system organ failure.
Poland v. Ott, 278 S.W.3d 39, 41 (Tex.App.-Houston [1st Dist.] 2008, no pet. h.).
Subsequently, Dr. Ott moved to dismiss the Polands’ health care liability claims on the ground that the Polands had failed to timely serve him or his attorneys with Dr. Moritz‘s expert report. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875 (amended 2005);
Section 74.351(a)
In their sole issue concerning Dr. Ott, the Polands argue that the trial court erred in dismissing their health care liability claims against Dr. Ott on the ground that they did not comply with
In fact, the trial court, during the hearing on Dr. Ott‘s motion to dismiss, asked all of the defendants present, “[W]ho got the report beforehand?” Counsel for Dr. Ott answered:
Dr. Ott received it through—he was served with it through his carrier, presuit notification.
(Emphasis added.)
Dr. Ott argues that the trial court did not err in dismissing the Polands’ health care liability claims because the Polands “did not satisfy the requirements of [section] 74.351 by mailing Dr. Ott‘s insurance carrier an unsigned expert report prior to filing their health care liability claim.” Dr. Ott does not claim that he and his attorneys did not actually receive the report. Rather, he emphasizes that section 74.351 “provides that the expert report must be served upon the party or the party‘s attorney. It does not indicate that the report may be mailed to the party‘s insurance carrier or any agent of the party.” Thus, Dr. Ott asserts that neither “service” on his “insurance adjuster” nor “pre-suit service” can “satisfy” the requirements of section 74.351.
The panel, without determining whether the Polands’ service of their expert report on McLeod at APMC was effective, holds:
[P]rovision of an expert report before a health-care-liability claim is filed in court against the physician or health-care provider does not meet
former section 74.351(a) ‘s service requirements.
Poland, 278 S.W.3d at 47-48. The panel reasons:
The plain language of
former section 74.351(a) and [Texas Rule of Civil Procedure] 21a , which it implicitly incorporates by use of the term “serve,” simply does not contemplate “service” of the expert‘s report and [curriculum vitae] on a physician or health-care provider until after a claim has been filed in court against that person or entity.
See id. The panel‘s erroneous holding and reasoning is based on another panel‘s holding in University of Texas Health Science Center at Houston v. Gutierrez, 237 S.W.3d 869, 873 (Tex.App.-Houston [1st Dist.] 2007, pet. denied). In Gutierrez, this Court held that:
Given the express legislative intent of Chapter 74 and the intentional legislative act of replacing the word “furnish” with “serve” in
section 74.351(a) , we determine that proper service under rule 21a must occur to effectuate the intent of Chapter 74 as a whole, andsection 74.351(a) specifically.[3]
We reach this conclusion despite the fact that, as the [Polаnds] note, the section requires service ”not later than” 120 days after a claim is filed, rather than requiring service within 120 days after the claim is filed.
Poland, 278 S.W.3d at 48 (emphasis added).
Although Dr. Ott and the panel state that the “plain language” of
In a health care liability claim, a claimant shall, not later than the 120th day after the date the claim 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.
See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875 (amended 2005) (emphasis added). Thus, as conceded by the panel,
The Texas Supreme Court has explained,
When interpreting statutes, we try to give effect to legislative intent. “Legislative intent remains the polestar of statutory construction.” However, it is a cardinal law in Texas that a court construes a statute, “first by looking to the plain and common meaning of the statute‘s words.” If the meaning of the statutory language is unambiguous, we adopt, with few exceptions, the interpretation supported by the plain meaning of the provision‘s words and terms. Further, if a statute is unambiguous, rules of construction or other extrinsic aids cannot be used to сreate an ambiguity.
Fitzgerald v. Advanced Spine Fixation, Sys., Inc., 996 S.W.2d 864, 865-66 (Tex.1999) (citations omitted).
Here, the panel turns to
The word “serve,” as a verb, is defined simply as to “make legal delivery of (a notice or process)” and to “present (a person) with a notice or process as required by law.” BLACK‘S LAW DICTIONARY 1372 (7th ed.1999). Thus, all that
Rule 21a does not define the word “serve,” which, as noted above, simply means to “deliver“; rather, it provides:
Every notice required by these rules, and every pleading, plea, motion or other form of request required to be served under Rule 21, other than the citation to be served by the filing of a cause of action and except as otherwise expressly provided in these rules, may be served by delivering a copy to the party to be served, or the party‘s duly authorized agent or attorney of record, as the case may be, either [1] in person or by agent or by courier receipted delivery or [2] by certified or registered mail, to the party‘s last known address, or [3] by telephonic document transfer to the recipient‘s current telecopier number, or [4] by such other manner as the court in its discretion may direct.
The purpose of the rules relating to service and notice is to make reasonably certain that all parties to a suit are notified as to the date and time the court has set their matter down for hearing and determination. This is in order that the parties, individually or by counsel may appear, and present their side of the case and to take such action as is deemed appropriate to protect their interest. Thus, service and notice in a technical sense is incidental where the main purpose of obtaining the appearance of all parties and their participation is accomplished.
Hill v. W.E. Brittain, Inc., 405 S.W.2d 803, 807 (Tex.App.-Fort Worth 1966, no writ) (emphasis added).
Here, likewise, although Dr. Ott complains that neither he nor his attorneys received the Polands’ expert report directly from the Polands after they had filed their lawsuit, the Polands’ service of the expert report upon Dr. Ott‘s insurance carrier prior to the filing of their lawsuit, as requested by McLeod, was adequate. Dr. Ott makes no showing of any prejudice. In fact, APMC is presumably fulfilling its duty to defend him.
Relying on rule 21a to fault the Polands for not serving yet another copy of their expert report on Dr. Ott after filing suit not only results in a miscarriage of justice, but actually goes against the very purpose of our rules of civil procedure upon which the panel relies to reach its holding. We are to “liberally” construe the rules because “[t]he proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the
Any procedural device or rule therefore, which impedes the investigation or the evaluation of the facts or the awarding of the just consequences thereon, is incompatible with an ideal procedure. No mere rule of procedural form or courtesy should be allowed to delay or control the disposition of the litigation upon its merits.
No judgment should ever be rendered in the trial court which is based upon mere procedural technicalities.... There is no vested right in rules of procedure; much less is there any vested right in procedural errors.
Nothing in
The purpose behind the Legislature‘s requirement of “early expert reports” is not to create a “gotcha“; it is to “stem frivolous suits against health care providers.” Lewis v. Funderburk, 253 S.W.3d 204, 205 (Tex.2008). As recently noted by our sister court, in enacting Chapter 74, the Legislature sought to “(1) reduce excessive frequency and severity of health care liability claims through reasonable improvements and modifications in Texas insurance, tort, and medical practice systems; and (2) decrease the cost of those claims and ensure that awards are ration-ally related to actual damages.” Mokkala v. Mead, 178 S.W.3d 66, 74 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (quoting Act of June 2, 2003, 78th Leg., R.S. ch. 204, § 10.11(b), 2003 Tex. Gen. Laws 847, 884). In presenting House Bill 4, which included the pertinent language in
House Bill 4 . . . is designed to promote fairness and efficiency in civil lawsuits, protect Texas citizens and Texas courts from abusive litigation tactics, remove incentives in the system that are causing unwarranted delay and expense. House Bill 4—its purpose is to restore the needed balance in our court system so that it can operate more efficiently and more fairly and less costly.
Id. (citing Hearings on Tex. H.B. 4 Before the House Comm. on Civil Practices, 78th Leg., R.S. 1 (Feb. 26, 2003)) (statement of Rep. Nixon) (transcript availаble from Capitol Research Services, Austin, Texas) (emphasis added). Representative Nixon emphasized that “the hard reality is we just need to make a hard and fast deadline, like we do on statue [sic] of limitations—as we do on other requirements.”
Here, not only did the Polands meet
What I will do is I will issue an order one way or the other.... Because this issue needs to be decided. Because lawyers usually don‘t do what you have done. And I feel like plaintiffs were attempting to do what the statute attempts to require of them. And usually the case is plaintiffs are trying to do the least, and defendants file a motion to dismiss in that situation.
(Emphasis added.)
Dismissing the Polands’ claims with prejudice and making them pay the attorney‘s fees of Dr. Ott under these circumstances constitutes a misapplication of
Certainly, a health care liability claimant‘s certification of compliance with rule 21a in delivering an expert report to a defendant doctor or health care provider would entitle the claimant to “a presumption of delivery” of the report. However, the bottom line is that the claimant need not rely on such “a presumption of deliv-
Conclusion
In sum, the En Banc Court should hold that the Polands timely served Dr. Ott with the health care liability expert report of Dr. Moritz, sustain their sole issue, and remand the case to the trial court for further proceedings. Moreover, the En Banc Court should overrule this Court‘s holding in Gutierrez that “proper service under rule 21a must occur to effectuate the intent of Chapter 74 as a whole, and section 74.351 specifically.” Gutierrez, 237 S.W.3d at 873. Accordingly, I respectfully dissent from the denial of en banc consideration of the case.
Notes
In Herrera, Herrera‘s attorneys claimed that they had timely sent, by regular mail, a copy of Herrera‘s medical liability expert report to the defendant doctor and hospital. Herrera, 212 S.W.3d at 456. Significantly, both the doctor and the hospital alleged that they did not receive the report until Herrera‘s attorneys subsequently sent them, outside of
A certificate by a party or an attorney of record, or the return of the officer, or the
affidavit of any other person showing service of a notice shall be prima facie evidence of the fact of service.
Id. (quoting
(Emphasis added.) Again, this fulfilled the direct request of Dr. Ott‘s insurance carrier, which, presumably, had a duty to defend him.Dr. Ott received it through—he was served with it through his carrier, presuit notification.