*1 lants’ motion to dismiss. logically not be considered washes could 74.351(b). In that situ- Chapter under 74.” ation, is not whether the defen- the issue deny- order reverse the trial court’s chapter as defined in “physician” dant is a dismiss, judg- we render ing the motion to 74; the issue is whether against claims dismissing appellees’ ment against physi- liability claim is asserted refiling of prejudice to the appellants with physician-owned If car-wash cian. claims, the cause to the and we remand “treatment, not partnership was sued appellants’ of determination treatment, depar- claimed lack of or other costs of attorney’s fees and reasonable accepted of medical ture from standards court. care, care, safety profes- or or or health directly sional or administrative services care,” the expert- to health then
related many of the other requirements and by chapter 74 would
protections provided 74.001(a)(13) (defin- apply.
not See id. claim”).4 liability
ing “health care argue appellants Appellees WATKINS, Mary Louise “physicians” considered be- ought not be M.D., Appellant, Pap laboratory work on the cause the v. by cy- performed in case smears Gary JONES, Appellee. totechs, cytotechs, physicians. not The however, employees physicians are the Watkins, Mary M.D. Louise In re em- scope course and of their acting and, thus, are within the defini- ployment 13-05-765-CV, 13-06-080-CV. Nos. See id. provider.” tion of “health care Appeals Court 74.001(a)(12)(B)(ii). Christi-Edinburg. Corpus are appellants We conclude 4,May 2006. defined physicians 74.001(a)(23) pro to the and are entitled chapter 74. Aside
tections physicians are appellants of whether
issue providers, appellees care
or health cause of action disputed that their
never liability
against appellants is a timely failed to file Appellees
claim. appellants as re
expert report regarding Accordingly, we by section 74.351.
quired denying appel-
hold the trial court erred care, directly to health related services chapter 4. As defined in injury to or proximately results in means a cause "Health care claim” claimant, the claimant's of a whether provider or death against a health care of action treatment, treatment, or in tort physician for lack of cause of action sounds claim or accepted departure from or other claimed contract. care, 2005). medical or health 74.001(a)(13) (Vernon standards of §Id. safety professional or administrative or *2 Hole, Garza, I. Ronald G. Cecilia L.L.P., McAllen, Hole & Alvarez, Ap- for pellant. Joe, Brewer, Anthony, R. Middle-
David PC, Harlingen, Appellee. brook Before Chief Justice VALDEZ Justices RODRIGUEZ and CASTILLO.
OPINION Opinion by Chief Justice VALDEZ. Watkins, M.D., this Mary Louise files joint of mandamus and petition for writ interlocutory appeal alleging that the it denied abused its discretion when underlying her motion to dismiss the medi- malpractice deny cal suit. her We writ mandamus.
Background
Jones,
Gary
appellee
and real
interest,
against
filed suit
Watkins after
injury
eye.
suit
suffering an
his
pursu-
claim
alleged
Prac-
chapter
ant to
74 of the Texas Civil
tice and Remedies Code.
Tex. Civ.
&
74.001— 74.507
PRAC. Rem.Code
(Vernon 2005).
subsequently
expert report by
Alexander P. Suder-
shan, M.D.,
injury.
concerning the
by filing a motion to
responded
dismiss, citing
alleged inadequacy
hearing
At the
on her
motion,
trial court determined that the
inadequate
was indeed
but
Remedy
to 30 days
Jones was entitled
to cor-
Mandamus as
rect the deficiencies. Jones then filed a
first address whether a petition
new
within
dead-
for writ of mandamus is the
meth
line,
objected
was not
to by
Watkins.
od
which Watkins
contest
*3
Following
filing
the
of the
the
new
decision.
of our
Several
sister courts of
appeals
faced with this question
trial
have been
court entered
order
Wat-
concluded that because “an erro
kins’s motion
dismiss.
grant
grace period
neous
of a
denies
law,”
an adequate remedy
manda
Analysis
remedy
mus is
means to
appropriate
Ctr.,
that error.
In re
Med.
167
Covenant
contends
it was an
919,
2005,
(Tex.App.-Amarillo
S.W.3d
920
abuse of discretion for the trial court to
pet.) (orig.proceeding);
no
see
In re
deny
motion to dismiss
her
where Jones
Zimmerman,
214,
(Tex.
148 S.W.3d
216
expert
produce
report
failed to
as re
2004,
App.-Texarkana
no pet.) (orig.pro
quired by
section 74.351. See
74.351.
ceeding).
this Court has
While
never ex
We note that Watkins
to mention
fails
issue,
plicitly
we
ruled
have enter
did
the trial court
petition
tained —and denied—a
of
writ
regarding
grant
of
produced an amended
mandamus
a 30-
report within
day
for an
In
extension
thirty days
hearing,
of the
and that
13-04-054-CV,
Esparza,
re
No.
2004 WL
ruled
only
deny
then
Wat
435241,
*1,
2233,
at
Tex.App.
2004
LEXIS
kins’s motion to dismiss. Watkins also
Mar.10,
(Tex.App.-Corpus
*4-5
Christi
fails to include this amended
in the
report
2004,
curiam).
orig.
(per
proceeding)
We
record, although the filing
clerk’s
petition
writ manda
report
is noted on the civil docket sheet
mus is
means to
appropriate
address
included
the clerk’s record. The burden
therefore,
complaint;
we dismiss the
lay
supply
upon Watkins
this Court with
appeal in cause
interlocutory
number 13-
a complete
demonstrating
record
jurisdiction.
for want of
We
05-765-CV
abused
discretion. See
turn
peti
now
to the merits of Watkins’
Hinton,
Univ.
Tex. at Austin v.
822
tion.
197,
1991,
(Tex.App.-Austin
S.W.2d
202
no
only
he
Mandamus will
correct
writ) (citing Christiansen v.
Prezelski
a clear abuse of discretion. Walker v.
(Tex.1990)).
842,
must
We
Packer,
(Tex.1992)
833, 840
827 S.W.2d
therefore,
presume,
that the missing docu
Moreover,
(orig.proceeding).
there must
ments would sustain
court’s rul
remedy
no
adequate
be
law. Id.
other
Enter,
ing.
Forestpark
(citing
Id.
v. Cul
claim,
In
pepper,
(Tex.App.
754 S.W.2d
report
plaintiff
expert
file an
must
denied)).
Fort
writ
Worth
requirements
fulfills certain
issue cannot be as
120 days
filing
within
suit. See Tex. Civ.
initially requests,
broad as she
as Jones
(Vernon
74.351(a)
&
PRAC.
Rem.Code
has
produced
report.
indeed
In-
2005). If
inadequate
filed is
stead, may only determine
we
whether
filed
are
because elements of
court abused its discretion in
found to
the trial court
be
30-day
Jones the
extension
file a
30-day
plaintiff
one
extension to
in order
report.
to cure
time
plaintiff
If the
does not re-
indeed filed within the
court,
ruling granting
ceive notice of the court’s
granted by the
and Watkins has
120-day
the extension until after the
dead-
objections
report.
no
to this new
passed,
line has
then the
trial court did not
conclude that the
run
date
first
plaintiff
shall
in allow-
commit a clear abuse
discretion
received the notice. Id.
to be amended
ing
extremely
In this
Jones filed an
missing
order to add the
standard-of-care
by Dr. Sudershan which dis-
brief
that no clear abuse of
element. Given
cussed the incident
which Jones had
shown,
deny
discretion is
we must
Wat-
injured
allegedly
been
due Watkins’s
kins’s
for writ of mandamus.
*4
argued
negligent
Although
care.
Jones
report adequately “captured”
that the
Conclusion
alleged
standard of care
his claim
because
for writ of mandamus
simple
trial
negligence,
court disa-
is denied.
greed. Although
continuing
argue
to
expert report’s compliance
defense of his
by
Dissenting Opinion
Justice
with the
requirements,
Jones
CASTILLO.
expressed
willingness
remedy
his
to
case,
granted
In
the trial
an
court
any deficiencies. The trial court ultimate-
oral
request
real-party-in-in-
on behalf
ruled,
ly
going
give you thirty
“I’m
Gary
for an
of time
terest
Jones
days.
you
If
don’t have that
am
Mary
to file an
Relator
going
his dismissal....
It’s not an
Louise
asserts
that
the trial
Watkins
expert’s report as to the standard of care
request
court’s order
violates
required by
as
at all.”
statute
74.351(c)
practice
of the Texas civil
argues
Watkins
this statement indicates
& Rem.
and remedies code.
Tex.
Civ. PRAC.
that
Jones’s
was so deficient as to
74.351(c) (Vernon
Supp.2005).
Code
not constitute an expert report under the
majority
diverge
Because the
and
and,
thus,
statute whatsoever
an
“expert report,”
what constitutes
re-
court could not
properly granted
spectfully dissent.
disagree;
extension.
it
is clear
transcript
record and
History1
I. Procedural
implicitly
court
determined that
February
By
pleading
his live
filed on
original
expert report, although
10, 2005,
alleged
Jones
a health care liabili-
was nonetheless a
faith ef-
18, 2005,
ty
April
proffered
claim. On
he
comply
fort to
require-
with the
“expert report”
treating physi-
from
Zimmerman,
his
ments. See
148
cian,
vitae,
(“the
without a curriculum
summariz-
216-17
trial court
...
implicitly
evaluation,
ing
diagnosis,
and treat-
found that the failure to
with the
12, 2005,
April
ment. On
Watkins
statute was not intentional or a result of
indifference,
objections asserting
that it did not
a
conscious
but was
result of
mistake”);
statutory requirements
because it did
or
see
accident
also Covenant
care,
Ctr.,
applicable
not contain the
standard
Med.
II. The Law of an challenging adequacy tion the Report Requirements Expert A. of an court, to the after only appears if it report represent does not hearing, report fell malpractice medical suit comply effort to objective good faith the purview the of Medical squarely within of an with the definition Act Liability Improvement and Insurance subsection. AnN. to all healthcare Tex.Rev.Civ. Stat. applies 74.351(i). § A does not constitute brought in Texas. claims Tex.Rev. (Vernon comply effort to with faith §§ 74.001-74.507 Ann. Civ. Stat. any if 2005). requirements it omits specific procedural The statute has Palacios, 46 statutory elements. requiring the including one requirements, usage. Tex grammar and common that words rules of Legislature has stated 2. The Texas 311.011(a) (Vernon Supp. § be read phrases used in a statute should Code Ann. Gov’t 2005). according to the and construed in context 74.351(Z)states that serving an extension. Section at 879. The deadline for S.W.3d day grant is not later than the 120th a motion chal the trial court shall original petition was after the date the lenging represent that does not 74.351(a). § filed. Id. objective good faith effort to definition of an Filing B. Extension of Time for 74.351(i). § report. Rev. Civ. Stat. Expert Report that in this Respectfully, specific pro- The statute also contains a objective narrative was not an the medical regarding thirty-day vision extension. with the stat good faith effort that, if an provides part The section dismiss, motion to ute. not expert report has been served within had no discretion but the trial court (a) period specified by subsection be- 74.351(i); Downer v. dismiss. See cause elements of the are found (Tex. 241-42 Aquamarine, one 1985) that, reviewing a trial (holding to the claimant in order to cure of discretion court decision under abuse 74.351(c). See id. Sub- standard, we must determine whether c, ject to subsection the trial court on trial court acted reference to without proper motion shall the claim if an dismiss guiding principles). rules or further con expert report has not been served within trial court abused its discre clude 74.351(b). statutory period. sec by granting tion extension under tion III. Discussion Respectfully, disagree 74.351(c) terms, By plain au *6 implicitly determined that the (1) thorizes an extension where elements good faith
was effort to (2) of the are found statutory requirements.3 The trial court cure the See Tex.Civ. Prac. & expressly found that the was a nar- § filed a Jones Ann. Rem.Code express finding rative. That is correct expert medical narrative rather than an because Jones served narrative and not report with a curriculum vitae. Absent expert report statutorily as that term is expert report, deficiency there is no 74.351(r)(6). defined, § id. The narrative Respectfully, cure. statutory did not contain ele- discretion in court abused its and, thus, good ments does not constitute a in a deficiency to cure a faith effort to with the that did not exist. See Palacios, requirements. at See 46 S.W.3d Downer, 74.351(b), (c); 701 S.W.2d Thus, correctly 879. found 241-42. the document served narrative and not an See Conclusion IV. 74.351(r)(6). Stat. Ann. Tex.Rev.Civ. I conclude that the statute does Because
Because the narrative omitted the statu curing deficiency in a medi- not authorize tory elements and was not a faith narrative, is not an re- cal comply, inquiry effort to the next is wheth I conclude that the trial court abused port, er the trial court had discretion to majority’s holding 3. The result of the is that Stat. Tex.Rev.Civ. report. 74.351(r)(6). medical narrative without a curriculum vitae Respectfully, disagree. satisfies the definition of discretion respectfully dissent. to dismiss. Texas, ELSA, Appellant,
CITY OF
v. A.G., Appellees.
M.A.L., F.B., and
No. 13-05-509-CV. Appeals
Court Christi-Edinburg.
Corpus
May 2006.