Case Information
*0 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 11/2/2015 1:18:06 PM DORIAN E. RAMIREZ Clerk *1 ACCEPTED 13-15-00362-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 11/2/2015 1:18:06 PM Dorian E. Ramirez CLERK CASE NO. 13-15-00362-CV IN THE COURT OF APPEALS FOR THE THIRTEENTH JUDICIAL DISTRICT OF TEXAS AT CORPUS CHRISTI–EDINBURG, TEXAS McALLEN HOSPITALS, L.P., McALLEN HOSPITALS, L.P. d/b/a McALLEN MEDICAL CENTER, McALLEN MEDICAL CENTER, McALLEN HOSPITALS, L.P. d/b/a SOUTH TEXAS HEALTH SYSTEM
AND SOUTH TEXAS HEALTH SYSTEM, Appellants vs.
MARIO RODRIGUEZ AND LUDIVINA IRACHETA, INDIVIDUALLY AND AS NEXT FRIENDS OF XXXXX XXXXXXXXX, A MINOR, Appellees APPEAL FROM CAUSE NUMBER C-2334-12-H TH 389 JUDICIAL DISTRICT COURT, HIDALGO COUNTY, TEXAS
JUDGE LETICIA LOPEZ APPELLANTS’ BRIEF
Ronald G. Hole State Bar No. 09834200 HOLE & ALVAREZ, L.L.P. 612 W. Nolana Loop, Ste 370 P.O. Box 720547 McAllen, Texas 78504 Telephone: (956) 631-2891 Telecopier: (956) 631-2415 E-Mail: Mail@HoleAlvarez.com ORAL ARGUMENT REQUESTED November 2, 2015
Russell W. Schell State Bar No. 17736800 Email: rschell@schellcooley.com Jennifer G. Martin State Bar No. 00794233 Email: jmartin@schellcooley.com SCHELL COOLEY LLP 15455 Dallas Parkway, Suite 550 Addison, Texas 75001 (214) 665-2000 (214) 754-0060 FAX ATTORNEYS FOR APPELLANTS McALLEN HOSPITALS, L.P., McALLEN HOSPITALS, L.P. d/b/a McALLEN MEDICAL CENTER, McALLEN MEDICAL CENTER, McALLEN HOSPITALS, L.P. d/b/a SOUTH TEXAS HEALTH SYSTEM AND SOUTH TEXAS HEALTH SYSTEM
-ii- *3 IDENTITY OF PARTIES AND COUNSEL Appellants/Defendants: Counsel for Appellants:
McAllen Hospitals, L.P., McAllen Ronald G. Hole
Hospitals, L.P. d/b/a McAllen Hole & Alvarez, L.L.P.
Medical Center, McAllen Medical P. O. Box 720547
Medical Center, McAllen Medical McAllen, Texas 78504-0547
Center, McAllen Hospitals, L.P. Telephone:(956) 631-2891
d/b/a South Texas Health System Telecopier:(956) 631-2415
and South Texas Health System E-Mail: Mail@Hole&Alvarez.com
c\o Hole & Alvarez, L.L.P.
P.O. Box 720547 Russell W. Schell
McAllen, Texas 78504-0547 Jennifer G. Martin
SCHELL COOLEY LLP 15455 Dallas Parkway, Suite 550 Addison, Texas 75001 (214) 665-2000 (214) 754-0060 FAX Appellees/Plaintiffs: Counsel for Appellees:
Mario Rodriguez and Ludivina Russell S. Post
Iracheta, Individually and as Patrice B. Childress
Next Friends of XXXXX Beck\Redden LLP
XXXXXXXXX, a Minor 1221 McKinney Street, Suite 4500
c\o Beck\Redden LLP Houston, Texas 77010
1221 McKinney Street, Suite 4500 Telephone: (713) 951-3700
Houston, Texas 77010 Telecopier: (713) 951-3720
E-Mail: rpost@beckredden.com E-Mail: pchildresst@beckredden.com -iii-
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL.. . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
RECORD REFERENCES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi
PARTY REFERENCES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xii
ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xii
Did the trial court abuse its discretion by denying Appellant’s Motion for Dismissal Pursuant to Section 74.351 of the Texas Civil Practice and Remedies Code when Plaintiffs’ expert reports were not timely served? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xii
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. This Court reviews the decision below for an abuse of discretion, with de novo review of pure matters of law.. . . . . . . . . . . . . . . 7
B. Plaintiffs were required to serve expert reports on the MMC Defendants or their attorney no later than December 5, 2015. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
-iv- *5 1. The Petition against Appellants was filed on August 7, 2013. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2. The deadline for service of reports was December 5, 2013. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
C. Filing reports on October 11, 2013, was not service.. . . . . . . 10
D. Plaintiffs were required to serve reports in accordance with Rule 21a.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1. The MMC Defendants became parties to the lawsuit on August 7, 2013.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2. Rule 21a authorizes only four methods of service.. . . . 12
E. Reports provided to Steve Gonzalez and Edward Castillo were not service of reports upon Appellants or Appellants’ counsel.. . . 13
1. Neither Steve Gonzalez nor Edward Castillo were attorneys of record for the MMC Defendants.. . . . . . . . . . . . . . . . 14
2. The MMC Defendants did not agree to extend the deadline to serve expert reports.. . . . . . . . . . . . . . . . . . . . . . . . . 17
3. Appellees’ exhibits do not evidence service of reports on the MMC Defendants.. . . . . . . . . . . . . . . . . . . . . . . . . . 19
4. The reports were not even served on Edward Castillo. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5. Fulp is dispositive of this case.. . . . . . . . . . . . . . . . . . . 22
F. The insurance carrier receiving copies of the report is insufficient to comply with the strict requirements of Section 74.351.. . . . 23
G. Service of reports on January 17, 2014 was untimely.. . . . . . 24
-v-
CONCLUSIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
INDEX OF APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Tab 1 Order Denying McAllen Hospital Defendants’ Motion to Dismiss, entered on August 5, 2015 Tab 2 Letter between Plaintiffs’ Counsel and Co- Defendant’s Counsel dated October 11, 2013 (Plaintiffs’ Exhibit No. 8)
Tab 3 T EX . C IV . P RAC . & R EM . §74.351(Vernon Supp. 2003) -vi-
INDEX OF AUTHORITIES
Cases
Am. Transitional Care Ctrs. of Texas, Inc. v. Palacios , 46 S.W.3d 873 (Tex.
2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Birdwell v. Cox , 18 Tex. 535 (1857) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Cayton v. Moore, 224 S.W.3d 440 (Tex. App.–Dallas 2007, no pet.). . . . . 8
Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238 (Tex. 1985). . . . 7
Fulp v. Miller , 286 S.W.3d 501 (Tex. App.–Corpus Christi 2009, no pet.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12, 22, 23 Garza v. Carlson , 398 S.W.3d 848 (Tex. App.–Corpus Christi 2012, pet.
denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Goforth v. Bradshaw , 296 S.W.3d 849 (Tex. App.–Texarkana 2009, no pet.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Herrera v. Seton Nw. Hosp. , 212 S.W.3d 452 (Tex. App.–Austin 2006, no
pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Johnson v. City of Fort Worth , 774 S.W.2d 653 (Tex. 1989) . . . . . . . . . . . 8
Kendrick v. Garcia , 171 S.W.3d 698 (Tex. App.–Eastland 2005, pet. denied)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Kennedy v. Hyde , 682 S.W.2d 525 (Tex. 1984) .. . . . . . . . . . . . . . . . . . . 18
Konasiewicz v. Lomas , 2015 Tex. App. LEXIS 7853 (Tex. App.–Corpus
Christi July 30, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Martinez v. Gonzales , No. 13-14-00241-CV, 2015 Tex. App. LEXIS 9700
(Tex. App.–Corpus Christi, Sept. 17, 2015, n.p.h.). . . . . . . . . . . . . . . . 8
-vii-
Offenbach v. Stockton , 285 S.W.3d 517 (Tex. App.–Dallas 2009), aff'd, 336
S.W.3d 610 (Tex. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 24 Otero v. Alonzo , No. 13-10-00304-CV, 2011 Tex. App. LEXIS 1559 (Tex.
App.–Corpus Christi Mar. 3, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Owens v. Handyside , No. 01-12-01108-CV, 2015 Tex. App. LEXIS 10426
(Tex. App.–Houston [1st Dist.] Oct. 8, 2015, n.p.h.). . . . . . . . . . . . . . 10
Padilla v. LaFrance , 907 S.W.2d 454 (Tex. 1995).. . . . . . . . . . . . . . . . . . 19
Pallares v. Magic Valley Elec. Coop. , 267 S.W.3d 67 (Tex. App.–Corpus
Christi 2008, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Pessel v. Jenkins , 125 S.W.3d 807 (Tex. App.–Texarkana 2004, no pet.)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Petty v. Churner, 310 S.W.3d 131 (Tex. App–Dallas, 2010, no pet.). . . . . 8
Salinas v. Dimas , 310 S.W.3d 106 (Tex. App.–Corpus Christi 2010, pet.
denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Stockton v. Offenbach , 336 S.W.3d 610 (Tex. 2011). . . . . . . . . . . . 8, 9, 25
Univ. of Tex. Health Sci. Ctr. v. Gutierrez , 237 S.W.3d 869 (Tex. st
App.–Houston [1 Dist.] 2007, pet. denied). . . . . . . . . . . . . . . . . . . . . 12
Walker v. Gutierrez , 111 S.W.3d 56 (Tex. 2003). . . . . . . . . . . . . . . . . . . . 7
Zanchi v. Lane , 408 S.W.3d 373 (Tex. 2013). . . . . . . . . . . . . . . . . . . . 9, 11
Statutes
Tex. Civ. Prac. & Rem. Code § 74.351. . . . . . . . . . . . . . . . . . . 8-11, 23, 25
-viii-
Rules
Tex. R. Civ. P. 11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Tex. R. Civ. P. 21a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Tex. R. Civ. P. 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Other Authorities
Lamont A. Jefferson, Trends and Traps in Rules of Civil Procedure , 70 The
Advoc. (Texas) 48 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
-ix-
RECORD REFERENCES The record in this cause consists of the Clerk’s Record (1 volume), a Supplemental Clerk’s Record (1 volume) and the Reporter’s Record (3
volumes). The Clerk’s Record will be referred to as “C.R. __” or “Supp. C.R.
__”, and the Reporter’s Record will be referred to by volume and page, R.R.
Vol. __, p. ___. Documents in the Appendix will be referred to as “App. __”.
PARTY REFERENCES McAllen Hospitals, L.P., McAllen Hospitals, L.P. d/b/a McAllen Medical Center, McAllen Medical Center, McAllen Hospitals, L.P. d/b/a South Texas
Health System and South Texas Health System, Appellants herein, are five
defendants in the trial court. For ease of reference, such defendants will at
times be referred to as “the MMC Defendants” or “Appellants.” Mario
Rodriguez and Ludivina Iracheta, Individually and as Next Friends of XXXXX
XXXXXXXXX, a Minor, Appellees herein, are the plaintiffs in the trial court.
For ease of reference, Mario Rodriguez and Ludivina Iracheta, Individually
and as Next Friends of XXXXX XXXXXXXXX, a Minor, will at times be
referred to as “Plaintiffs” or “Appellees.”
-x- *11 STATEMENT OF THE CASE The underlying proceeding is a suit for damages alleging a cause of action based upon medical negligence. (C.R. 80-89) Appellants filed a
Motion for Dismissal Pursuant to Section 74.351 of the Texas Civil Practice
and Remedies Code. (C.R. 249-54) On August 5, 2015, the trial court
signed an order denying Appellants’ Motion to Dismiss. (C.R. 402) This
accelerated interlocutory appeal follows. (C.R. 403-07)
ISSUE PRESENTED
Did the trial court abuse its discretion by denying Appellant’s Motion for Dismissal Pursuant to Section 74.351 of the Texas Civil Practice and
Remedies Code when Plaintiffs’ expert reports were not timely served?
-xi- *12 CASE NO. 13-15-00362-CV IN THE COURT OF APPEALS FOR THE THIRTEENTH JUDICIAL DISTRICT OF TEXAS AT CORPUS CHRISTI–EDINBURG, TEXAS McALLEN HOSPITALS, L.P., McALLEN HOSPITALS, L.P. d/b/a McALLEN MEDICAL CENTER, McALLEN MEDICAL CENTER, McALLEN HOSPITALS, L.P. d/b/a SOUTH TEXAS HEALTH SYSTEM
AND SOUTH TEXAS HEALTH SYSTEM, Appellants vs.
MARIO RODRIGUEZ AND LUDIVINA IRACHETA, INDIVIDUALLY AND AS NEXT FRIENDS OF XXXXX XXXXXXXXX, A MINOR, Appellees APPEAL FROM CAUSE NUMBER C-2334-12-H TH 389 JUDICIAL DISTRICT COURT, HIDALGO COUNTY, TEXAS
JUDGE LETICIA LOPEZ
APPELLANTS’ BRIEF
TO THE HONORABLE JUSTICES OF SAID COURT:
COME NOW McALLEN HOSPITALS, L.P., McALLEN HOSPITALS, L.P.
d/b/a McALLEN MEDICAL CENTER, McALLEN MEDICAL CENTER,
McALLEN HOSPITALS, L.P. d/b/a SOUTH TEXAS HEALTH SYSTEM and
SOUTH TEXAS HEALTH SYSTEM, Appellants in the above-entitled and
numbered cause, and file this Appellants’ Brief, and for such brief would
respectfully show unto this Honorable Court as follows:
I.
STATEMENT OF FACTS
A chronology of key events will aid the Court in its review: August 3, 2012 Appellees filed Plaintiffs’ Original Petition, Chapter 74
Expert Report and Request for Disclosure. (C.R. 30- 74) The MMC Defendants were not named as defendants or parties in such petition. ( Id. ) August 7, 2013 Appellees filed Plaintiffs’ First Amended Original
Petition. (C.R. 80-89) This is the first pleading asserting health care liability claims against the MMC Defendants. ( Id. ) At no time prior to adding Appellants as defendants/parties did Appellees comply with §74.051 of the Texas Civil Practice & Remedies Code. (R.R. Vol. 3, Def. Ex. 5) August 20, 2013 The MMC Defendants were served with citations and
the August 7, 2013 First Amended Original Petition. (R.R. Vol. 3, Def. Ex. 1; R.R. Vol. 2, p. 5) No expert reports were provided or served with the citations. ( Id. )
October 11, 2013 Plaintiffs filed the expert reports of Elizer Nussbaum,
M.D. and Susan Engleman, R.N. (C.R. 90-207; R.R. Vol. 3, Def. Ex. 2) Such reports were not served upon Appellants. ( Id. ) Appellants had not yet made an appearance in this case. (C.R. 208-10) On the same date, Appellees’ counsel provided the same reports to Edward Castillo and Steve Gonzalez, the attorneys of record for Co-Defendant RGV Pediatric Care, P.A. (R.R. Vol. 3, Pl. Ex. 8) Such reports were not provided by certified mail, electronic document transfer or in person. ( Id. )
December 5, 2013 One hundred and twenty (120) days passed from the
date suit was filed against the MMC Defendants. (C.R. 250 & 401; R.R. Vol. 3, Def. Ex. 8) January 2, 2014 The MMC Defendants filed their Original Answer.
(C.R. 208-10)
January 17, 2014 The attorney for the MMC Defendants was served
with the reports of Eliezer Nussbaum, M.D. and Susan G. Engleman, R.N., MSN, CPCN, AC, PNP, *15 BC, CLCP, by Plaintiffs’ attorney. (R.R. Vol. 2, p. 6; R.R. Vol. 3, Def. Ex. 4)
February 5, 2014 The MMC Defendants filed their Objections to
Plaintiffs’ Expert Reports. (C.R. 211-18) In such pleading, Appellants asserted they had not been timely served with any expert reports: “[t]hese Defendants were not served with these reports until January 22, 2014, more than one hundred and twenty (120) days after the suit was amended to add them as health care liability Defendants.” ( Id. p. 214) June 30, 2015 The MMC Defendants filed their Motion to Disqualify
asserting that the attorneys for RGV Pediatric Critical Care, P.A. were representing a party adverse to Appellants in the instant case, while still representing Appellants in other cases. ( Id. ) [1]
July 8, 2015 The trial court entered an Order granting the Motion
to Disqualify. (C.R. 247-48) *16 July 20, 2015 The MMC Defendants filed their Motion for Dismissal
Pursuant to Section 74.351 of the Texas Civil Practice & Remedies Code. (C.R. 249-54)
July 23, 2015 Appellees filed their Response to the Motion for Dismissal
Pursuant to Section 74.351 of the Texas Civil Practice & Remedies Code. (C.R. 255-85)
July 31, 2015 The MMC Defendants filed their First Amended Original
Answer. (C.R. 286-98)
August 4, 2015 The MMC Defendants filed their Exhibits in Support of their
Motion for Dismissal Pursuant to Section 74.351 of the Texas Civil Practice & Remedies Code. (C.R. 369-401) August 5, 2015 An evidentiary hearing was held on The MMC Defendants
Motion for Dismissal Pursuant to Section 74.351 of the Texas Civil Practice & Remedies Code. (R.R. Vol. 2, pp. 4- 128) That same date, the trial court entered an Order denying the Motion to Dismiss. (C.R. 402; App. 1) August 6, 2015 Appellants timely filed their notice of appeal from the denial
of their Motion to Dismiss. (C.R. 403-07) *17 II.
SUMMARY OF ARGUMENT The trial court abused its discretion by denying the MMC Defendants’ Motion for Dismissal Pursuant to Section 74.351 of the Texas Civil Practice
& Remedies Code. Plaintiffs did not serve the statutorily-required expert
reports and curricula vitae on the MMC Defendants or their counsel of record
within 120 days of filing their petition as mandated by Section 74.351. [2]
Plaintiffs attempt to escape mandatory dismissal by pointing to a number of
other ways they attempted – but failed – to effect service. However, none of
Plaintiffs’ actions – filing the reports with the trial court; providing the reports
to Appellants’ co-defendant’s counsel; providing the report to one of the MMC
Defendants’ insurance companies; or serving the reports on the MMC
Defendants’ counsel on January 17, 2014 – effected timely service on the
MMC Defendants as required by §74.351. Plaintiffs cannot avoid the strict
dismissal mandate of Section 74.351.
*18 III.
ARGUMENT
ISSUE (RESTATED)
The trial court abused its discretion by denying Appellant’s Motion for Dismissal Pursuant to Section 74.351 of the Texas Civil Practice and Remedies Code.
A. This Court reviews the decision below for an abuse of discretion,
with de novo review of pure matters of law.
A trial court’s decision on a motion to dismiss a case under Section 74.351 of the Texas Civil Practice and Remedies Code is reviewed for an
abuse of discretion. Am. Transitional Care Ctrs. of Texas, Inc. v. Palacios ,
46 S.W.3d 873, 878 (Tex. 2001); Fulp v. Miller , 286 S.W.3d 501, 505 (Tex.
App.–Corpus Christi 2009, no pet.). “A trial court abuses its discretion if it
acts in an arbitrary or unreasonable manner without reference to any guiding
rules or principles.” Walker v. Gutierrez , 111 S.W.3d 56, 62 (Tex. 2003)
(quoting Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241-42
(Tex. 1985)); see also Garza v. Carlson , 398 S.W.3d 848, 849 (Tex.
App.–Corpus Christi 2012, pet. denied) (citing Palacios , 46 S.W.3d at 878);
Salinas v. Dimas , 310 S.W.3d 106, 108 (Tex. App.–Corpus Christi 2010, pet.
denied) (citing Downer , 701 S.W.2d at 241-42).
A trial court has no discretion to determine what the law is or in applying the law to the facts. Petty v. Churner, 310 S.W.3d 131, 134 (Tex. App–Dallas,
2010, no pet.) (citing Cayton v. Moore, 224 S.W.3d 440, 445 (Tex.
App.–Dallas 2007, no pet.)). The trial court abuses its discretion if it failed to
analyze and determine the law correctly or applied the law incorrectly to the
facts. Id. When the issues presented are purely questions of law, the
appellate court should effectively conduct a de novo review. Id. (citing
Pallares v. Magic Valley Elec. Coop. , 267 S.W.3d 67, 69–70 (Tex.
App.–Corpus Christi 2008, pet. denied); Johnson v. City of Fort Worth , 774
S.W.2d 653, 656 (Tex.1989) (holding that “matters of statutory construction
are questions of law for the court to decide rather than issues of fact”)); see
also Martinez v. Gonzales , No. 13-14-00241-CV, 2015 Tex. App. LEXIS 9700,
*3 (Tex. App.–Corpus Christi, Sept. 17, 2015, n.p.h.).
B. Plaintiffs were required to serve expert reports on the MMC
Defendants or their attorney no later than December 5, 2015. To proceed with a health care liability claim (HCLC), a claimant must comply with the expert-report requirement of the Texas Medical Liability Act
(TMLA). See Tex. Civ. Prac. & Rem. Code § 74.351; Stockton v. Offenbach ,
336 S.W.3d 610, 614 (Tex. 2011). The statute mandates, “[i]n 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.” Tex. Civ. Prac. & Rem. Code § 74.351. “ Strict
compliance with that provision is mandatory .” Zanchi v. Lane , 408
S.W.3d 373, 376 (Tex. 2013) (emphasis added) (citing Stockton , 336 S.W.3d
at 614).
If the claimant does not serve an expert report by the statutory deadline and the parties have not agreed to extend the deadline, the statute requires, with one exception not relevant here, dismissal of the claim with prejudice “on the motion of the affected physician or health care provider.”
Zanchi , 408 S.W.3d at 376 (citing Tex. Civ. Prac. & Rem.Code 74.351(b)).
1. The Petition against Appellants was filed on August 7, 2013. Plaintiffs first alleged medical negligence claims against Appellants in their First Amended Original Petition, filed August 7, 2013. ( Compare [3]
Plaintiffs’ Original Petition, at C.R. 30-38, with Plaintiffs’ First Amended
Original Petition, at C.R. 80-89) Thus the clock on the 120-day deadline for
*21 the serving of expert reports and curricula vitae on Appellants began on
August 7, 2013.
2. The deadline for service of reports was December 5, 2013. th The 120 day after August 7, 2013, was December 5, 2013. (C.R. 250
& 401; R.R. Vol. 3, Def. Ex. 8) The statute in effect when Appellants were
added to this cause required a health care liability claimant to “not later than
the 120th day after the date the original petition [is] filed, serve on each party
or the party's attorney one or more expert reports.” Tex. Civ. Prac. & Rem.
Code § 74.351; see Owens v. Handyside , No. 01-12-01108-CV, 2015 Tex.
App. LEXIS 10426, *6-7 (Tex. App.–Houston [1st Dist.] Oct. 8, 2015, n.p.h.).
Plaintiffs had to serve the MMC Defendants with expert reports no later than
December 5, 2013.
C. Filing reports on October 11, 2013, was not service.
Appellees filed the expert reports of Eliezer Nussbaum, M.D. and Susan G. Engleman, R.N., MSN, CPCN, AC, PNP, BC, CLCP on October 11, 2013.
(C.R. 90-207; R.R. Vol. 3, Def. Ex. 4) Such reports were not served upon the
MMC Defendants or their attorney on that date. ( Id. )
The clear language of the statute required Plaintiffs to “serve” the report upon the MMC Defendants or their attorney. Tex. Civ. Prac. & Rem. Code
§ 74.351(a). Filing expert reports with the trial court does not meet the strict
service requirement of the statute. See Offenbach v. Stockton , 285 S.W.3d
517, 522 (Tex. App.–Dallas 2009), aff'd, 336 S.W.3d 610 (Tex. 2011); see
also Otero v. Alonzo , No. 13-10-00304-CV, 2011 Tex. App. LEXIS 1559, *8
(Tex. App.–Corpus Christi Mar. 3, 2011) (“service may not be accomplished
under section 74.351 by filing a copy of the expert report with the trial court”).
Therefore, filing the expert reports on October 11, 2013, did not meet the
strict requirements of the TMLA.
D. Plaintiffs were required to serve reports in accordance with Rule
21a.
To comply with the TMLA, Plaintiffs had to serve the MMC Defendants with their expert reports pursuant to Rule 21a.
1. The MMC Defendants became parties to the lawsuit on August 7, 2013.
The MMC Defendants became parties to the suit when they were first named in Plaintiffs’ First Amended Original Petition, filed on August 7, 2013.
Zanchi , 408 S.W.3d at 377. They were served with citation as of August 20,
2013 (R.R. Vol. 3, Def. Ex. 1). Service of the expert reports after Appellants
were parties and served with citation required that the expert reports be
served in compliance with Rule 21a of the Texas Rules of Civil Procedure.
Fulp , 286 S.W.3d at 510 (“the Legislature intended for claimants to comply
with rule 21a requirements to fulfill the requirements of section 74.351(a)”);
see also Goforth v. Bradshaw , 296 S.W.3d 849, 853 (Tex. App.–Texarkana
2009, no pet.); Univ. of Tex. Health Sci. Ctr. v. Gutierrez , 237 S.W.3d 869, st
872 (Tex. App.–Houston [1 Dist.] 2007, pet. denied).
2. Rule 21a authorizes only four methods of service.
This Court has noted:
Rule 21a authorizes the following four methods for service upon a party: (1) delivery in person, by agent, or courier-receipted delivery; (2) certified or registered mail; (3) telephonic document transfer; or (4) “such other manner as the court in its discretion may direct.
Fulp , 286 S.W.3d at 511 (citing Tex. R. Civ. P. 21a). While Rule 21a was
amended, effective January 1, 2014, to permit service by regular mail, such [4]
was not effective service in 2013. See Herrera v. Seton Nw. Hosp. , 212
*24 S.W.3d 452, 459 (Tex. App.–Austin 2006, no pet.) (holding that service by
regular mail of an expert report did not comply with Texas Rule of Civil
Procedure 21a and, therefore, the plaintiff did not serve the expert report
within the 120-day period); Kendrick v. Garcia , 171 S.W.3d 698, 704 (Tex.
App.–Eastland 2005, pet. denied) (“Notice by regular mail is not an authorized
method of service under Rule 21a.”) (citing Pessel v. Jenkins , 125 S.W.3d
807, 810 (Tex. App.–Texarkana 2004, no pet.); see also Konasiewicz v.
Lomas , 2015 Tex. App. LEXIS 7853, *18 (Tex. App.–Corpus Christi July 30,
2015) (plaintiff failed to demonstrate service in accordance with Rule 21a
where the record did not show the physician was “served via certified or
registered mail, that the envelopes were postpaid, or that the report was
served on [the doctor] by another approved method”). Therefore, the regular
mailing of an expert report was not a proper manner of service prescribed by
Rule 21a at the time question.
E. Reports provided to Steve Gonzalez and Edward Castillo were not
service of reports upon Appellants or Appellants’ counsel. Plaintiffs have contended they served the MMC Defendants with the expert reports on or about October 11, 2013. (C.R. 258)
Just one month after seeking and obtaining an extension of time for McAllen to file its original answer, McAllen’s counsel agreed, in writing, to accept service of Plaintiffs’ Chapter 74 expert reports, which were timely and properly filed and served only fifty two (52) days into the 120-day period for such service.
(C.R. 258-265) However, there are several inaccuracies and problems with
such assertion.
1. Neither Steve Gonzalez nor Edward Castillo were attorneys of record for the MMC Defendants.
Plaintiffs’ counsel asserts, “McAllen’s counsel agreed, in writing, to accept service of Plaintiffs’ Chapter 74 expert reports.” (C.R. 258) In support
of this contention, Plaintiffs provided the trial court with a letter signed by both
Edward Castillo and Joe Alexander. (C.R. 264-65; R.R. Vol. 3, Pl. Ex. 8; App.
2) The trial court’s docket sheet shows Steve Gonzalez and Edward Castillo
were attorneys of record for RGV Pediatric Critical Care, P.A., not the MMC
Defendants. (C.R. 8-29) Prior to Ronald G. Hole entering an appearance for
Appellants (C.R. 208-10), there was never any “designation of attorney in
charge”; designation of “attorneys of record”; nor was there any answer,
motion or pleading on behalf of the MMC Defendants, or any one of them,
filed by Steve Gonzalez or Edward Castillo. (C.R. 8-29) Likewise, there is no
indication in the trial court’s file of any assertion being made by such
attorneys that they were ever acting as attorneys of record for the MMC
Defendants in the trial court prior to the hearing on Appellants’ motion to
dismiss. ( Id. )
During the hearing on Appellants’ motion to dismiss, Christine Gaitan-Valdez, the System Risk Management Director for McAllen Medical
Center testified:
Q. And in this particular case, who was the outside counsel that was retained to represent McAllen MedicalCenter?
A. When?
Q. At any time.
A. Ron Hole.
Q. Okay. And -- with the firm of Hole and Alvarez,L.L.P.?
A. Yes.
Q. And was there ever any other attorney retained to represent McAllen Medical Center in connection with this case?
A. Most recently Russ, Russell Schell.
Q. Okay. And was that with the firm of Schell Cooley, L.L.P.?
A. Yes.
Q. Okay. Have any other attorneys ever been retained to represent McAllen Medical Center in connection with this case?
A. No.
* * *
Q. Okay. In this case, did you ever select the Law Firm of Gonzalez Castillo or Steve Gonzalez or Mr. Castillo to represent McAllen Medical Center in connection with this case?
A. No.
(R.R. Vol. 2, pp. 10-11, 14) The evidence before the trial court supports only
one proposition: Mr. Gonzalez and Mr. Castillo were never attorneys of
record for the MMC Defendants in this case.
Also, nothing in any of the documents admitted into evidence at the hearing, including the documents from the insurance company (which were
clearly hearsay, not properly authenticated and objected to on those bases
– R.R. Vol.2, p. 84-85), indicate that either Mr. Gonzalez or Mr. Castillo was
ever retained by the insurance company to represent the MMC Defendants
in connection with the underlying medical negligence case. At best, one of
the e-mails from the insurance company indicates:
As you and I discussed, in the event MMC is involved at a later date , it appears that the JUA coverage would be applicable and *28 we would certainly want you there for the defense . I appreciate you keeping that option available.
(R.R. Vol. 3, Pl. Ex. 2-1) (emphasis added) Another e-mail comments:
Once I have received the served documents and had an opportunity to review them in conjunction with the JUA policy, I will contact you and/or Steve to discuss the status of the PA’s MSJ and the possible formal assignment of defense.
(R.R. Vol. 3, Pl. Ex. 2-2) (emphasis added) As an aside, the insurance
company also noted:
Also, as you know, JUA has a strict policy of not waiving any statutory defenses, i.e. the 120-day expert report deadline.
Id .
In summary, neither Steve Gonzalez nor Edward Castillo were retained to
represent Appellants at the time of the alleged agreement to accept service
of the expert reports.
2. The MMC Defendants did not agree to extend the deadline to serve expert reports.
Review of the court’s record reveals no evidence of any agreement by the MMC Defendants to extend the deadline to serve expert reports.
Moreover, at the time the MMC Defendants filed their Motion to Dismiss, there
was nothing in the court’s record evidencing an agreement for any person,
attorney, party or entity to accept the expert reports for the MMC Defendants.
(C.R. 8-29) All Rule 11 Agreements entered into during this case have been
included in the Clerk’s Record. (C.R. pp. 75-76; 77-79; 225-27) None of
these Rule 11 Agreements relate to or concern the authorization of any
person, entity or attorney to accept the §74.351 reports on behalf of the MMC
Defendants.
Rule 11 of the Texas Rules of Civil Procedure provides: Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.
Tex. R. Civ. P. 11. This rule has existed since 1840 and has contained the
filing requirement since 1877. See Kennedy v. Hyde , 682 S.W.2d 525, 526
(Tex.1984) (tracing the history of Rule 11). The rationale for the rule is
straightforward:
Agreements of counsel, respecting the disposition of causes, which are merely verbal, are very liable to be misconstrued or forgotten, and to beget misunderstandings and controversies; and hence there is great propriety in the rule which requires that all agreements of counsel respecting their causes shall be in writing, and if not, the court will not enforce them . They will then speak for themselves, and the court can judge of their import, and proceed to act upon them with safety. The rule is a salutary one, and ought to be adhered to whenever counsel disagree as to what has transpired between them.
Birdwell v. Cox , 18 Tex. 535, 537 (1857) (emphasis added); see also Padilla
v. LaFrance , 907 S.W.2d 454, 459-60 (Tex. 1995).
In the instant case, there was no Rule 11 Agreement authorizing a co-defendant’s attorney (who was later disqualified for representing an
adverse party to the MMC Defendants at the same time it represented the
MMC Defendants in non-related cases – C.R. pp. 247-48) to accept service
of the expert reports for the MMC Defendants. If Plaintiffs wanted to serve
the expert reports on the MMC Defendants before the MMC Defendants
answered or otherwise entered an appearance, Plaintiffs could have served
the reports as they served their First Amended Original Petition. Alternatively,
if Plaintiffs wanted a binding agreement with the MMC Defendants to allow
Steve Gonzalez or Edward Castillo to accept service of the reports for them,
they could have obtained a Rule 11 Agreement, signed by the MMC
Defendants, granting such authorization. This they did not do.
3. Appellees’ exhibits do not evidence service of reports on the MMC Defendants.
Appellees contend Exhibits A-C to their response (which were introduced during the hearing as Plaintiffs’ Exhibits 6, 9 and 8 respectively)
demonstrate that service of expert reports was timely accomplished on the
MMC Defendants. However, such documents only show that Plaintiffs’
counsel and counsel for an adverse co-defendant, RGV Pediatric Critical
Care, P.A., engaged in some communications attempting to create a
circumstance that could allow Steve Gonzalez to represent the MMC
Defendants in the future should his current client, RGV Pediatric Critical Care,
P.A., be dismissed from the lawsuit. (R.R. Vol. 3, Pl. Ex. 2)
After Steve Gonzalez requested an extension of time for the MMC Defendants to file an answer, Plaintiff’s counsel e-mailed Steve Gonzalez
advising of his assumption that Mr. Gonzalez could accept service of the
expert reports on behalf of the MMC Defendants. (R.R. Vol. 3, Pl. Ex. 7)
Eventually, Mr. Castillo advised Mr. Alexander he could accept service of the
reports. (R.R. Vol. 3, Pl. Exs. 2 & 8)
However, the testimony at the hearing and the documents entered into evidence during the hearing make clear that the MMC Defendants never
authorized Mr. Castillo or Mr. Gonzalez to accept service of the expert reports
on their behalf. (R.R. Vol. 2, pp. 11-14; R.R. Vol. 2, Def. Ex. 6) At best, Mr.
Gonzalez and Mr. Castillo checked with one of the MMC Defendants’
insurance carriers; but there is no evidence the carrier could accept service
of the expert reports for the MMC Defendants or to permit another to accept
the reports. No evidence was offered at the hearing from any insurance
carrier representative to support the carrier having authority to allow an
attorney to waive the protections of §74.351. Nothing in the contract of
insurance (R.R. Vol. 3, Pl. Ex. 4) specifically authorizes, allows or grants any
insurance company employee, carrier, attorney or representative to agree to
accept expert reports in violation of the mandates of §74.351. Moreover,
there is nothing to suggest that any authority the carrier might have to accept
service of the expert reports could be delegated to another person, entity or
attorney without the consent of the insured. More importantly, however, the
statute requires that the reports be served upon the party or the party’s
attorney, not the party’s insurance company. The insurance company for the
party cannot be served with the reports on behalf of the health care provider.
See Section F infra .
4. The reports were not even served on Edward Castillo. Despite the major problems noted above, there is also a serious problem with Plaintiffs’ contention that they served the MMC Defendants by
serving the §74.351 reports on Edward Castillo. Assuming arguendo the
attorney for Appellants’ co-defendant was authorized by the MMC Defendants
to accept service of the expert reports on their behalf, such reports were not
served on Edward Castillo. Instead, such reports were provided to Mr.
Castillo by regular mail.
At the time of the provision of the reports in question to Mr. Castillo, regular mail was not an acceptable method of service under Rule 21a of the
Texas Rules of Civil Procedure. See Section D(2) supra . The reports were
not sent to Mr. Gonzalez and Mr. Castillo by certified or registered mail, by
personal or courier delivery or by telephonic document transfer. As such,
there was no service of the reports.
5. Fulp is dispositive of this case.
This Court’s decision in Fulp v. Miller , 286 S.W.3d 501 (Tex. App.–Corpus Christi, 2009, no pet.), is squarely on point and dispositive. In
that case, Miller’s attorney, Preston Henrichson, served another attorney, Rick
Lyde, with expert reports in a manner consistent with Rule 21a. Id. at 511.
However, Steve Gonzalez, not Rick Lyde, filed the hospital's original answer
to Miller’s petition as the hospital’s first appearance in this case. Id. Rick
Lyde, it was determined, represented the same hospital in connection with
another case in which Preston Henrichson was involved. Id. at 511-12.
This Court found that, as Gonzalez was the attorney in charge, having made the hospital’s initial appearance, Miller was required to serve the expert
reports on Gonzalez, in compliance with Rules 8 and 21a. Id . Even though
Mr. Lyde represented the hospital in an unrelated medical malpractice case,
and even though Mr. Henrichson served his expert reports on Lyde under the
assumption that Lyde represented the hospital, this Court held, “[c]learly,
Miller failed to comply with rule 8 and, in turn, did not comply with section
74.351(a).” Id. at 512 (citing Tex. R. Civ. P. 8; Tex. Civ. Prac. & Rem.Code
§ 74.351(a)). As a result, this Court concluded
the trial court abused its discretion in denying the Hospital's motion to dismiss. Section 74.351(b) requires that the trial court dismiss Miller’s claims as to the Hospital with prejudice and award the Hospital attorney’s fees and costs of court.
Id . (citing Tex. Civ. Prac. & Rem.Code. § 74.351(b)).
F. The insurance carrier receiving copies of the report is insufficient
to comply with the strict requirements of Section 74.351. Appellees also contend the MMC Defendants were timely served with the expert reports because their insurance carrier received copies of the
reports before the 120-day deadline. Not only is the position refuted by the
clear statutory language – requiring service on either the party or its attorney
– but has been soundly rejected. See Offenbach , 285 S.W.3d at 521 (“the
plain language of the statute requires the expert report to be served ‘on each
party or the party’s attorney,’ and does not authorize service on a party’s
insurance carrier”). As such, Appellees suggestion that the MMC Defendants’
insurance carrier received the reports during the 120-day window is of no
moment.
G. Service of reports on January 17, 2014 was untimely.
Plaintiffs’ attorney served their purported expert reports on the MMC Defendants’ attorney on January 17, 2014, via regular mail. (C.R. 266-67;
R.R. Vol. 3, Def. Ex. 4) Service by regular mail complied with Rule 21a, as
amended, in January 2014. However, such service was untimely as the 120-
day deadline expired on December 5, 2013.
A claimant must comply with Chapter 74 of the Civil Practice and Remedies Code, when asserting a health care liability claim. Among the statute’s requirements is the expert report requirement, which directs a claimant to “serve” an expert report and the expert's curriculum vitae on each party or party's attorney within 120 days of filing suit. Compliance with this provision is mandatory; the claimant must serve an expert report to proceed with a health care liability claim. If the claimant has not served the expert report by the statutory deadline and the parties have not agreed to extend that deadline, “the court, on the motion of the affected physician or health care provider, shall, subject to [an exception not relevant here], dismiss the claim with prejudice.
Stockton , 336 S.W.3d at 614-15 (quoting Tex. Civ. Prac. & Rem. Code
§74.351) (internal citations and footnotes omitted). It is undisputed that the
MMC Defendants did not actually receive a copy of the expert reports prior to
the 120-day deadline. (R.R. Vol. 2, p. 11) Thus, the health care liability claim
asserted against the MMC Defendants must be dismissed with prejudice.
V.
CONCLUSIONS
Quite simply, Plaintiffs failed to timely serve an expert report.
Consequently, the MMC Defendants are entitled to dismissal of Plaintiffs’
claims and an award of a reasonable and necessary attorney’s fees. The trial
court clearly failed to correctly apply the law when it denied the MMC
Defendants’ Motion for Dismissal. Accordingly, this Court should reverse the
order of the trial court and should remand the case with instructions that
Plaintiffs’ claims against the MMC Defendants should be dismissed with
prejudice and an award of attorneys’ fees and costs incurred be awarded to
the MMC Defendants.
VI.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellants McALLEN HOSPITALS, L.P., McALLEN HOSPITALS, L.P. d/b/a McALLEN MEDICAL
CENTER, McALLEN MEDICAL CENTER, McALLEN HOSPITALS, L.P. d/b/a
SOUTH TEXAS HEALTH SYSTEM and SOUTH TEXAS HEALTH SYSTEM
prays that the order denying Defendants McAllen Hospitals, L.P.; McAllen
Hospitals, L.P. d/b/a McAllen Medical Center; McAllen Medical Center;
McAllen Hospitals, L.P. d/b/a South Texas Health System; and South Texas
Health System’s Motion for Dismissal Pursuant to Section 74.351 of the
Texas Civil Practice and Remedies Code be reversed; that this Court remand
the case with instructions for the trial court to enter an order that dismisses
Appellees’ causes of action against Appellants with prejudice; and that
awards Appellants the attorneys’ fees they are entitled to recover, as prayed
for hereinabove, and that this Court grant Appellants such other and further
relief to which they may be justly entitled.
Respectfully submitted, HOLE & ALVAREZ, L.L.P.
P. O. Box 720547 McAllen, Texas 78504 Telephone No.: (956) 631-2891 Telecopier No.: (956) 631-2415 By: /s/ Ronald G. Hole Ronald G. Hole State Bar No. 09834200 ATTORNEYS FOR APPELLANTS MCALLEN HOSPITALS, L.P.; MCALLEN HOSPITALS, L.P. D/B/A MCALLEN MEDICAL CENTER; MCALLEN MEDICAL CENTER; MCALLEN HOSPITALS, L.P. D/B/A SOUTH TEXAS HEALTH SYSTEM; AND SOUTH TEXAS HEALTH SYSTEM CERTIFICATE OF COMPLIANCE In compliance with Tex.R.App.P. 9.4(i)(3), I, Ronald G. Hole, hereby certify that this brief contains 5,071 words. I have relied on the word count of
the computer program used to prepare this document, WordPerfect Office
11 . ®
/s/ Ronald G. Hole Ronald G. Hole *39 CERTIFICATE OF SERVICE I, Ronald G. Hole, hereby certify that a true and correct copy of the nd above Appellants’ Brief has, on this the 2 day of November 2015 , been
served via electronic transfer through an online filing service, to the
following counsel of record
Attorneys for Plaintiffs Attorneys for Defendants Hugo F.
Mario Rodriguez and Ludivina Iracheta, Carvajal, M.D., Texas Inpatient
Individually and as Next Friends of Pediatrics, P.A., Texas Pedicare,
XXXX XXXXXXXXXXXX, XX., a Minor P.A., South Texas Urgent Care,
Russell S. Post P.L.L.C. d/b/a North Central Urgent Care and Comp. Urgent Care, P.A.
Patrice B. Childress
Beck\Redden LLP Douglas M. Kennedy
1221 McKinney Street, Suite 4500 Brin & Brin, P.C.
Houston, Texas 77010 623 I-H 10 West San Antonio, Texas 78201
E-Mail: rpost@beckredden.com
E-Mail: pchildress@beckredden.com E-Mail: dkennedy@brinandbrin.com Attorneys for Defendants Joseph R. Alexander, Jr. RGV Pediatric Critical Care, P.A.
Mithoff Law Firm W. Richard Wagner
Penthouse, One Allen Center Wagner Cario, LLP
500 Dallas, Suite 3450
Houston, Texas 77002 7705 Broadway San Antonio, Texas 78209
E-Mail: jalexander@mithofflaw.com E-Mail: rwagner@wagnercario.com Brent Cordell Co-Counsel for Defendants
Smith & Hassler McAllen Hospitals, L.P., McAllen
1445 North Loop West, Suite 700 Hospitals, L.P. d/b/a McAllen
Houston, Texas 77008 Medical Center, McAllen Medical
E-Mail: Center, McAllen Hospitals, L.P.
brentcordell@smithhassler.com d/b/a South Texas Health System and South Texas Health System Viola G. Garza Russell W. Schell
Cowen & Garza, LLP Schell Cooley LLP
506 E. Dove Avenue 15455 Dallas Parkway, Suite 550
McAllen, Texas 78504 Addison, Texas 75001
E-Mail: viola@cowengarza.com E-Mail: Rschell@schellcooley.com *40 Guardian Ad Litem
Eloy Sepulveda
Attorney at Law
716 South Texas Blvd.
Weslaco, Texas 78596
E-Mail: sepulveda.law@gmail.com
/s/ Ronald G. Hole Ronald G. Hole BCC:ROD-MMC\APP
APPENDIX *42 INDEX OF APPENDIX Tab 1 Order Denying McAllen Hospital Defendants’ Motion to Dismiss, entered on August 5, 2015 Tab 2 Letter between Plaintiffs’ Counsel and Co-Defendant’s Counsel dated October 11, 2013 (Plaintiffs’ Exhibit No. 8)
Tab 3 T EX . C IV . P RAC . & R EM . §74.351(Vernon Supp. 2003) *43 CAUSE NO. C-2334-12-H
MARIO 1. RODRIGUEZ AND LIDUVINA § IN THE DISTRICT COURT
IRACHET A, Individually and as Next Friends §
Of XXXXX XXXXXX XXXXXXXXX, XX, §
A MINOR § §
Plaintiffs
§ 389 th JUDICIAL ])lSTRICT
vs. §
§
HUGO F. CARVAJAL, M.D.; TEXAS §
INPATIENT PEDIATRICS, P.A.; TEXAS §
PEDICARE, P.A.; RGV PEDIATRIC § §
CRITICAL CARE, P.A.; SOUTH TEXAS §
URGENT CARE, PLLC d/b/a NORTH §
CENTRAL URGENT CARE; and
COMPREHENSIVE URGENCT CARE, P.A. §
Defendants § HIDALGO COUNTY, TEXAS. ORDER DENYING McALLEN HOSPITAL DEFENDANTS' MOTION TO DISMISS CAME ON FOR HEARING this day McAllen Hospital Defendants' Motion to Dismiss and after considering the motion, the responses, the argument of counsel and the applicable law,
this comi is of the opinion that McAllen Hospital Defendants' Motion to Dismiss should be
DENIED; it is therefore
ORDERED that McAllen Hospital Defendants' Motion to Dismiss be and is hereby ,20 . Signed this S"-- day o~ tA!bo 15
*44 MITHOFF LAW ONR AU,EN CENTER RICHARD Wi\lUtEN MITHOlll l, P,C. }'eNTHOUSE SUITE .3450 JANm t, JORDII.N 500 OhLLAS STREET
SHERIF. Pons BECKMAN HOUSTON, fiXAS 77002 JOSEPH R. ALEXANDER. IR.
WARNER V. HOCKER TE!.EPHONJl. 713-654-1122 FACSIMILE 713-139-8085
OF COUNSEL www.mithofflaw.com WU.J.JJsM J. STRADLE.Y
DAVID H. BURROW October 11, 2013
Mr. Steve Gonzales
Mr. Edward Castillo
GONZALEZ & CASTILLO, LLP
1317 E. Quebec Avenue
Mcallen, Texas 78503
Re: Cause No. C-2334-12-H; Mario 1. Rodriguez and Ludivina Iracheta, Individually and as Next Friends of Mario Isaias Rodriguez, Jr., A Minor v. Hugo F. Carvajal, MD., el aZ.; in the 389 [110] District COUlt of Hidalgo County, Texas
Steve and Edward:
Attached please tind the following regarding the above referenced matter: 1. Report of Eliezer Nussbaum, M.D., dated October 9, 2013, and curriculUln vitae tiled pursuant to Tex. Civ. Prac. & Rem. Code § 74.351; and
2. Report of Susan Englemen, R.N., dated October 2,2013, and cuniculum vitae tiled pursuant to Tex. Civ. Pmc. & Rem. Code § 74.351.
This will confirm that you have been authorized by McALLEN HOSPITALS, L.P., McALLEN HOSPITALS, L.P, d/b/a McALLEN MEDICAL CENTER, McAlLEN
MEDICAL CENTER, McALLEN HOSPITALS, L.P. d/b/a SOUTH TEXAS HEALTH
SYSTEM and SOUTH TEXAS HEALTH SYSTEM to accept service of the above expert
repOlts and curricula vitae from Plaintiffs MARIO 1. ROmUGUEZ and LUmVINA
IRACHETA, Individually and as Next Friends of MARlO ISAIAS RODRIGUEZ, JR" A
Minor, as required by Civil Practice and Remedies Code Section 74.351.
Mr. Steve Gonzales
Mr. Edward Castillo
October 11,2013
page -2-
This will also ac1mowledge and confirm that these repolis and cunicula vitae have been received by you on behalf ofMcALLENHOSPIT ALS, L.P., McALLEN HOSPITALS,
L.P. d/b/a McALLEN MEDICAL CENTER, McALLEN MEDICAL CENTER, McALLEN
HOSPITALS, L.P. d/b/a SOUTH TEXAS HEALTH SYSTEM and SOUTH TEXAS
HEAL Tn SYSTEM, and that such receipt by you constitutes proper service on such entities
as required by Civil Practice and Remedies Code Section 74.351.
Please acknowledge that you have been authorized to accept service of these reports and curricula vitae on behalf of McALLEN HOSPITALS, L.P., McALLEN HOSPITALS,
L.P. d/b/a McALLEN MEDICAL CENTER, McALLEN MEDICAL CENTER, McALLEN
HOSPITALS, L.P. d/b/a SOUTH TEXAS HEALTH SYSTEM and SOUTH TEXAS
I-lEAL Tn SYSTEM by siglling below and returning to the undersigned.
Thank you very much.
Sincerely,
11 OFF LAW FIRM . Alexander, Jr.
'Ii~~ED TO ACCEPT SERVICE AS DESCRIBED ABOVE: . Steve Gonzales
Mr. Edward Castillo
JRAltmd
Enclosures
§ 74.351. Expert Report, TX CIV PRAC & REM § 74.351
Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annos)
Title 4. Liability in Tort
Chapter 74. Medical Liability (Refs & Annos)
Subchapter H. Procedural Provisions (Refs & Annos) This section has been updated. Click here for the updated version.
V.T.C.A., Civil Practice & Remedies Code § 74.351 § 74.351. Expert Report
Effective: September 1, 2005 to August 31, 2013 (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:
(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.
(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.
(d) to (h) [Subsections (d)-(h) reserved]
(i) Notwithstanding any other provision of this section, a claimant may satisfy any requirement of this section for serving an
expert report by serving reports of separate experts regarding different physicians or health care providers or regarding different
issues arising from the conduct of a physician or health care provider, such as issues of liability and causation. Nothing in
this section shall be construed to mean that a single expert must address all liability and causation issues with respect to all
physicians or health care providers or with respect to both liability and causation issues for a physician or health care provider.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 74.351. Expert Report, TX CIV PRAC & REM § 74.351
(j) Nothing in this section shall be construed to require the serving of an expert report regarding any issue other than an issue
relating to liability or causation.
(k) Subject to Subsection (t), an expert report served under this section:
(1) is not admissible in evidence by any party;
(2) shall not be used in a deposition, trial, or other proceeding; and
(3) shall not be referred to by any party during the course of the action for any purpose.
( 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).
(m) to (q) [Subsections (m)-(q) reserved]
(r) In this section:
(1) “Affected parties” means the claimant and the physician or health care provider who are directly affected by an act or
agreement required or permitted by this section and does not include other parties to an action who are not directly affected
by that particular act or agreement.
(2) “Claim” means a health care liability claim.
(3) [reserved]
(4) “Defendant” means a physician or health care provider against whom a health care liability claim is asserted. The term
includes a third-party defendant, cross-defendant, or counterdefendant.
(5) “Expert” means:
(A) with respect to a person giving opinion testimony regarding whether a physician departed from accepted standards of
medical care, an expert qualified to testify under the requirements of Section 74.401;
(B) with respect to a person giving opinion testimony regarding whether a health care provider departed from accepted
standards of health care, an expert qualified to testify under the requirements of Section 74.402; © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 74.351. Expert Report, TX CIV PRAC & REM § 74.351
(C) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages
claimed and the alleged departure from the applicable standard of care in any health care liability claim, a physician who
is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence;
(D) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages
claimed and the alleged departure from the applicable standard of care for a dentist, a dentist or physician who is otherwise
qualified to render opinions on such causal relationship under the Texas Rules of Evidence; or
(E) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages
claimed and the alleged departure from the applicable standard of care for a podiatrist, a podiatrist or physician who is
otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence.
(6) “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.
(s) Until a claimant has served the expert report and curriculum vitae as required by Subsection (a), all discovery in a health
care liability claim is stayed except for the acquisition by the claimant of information, including medical or hospital records or
other documents or tangible things, related to the patient's health care through:
(1) written discovery as defined in Rule 192.7, Texas Rules of Civil Procedure;
(2) depositions on written questions under Rule 200, Texas Rules of Civil Procedure; and
(3) discovery from nonparties under Rule 205, Texas Rules of Civil Procedure.
(t) If an expert report is used by the claimant in the course of the action for any purpose other than to meet the service requirement
of Subsection (a), the restrictions imposed by Subsection (k) on use of the expert report by any party are waived.
(u) Notwithstanding any other provision of this section, after a claim is filed all claimants, collectively, may take not more than
two depositions before the expert report is served as required by Subsection (a).
Credits
Added by Acts 2003, 78th Leg., ch. 204, § 10.01, eff. Sept. 1, 2003. Amended by Acts 2005, 79th Leg., ch. 635, § 1, eff.
Sept. 1, 2005.
V. T. C. A., Civil Practice & Remedies Code § 74.351, TX CIV PRAC & REM § 74.351
Current through the end of the 2015 Regular Session of the 84th Legislature
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© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
[1] These were the same attorneys that were provided with the expert reports of Dr. Nussbaum and Nurse Engleman by Appellees’ attorneys on or about October 11, 2013.
[2] References to Section 74.351 of the Texas Civil Practice and Remedies Code in this Brief refer to the statutory language effective at the time this suit was filed. The statute now provides, effective for actions commenced on or after September 1, 2013: “In a health care liability claim, a claimant shall, not later than the 120th day after the date each defendant's original answer is filed , serve on that 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.” Tex. Civ. Prac. & Rem. Code § 74.351 (emphasis added).
[3] Although Appellees previously asserted “[o]n August 20, 2013 Plaintiffs filed their First Amended Original Petition, which named the McAllen entities as Defendants in this action,” (C.R. 256), the clerk’s record leaves no doubt the Plaintiffs’ First Amended Original Petition was filed on August 7, 2013, not August 20, 2013. (C.R. 80, 89) August 20, 2013, was the date citations were served on Appellants. (R.R. Vol. 3, Def. Ex. 1)
[4] See Lamont A. Jefferson, Trends and Traps in Rules of Civil Procedure , 70 The Advoc. (Texas) 48, 59 (2015) (“For documents not filed electronically, the notable changes to Rule 21a are the . . . elimination of the ‘certified or registered’ mail requirement for traditional mail.”).