Uncategorized

IN THE FIRST COURT OF APPEALS

No.  XX-XX-XX-X-CV

IN THE FIRST COURT OF APPEALS

HOUSTON, TEXAS

XXXX X XXX, M.D.,

Appellant,

v.

XXXXX XXXX,

Appellee.

Appealed from the 61st Judicial District Court of

Harris County, Texas

Cause No. 2007-XXXXX

The Honorable John Donovan

BRIEF OF APPELLANT XXXX X XXX, M.D.

XXXX  XXXX  XXXX

  1. E. P.

State Bar No.

J.G.M.

State Bar No.

XXXX Weslayan, Suite XXX

Houston, Texas 77027

Telephone:  (713) XXX-XXXX

Facsimile:    (713) XXX-XXXX

ATTORNEYS FOR APPELLANT

XXXX X XXX, M.D.

ORAL ARGUMENT REQUESTED

XXXX X XXX, M.D.,

Appellant,

V.

XXXX XXXX,

Appellee

TABLE OF CONTENTS

APPENDIX

STATEMENT OF THE CASE

  1. Nature Of The Case.
  1. Course Of Proceedings.
  1. Trial Court Disposition.

ISSUES PRESENTED FOR REVIEW

STATEMENT OF FACTS

SUMMARY OF ARGUMENT

ARGUMENT AND AUTHORITIES

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING XXXX X XXX, M.D.’S MOTION TO DISMISS PURSUANT TO TEX. CIV. PRAC. & REM. CODE §74.351(B) BECAUSE PLAINTIFF FAILED TO TIMELY SERVE AN EXPERT REPORT AND CURRICULUM VITAE UPON DR. XXX.

  1. Standard Of Review.
  1. The Plaintiff Did Not Timely Serve An Expert Report And Curriculum Vitae Upon Dr. XXX and Dismissal of Plaintiff’s Claim is Thus Mandatory.
  1. Abatement of Plaintiff’s Claim Pursuant to Chapter 74 Does Not Extend The Deadline For Serving An Expert Report And Curriculum Vitae.
  1. The Abatement Of This Case Did Not Prevent Plaintiff From Serving Dr. XXX with An Expert Report And Curriculum Vitae.
  1. Plaintiff Is Not Entitled To An Extension Of Time In Which To File An Expert Report And Curriculum Vitae.

CONCLUSION

PRAYER

APPENDIX

  1. Plaintiff’s Original Petition filed December 28, 2007 (CR 2-5).
  1. Defendant’s Motion to Dismiss (CR 38-43).
  1. Order denying Defendant’s Motion to Dismiss (CR 79-80).

INDEX OF AUTHORITIES

CASES

American Transitional Care Ctrs. Of Texas, Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001)       3

Bowie Memorial Hospital v. Wright, 79 S.W.3d 48, 52 (Tex. 2002)……………………………………….. 1

Cayton v. Moore, 224 S.W.3d 440, 444 (Tex. App.—Dallas 2007, no pet.)………………………….. 1

De Checa v. Diagnostic Ctr. Hosp., Inc. 852 S.W.2d 935, 938 n. 5 (Tex. 1993)……………… 7, 9

Emeritus Corp. v. Highsmith, 211 S.W.3d 321 (Tex. App.—San Antonio 2006, no pet. 4, 5, 6, 7, 8, 9, 10

Garcia v. Marichalar, 185 S.W. 3d 70, 74 (Tex. App.—San Antonio 2005, no pet.)…….. 10

Hagedorn v. Tisdale, 73 S.W.3d 341, 348-349 (Tex. App.—Amarillo 2002, no pet)..7, 9

Herrera v. Seton NW Hospital, 212 S.W.3d 452, 460 (Tex. App.—Austin 2006, no pet.) 10

Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006)……………………………………………………………………….. 1

Regis v. Harris County Hospital Dist., 208 S.W.3d 64, 69 (Tex. App.—Houston [14th Dist.] 2006, no pet.)……………………………………………………………………………………………………………………………………………………………………………… 4

Shaikh v. Plaza Medical Center of Fort Worth, 2007 WL 3208592 Fort Worth(unpublished opinion) 4

Thoyakulathu v. Brennan, 192 S.W.3d 849, 852 (Tex. App.—Texarkana 2006, no pet.) 10

United Oil & Minerals, Inc. v. Costilla Energy, Inc., 1 S.W.3d 840, 846 (Tex. App.—Corpus Christi 1999, pet. dism’d)……………………………………………………………………………………………………………………………………………….. 8, 9

Valley Baptist Medical Center v. Azua, 198 S.W.3d 910, 915 (Tex. App.—Corpus Christi, no pet).         10

Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)……………………………………………………………………….. 1

STATUTES

Tex. Civ. Prac. & Rem. Code § 74.052…………………………………………………………………………………………….. xiv, 5

Tex. Civ. Prac. & Rem. Code § 74.351(b)……………………………………………… ix, x, xii, xv, 1, 2, 3, 5, 11

Tex. Civ. Prac. & Rem. Code § 74.351(c)……………………………………………………………………………………………. 10

Tex. Civ. Prac. & Rem. Code § 74.351(r)(6)………………………………………………………………………………………………………….. 2

Tex. Civ. Prac. & Rem. Code74.051…………………………………………………………………………………………………. 5

Tex. Civ. Prac. & Rem. Code74.051(a)…………………………………………………………………………………………….. 4

Tex. Civ. Prac. & Rem. Code74.052(a)………………………………………………………………………………………….. 4, 5

Tex. Rev. Civ. Stat. art. 4590i…………………………………………………………………………………………………………. 3

Tex. Civ. Prac. & Rem. Code § 74.351…………………………………………..……………1, 5, 10, 11

Tex. Civ. Prac. & Rem. Code § 74.351(a)…………………………………………………..…1, 2, 9, 10

STATEMENT OF THE CASE

 A.        Nature Of The Case.

Appellee, XXXX X XXXX (“herein Plaintiff”), sued Appellant, XXXX X XXX, M.D., (herein “Dr. XXX”), for alleged negligence in connection with claimed injuries he sustained after he sought medical treatment from Dr. XXX.  Clerk’s Record at 2-5 (herein “CR”), Appendix 1 (herein “Apx”).

B.        Course Of Proceedings.

Plaintiff filed suit against Dr. XXX on December 28, 200X.  CR at 2-5; Apx 1.  Prior to filing suit, Plaintiff did not provide proper notice and a Chapter 74 compliant authorization, failing to comply with the notice requirements of the Texas Medical Liability Act, (herein “TMLA”) and on April 3, 2008, Defendant filed a Verified Motion to Abate and Order requesting that the case be abated until such time as Plaintiff provided Notice of a Healthcare Liability Claim and a Chapter 74 compliant authorization.  CR at 21-27.  Plaintiff agreed to the Motion to Abate and the Order was filed on April 9, 2008.  The Court signed the Order on the Motion to Abate on April 17, 2008.  CR at 36-37.

The 120 day deadline for Plaintiff to serve a critical expert report and curriculum vitae pursuant to Chapter 74 was April 28, 2007.  Plaintiff failed to comply with the requirements of the TMLA by failing to serve an expert report upon Dr. XXX by April 28, 2007.  Accordingly, on May 2, 2008, four (4) days after the expiration of the 120 day deadline to serve a statutorily compliant expert report, Dr. XXX filed his Motion to Dismiss pursuant to Texas Civil Practice & Remedies Code §74.351(b), based upon Plaintiff’s failure to file an expert report and curriculum vitae as required by the TMLA.  CR at 38-43; Apx 2.

C.         Trial Court Disposition.

On May 23, 2008, the trial court entered an Order denying Dr. XXX’s Motion to Dismiss.  CR at 79-80; Apx 3.  On May 30, 2008, Dr. XXX filed his Notice of Appeal.  CR at 84-85.

ISSUES PRESENTED FOR REVIEW

Issue I.           WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING XXXX X XXX, M.D.’S MOTION TO DISMISS PURSUANT TO TEX. CIV. PRAC. & REM. CODE §74.351(B).  WHEN PLAINTIFF FAILED TO SERVE AN EXPERT REPORT AND CURRICULUM VITAE WITHIN 120 DAYS OF FILING SUIT.

STATEMENT OF FACTS

Plaintiff first sought medical care from Dr. XXX in January 2006 for an eye exam.  Plaintiff treated with Dr. XXX until March 2006, when he was referred to a colleague of Dr. XXX’s.  Thereafter, Plaintiff filed a lawsuit on his own behalf against Dr. XXX in December 2007, alleging that Dr. XXX was negligent in failing to diagnose wet macular degeneration.  CR at 2-5; Apx 1.  Although filing suit as a pro se Plaintiff, Plaintiff served Requests for Disclosure with his Original Petition.  Id.  Prior to filing suit, Plaintiff did not provide Dr. XXX with notice of a healthcare liability claim or a Chapter 74 compliant authorization as required by the TMLA.  Thus, on April 3, 2008 Defendant filed a Verified Motion to Abate and accompanying Order on the basis that Plaintiff failed to provide the requisite notice of healthcare liability claim and compliant authorization; and thus, Defendant could not obtain pertinent medical records needed for the proper defense of the case.  CR at 21-25.

On April 8, 2008, Plaintiff’s counsel, XXXX XXXX, filed a Notice of Appearance on behalf of Plaintiff.  CR at 33-34.  That same day, Plaintiff’s counsel corresponded with Defendant’s counsel by letter agreeing to the abatement sought by the Defendant.[1]  Thus, an Agreed Order on Defendant’s Motion to Abate was filed on April 9, 2008 and signed by the Court on April 17, 2008.  CR at 36-37.  Shortly thereafter, on April 28, 2007 the 120 day deadline to serve a statutorily compliant expert report and curriculum vitae pursuant to Chapter 74 of the Texas Civil Practice & Remedies Code expired, and Plaintiff failed to serve a statutorily compliant expert report and curriculum vitae.  On May 2, 2008 Dr. XXX filed his Motion to Dismiss pursuant to Texas Civil Practice & Remedies Code §74.351(b) based upon Plaintiff’s failure to timely file and serve an expert report as required by the TMLA, which was file stamped by the Harris County District Clerk on May 4, 2008.  CR at 38-43; Apx. 2.  The Motion to Dismiss was supported by an attorney’s fee affidavit from Dr. XXX’s attorney, B. E. P..  CR at 42-43.

Dr. XXX set Defendant’s Motion to Dismiss for hearing on May 23, 2008 before the Honorable John Donovan. CR at 46-47.  Dr. XXX’s Motion to Dismiss was filed on the basis that Plaintiff did not serve an expert report and curriculum vitae on Dr. XXX as required by Chapter 74 of Texas Civil Practice & Remedies Code.  CR at 38-43; Apx. 2.  Because Plaintiff failed to serve an expert report and curriculum vitae upon Dr. XXX within 120 days of filing suit, dismissal of Plaintiff’s claims against Dr. XXX was mandatory.  On May 13, 2008, Plaintiff filed a response to Defendant’s Motion to Dismiss.  CR at 48-62.  Plaintiff’s counsel argued in this response that he did not serve an expert report on behalf of his client because of his unilateral understanding that the abatement suspended the proceedings; and thus, his client was not required to file his expert report and curriculum vitae within 120 days.  Id.  Plaintiff attached a report from XXXX XXXX, M.D. to this response. Id.  Dr. XXXX’s curriculum vitae was not provided.

Defendant filed a Reply to Plaintiff’s Response to Defendant’s Motion to Dismiss setting forth that pursuant to Chapter 74 and applicable caselaw, an abatement does not extend the Chapter 74 expert report/curriculum vitae deadline; and thus, because Plaintiff missed the 120 day deadline for filing an expert report and curriculum vitae, the Motion to Dismiss must be granted. CR at 65-74.   The Reply was supported by an affidavit of Defendant’s attorney, B. E. P., which provided evidence to the court that there was no agreement, written or otherwise, between the parties to extend the 120 day expert report and curriculum vitae deadline.  Id.  The Reply also set forth that Plaintiff was not entitled to an extension of the 120 day deadline, as the applicable statutes do not allow for an extension to serve an expert report and curriculum vitae when the plaintiff completely fails to timely serve an expert report and curriculum vitae.  Id.  On May 23, 2008 a hearing was held on Defendant’s Motion to Dismiss, at which time the trial court denied Defendant’s Motion to Dismiss.  CR at 79-80

SUMMARY OF ARGUMENT

Plaintiff’s cause of action against Dr. XXX is a healthcare liability claim in which he alleges negligence in failing to diagnose wet macular degeneration.  Accordingly, as in all healthcare liability claims, Plaintiff was required to serve Dr. XXX with a statutorily compliant expert report and curriculum vitae within 120 days of filing suit.  The case was abated pursuant to Texas Civil Practice and Remedies Code §74.052, as Plaintiff did not provide the statutorily required notice or medical authorization.  Notwithstanding this, there was no agreement to extend any deadlines in this case.  Thus, the fact that the case was abated in accordance with Chapter 74 had no bearing on the 120 day expert report/curriculum vitae deadline or the Plaintiff’s ability to serve Dr. XXX’s counsel with a statutorily compliant expert report and curriculum vitae.  When Plaintiff failed to serve Dr. XXX with a statutorily compliant expert report and curriculum vitae within 120 days of filing suit, dismissal of Plaintiff’s claims against Dr. XXX became mandatory.

No action was required of the trial court with respect to the Chapter 74 report deadline, and the abatement of Plaintiff’s claims against Dr. XXX did not prevent Plaintiff from serving Dr. XXX’s counsel with an expert report and curriculum vitae.  Chapter 74 does not give the court discretion to deny a Motion to Dismiss based on a failure to file an expert report.  Further, when a Plaintiff fails to serve an expert report and curriculum vitae within 120 days of filing suit, the Court cannot grant an extension absent an agreement between the parties to extend the 120 day deadline.  Accordingly, the trial court was required to dismiss Plaintiff’s claims against Dr. XXX with prejudice and award attorney’s fees when Plaintiff failed to serve Dr. XXX with an expert report and curriculum vitae within 120 days of filing suit.  Thus, dismissal of Plaintiff’s case against Dr. XXX is required as the TMLA mandates dismissal of Plaintiff’s cause of action against Dr. XXX for failing to comply with the 120 day expert report/curriculum vitae requirement.  Tex. Civ. Prac. & Rem. Code §74.351(b). As such, the trial court abused its discretion by failing to dismiss Plaintiff’s claims with prejudice.

 

ARGUMENT AND AUTHORITIES

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING XXXX X XXX, M.D.’S MOTION TO DISMISS PURSUANT TO TEX. CIV. PRAC. & REM. CODE §74.351(B) BECAUSE PLAINTIFF FAILED TO TIMELY SERVE AN EXPERT REPORT AND CURRICULUM VITAE UPON DR. XXX.

A.        Standard Of Review.

An appellate court reviews a trial court’s denial of a motion to dismiss pursuant to Section 74.351 of the TMLA under an abuse of discretion standard. See Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006) (per curiam) (discussing the MLIIA); Cayton v. Moore, 224 S.W.3d 440, 444 (Tex. App.—Dallas 2007, no pet.).  A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles.  BowieMemorial Hospital v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).  A trial court also abuses its discretion if it fails to analyze or apply the law correctly.  The trial court has no discretion in determining what the law is or in applying the law to the facts.  See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).  A clear failure by the trial court to apply the law correctly constitutes an abuse of discretion. Id.

B.        The Plaintiff Did Not Timely Serve An Expert Report And Curriculum Vitae Upon Dr. XXX and Dismissal of Plaintiff’s Claim is Thus Mandatory

Texas Civil Practice and Remedies Code §74.351 requires a plaintiff in a healthcare liability claim to serve a critical expert report on each defendant within 120 days of filing suit.  Specifically, Section 74.351(a) states:

(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 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.

Tex. Civ. Prac. & Rem. Code §74.351(a).  An “expert report” is “a written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.”  Id. at §74.351(r)(6).

Texas law is clear that if an expert report has not been served within the 120 day post-filing deadline, the claim against that defendant must be dismissed with prejudice and costs and attorney fees awarded to that defendant.  Tex. Civ. Prac. & Rem. Code § 74.351(b).  (Emphasis added.)  Texas Civil Practice and Remedies Code §74.351(b) requires the court to dismiss the Plaintiff’s claim with prejudice and to award reasonable attorneys fees and costs of court if the requisite expert report and curriculum vitae is not timely served.  Specifically, §74.351(b) states:

(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

Tex. Civ. Prac. & Rem. Code §74.351(b).  (Emphasis added.)

The use of the word “shall” has been held to require the trial court to dismiss with prejudice on the motion of the defendant when the statutory period has passed without a proper report being filed.  American Transitional Care Ctrs. Of Texas, Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001)(discussing dismissal requirements for language of Chapter 74’s predecessor Tex. Rev. Civ. Stat. art. 4590i)(Emphasis added.)  A plaintiff is required to serve an expert report which implicates each defendant within 120 days of filing the lawsuit.  In this case, no report was filed; and thus, the Plaintiff’s claims must be dismissed.  Tex. Civ. Prac. & Rem. Code §74.351(b)

This suit was filed by the Plaintiff against Dr. XXX on December 28, 2007.  CR. at 2-5; Apx 1.  The one hundred twenty day (120) deadline by which the Plaintiff had to provide a curriculum vitae and expert report which complied with the statutory requisites expired on April 28, 2008.  Plaintiff served no report or curriculum vitae upon Dr. XXX within 120 days of filing suit; and thus, because Plaintiff failed to serve Dr. XXX with an expert report and curriculum vitae, following the expiration of the one hundred twenty (120) day deadline, Dr. XXX filed a Motion to Dismiss.  CR at 38-43; Apx 2.  Because Plaintiff failed to timely serve an expert report and curriculum vitae, the trial court had no discretion but to dismiss Plaintiff’s claims against Dr. XXX with prejudice and award attorney’s fees as prescribed by Chapter 74.  This action by the trial court was mandatory pursuant to statute, and therefore the trial court acted unreasonable and without reference to guiding rules or principles in denying Dr. XXX’s Motion to Dismiss.  The trial court’s failure to dismiss Plaintiff’s claims with prejudice constituted an abuse of discretion.

C.         Abatement of Plaintiff’s Claim Pursuant to Chapter 74 Does Not Extend The Deadline For Serving An Expert Report And Curriculum Vitae.

The abatement of this case so that Plaintiff could provide the statutorily required notice and authorization does not extend the Chapter 74 expert report deadline.   Tex. Civ. Prac. & Rem. Code § 74.052(a) states that a Plaintiff’s failure to provide proper authorization for release of medical information shall abate all further proceedings against the physician receiving the notice until 60 days following receipt by the physician of the required authorization.  Tex. Civ. Prac. & Rem. Code 74.052(a).  An agreement to abate a case to permit a plaintiff to comply with the notice requirement of Chapter 74 does not toll or extend the 120 day deadline for serving an expert report.  SeeEmeritus Corp. v. Highsmith, 211 S.W.3d 321 (Tex. App.—San Antonio 2006, no pet.)(holding agreed abatement to allow Plaintiff to comply with 60 day notice of §74.051(a) did not extend the 120 day deadline or constitute an agreement of the parties to extend); See also, Regis v. Harris County Hospital Dist., 208 S.W.3d 64, 69 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (an abatement of the proceedings under section 74.052(a) does not toll or extend the 120-day period for filing an expert report); See also Shaikh v. Plaza Medical Center of Fort Worth, 2007 WL 3208592 Fort Worth (unpublished opinion)(abatement does not relieve a health care liability plaintiff from obligation to serve an expert report 120 days after filing claim).

In Emeritus, the Plaintiff filed suit against an assisted living facility and its owner corporation, Emeritus, for negligence, gross negligence and malice, premises liability, breach of contract, fraud and breach of the Patient’s bill of rights.   Emeritus, 211 S.W.3d at 324.  Shortly after suit was filed, the Plaintiff provided the statutorily required notice of a healthcare liability claim without an authorization.  Id.  Emeritus answered and because it had not received the sixty day pre-suit notice mandated by statute, moved to abate.  Id.  The trial court signed an order abating the case until 60 days from the date Emeritus received notice under Section 74.051 of the Texas Civil Practice & Remedies Code and the authorization required by §74.052.  Thereafter, the Plaintiff sent a second notice along with a statutorily required authorization.  Id.

When the Plaintiff failed to provide an expert report within 120 days of filing suit, Emeritus moved to dismiss the lawsuit with prejudice pursuant to §74.351(b) of the Texas Civil Practice & Remedies Code.  In response, the Plaintiff argued that her claims were not healthcare liability claims; and, to the extent they were, the expert witness deadline had not expired because the case was abated for sixty (60) days.  The Plaintiff further argued that the defendant, by agreeing to abate the case, agreed to extend the deadline for serving an expert report.  Id. at 324-325.  In the alternative, the Plaintiff sought an extension of time in which to file her expert report pursuant to §74.351.  The trial court denied the motion to dismiss on the grounds that an agreement was reached to enter an order abating all proceedings for (60) sixty days and granted Plaintiff a thirty (30) day extension in which to file an expert report. Id.

On appeal, Emeritus argued that the trial court erred in denying its’ Motion to Dismiss because the Plaintiff failed to timely serve an expert report.Id. at 326.  The Plaintiff argued first, that the parties’ agreement to abate the case extended the deadline for serving her expert report; and second, that the trial court’s order abating the case had the legal effect of extending the deadline. Id. at 328.  The Court of Appeals agreed with Emeritus’ argument, reversing the trial court’s order denying Defendant’s Motion to Dismiss and dismissed the Plaintiff’s claims with prejudice. Id. at 330.  Addressing the issue of whether there was an agreement to extend the 120 deadline for serving an expert report, the Court relied upon the order on the abatement which simply stated the case was “abated,” that there was no evidence of what the attorneys meant by this phrase and that there was no evidence that the parties agreed to extend the deadline for serving the report. Id. at 329.  The Court of Appeals therefore held that “the agreement to abate the case was simply that: an agreement to ‘abate the case’ for sixty days.”  Id.    The only evidence that alluded to an agreement to extend was the affidavit of the Plaintiff’s attorney in which she stated that it was her understanding that the agreement included the suspension of all matters including the suspension of any deadlines to file a an expert report.  In holding that there was no agreement to extend the deadline for serving an expert report, the court reasoned that a unilateral understanding is not an agreement.  Id.

The Emeritus Court next turned to the legal question of whether an abatement extends the deadline for serving an expert report.  Id.   Relying upon the Amarillo Court of Appeals’ reasoning in Hagedorn v. Tisdale, 73 S.W.3d 341, 348-349 (Tex. App.—Amarillo 2002, no pet), the court opined that a Plaintiff should not be rewarded with additional time for the filing of an expert report by his failure to comply with the statutory notice requirement; and that if this were the case, a healthcare provider would be put in a position of having to choose whether to seek an abatement for the failure of the plaintiff to give the statutorily required 60 day notice or to hold the plaintiff to the statutorily required deadline for serving the expert report.  Emeritus, 211 S.W. 3d at 329.  Also relying on Hagedorn, the Court further opined as follows:

We cannot believe that the intent of the legislature to discourage frivolous lawsuits and encourage settlement of claims would be served  by such a construction since the legislature has determined that failing to timely file an expert reports means that the claim is either frivolous or at best has been prematurely brought.

Id. at 329-330 citing Hagedorn, 73 S.W.3d at 348.  Again relying on the rationale in Hagedorn, the Emeritus Court opined that in light of the plaintiff’s prerogative ‘to some extent’ to choose when to file suit and then existing means for obtaining an extension of the deadline, it “failed to see how the claimant is damaged by being required to adhere to the statutory requirement.” Id.  at 330 citing Hagedorn, 73 S.W.3d at 348.  The Court of Appeals in Emeritus also opined that the Hagedorn holding is not inconsistent with the law of abatement generally, as an abatement does not necessarily stay all proceedings.  Id.; See also De Checa v. Diagnostic Ctr. Hosp., Inc. 852 S.W.2d 935, 938 n. 5 (Tex. 1993)(noting that plaintiff remains free during an abatement to join additional defendants); See also, United Oil & Minerals, Inc. v. Costilla Energy, Inc., 1 S.W.3d 840, 846 (Tex. App.—Corpus Christi 1999, pet. dism’d)(holding abatement did not preclude plaintiff from settling and voluntarily dismissing or non-suiting claim).  Ultimately, the Emeritus Court held that an agreement to abate a case to permit a plaintiff to comply with the sixty-day notice requirement does not extend the time for serving an expert report.  Id. at 330.  (Emphasis added.)

The Emeritus holding is applicable to the present case.  The abatement in this case for Plaintiff to provide proper notice and an authorization to Dr. XXX pursuant to Chapter 74, was merely that: an abatement for Plaintiff to provide notice and a Chapter 74 compliant authorization, so that Defendant could obtain pertinent medical records needed for the proper defense.  CR. at 36-37.  The parties did not have an agreement parties to extend the Chapter 74 deadline.  CR. at 73-74.  Further, the parties in this case had no discussion of extending any deadlines in the case.  Id.   The fact that Plaintiff’s counsel supposedly misconstrued the order did not extend the Chapter 74 report deadline.  The Chapter 74 caselaw is clear, the abatement of a case, whether by the Court upon motion of a healthcare provider or by agreement, does not extend the mandatory 120 day deadline established by Chapter 74 of the Texas Civil Practice & Remedies Code.  Plaintiff’s counsel’s alleged unilateral understanding to the contrary was not an agreement to extend this deadline. See Emeritus, 211 S.W. 3d at 329.   Thus, the abatement in this case did not toll or extend the 120 day deadline in which Plaintiff was to serve Dr. XXX with an expert report and curriculum vitae.  Plaintiff should thus, not be rewarded with extra time to serve a Chapter 74 compliant expert report and curriculum vitae when Plaintiff failed to comply with the requirements of Chapter 74 to begin with.  See Hagedorn, 73 S.W.3d 341;  see also Emeritus, 211 S.W.3d 321.

D.        The Abatement Of This Case Did Not Prevent Plaintiff From Serving Dr. XXX with An Expert Report And Curriculum Vitae.

An abatement does not prevent all actions in a suit.  A Plaintiff remains free during an abatement to join additional defendants.  See De Checa, 852 S.W.2d at 938, n. 5.   A Plaintiff can voluntarily dismiss or nonsuit a claim during an abatement.  See also, United Oil & Minerals, Inc., 1 S.W.3d 840.  Certainly, if a Plaintiff can join parties during an abatement, he can also serve a party with a document.  (Emphasis added.)  Further, nothing in the abatement order in this case precluded Plaintiff’s counsel from serving a Chapter 74 compliant expert report and curriculum vitae.  Further, Chapter 74 report deadline does not require any action by the Court.  Certainly, if a Plaintiff can join additional defendants during an abatement, which requires a plaintiff to file an amended petition and serve new parties with a lawsuit, there is no reason a plaintiff cannot serve a party with an expert report and curriculum vitae during an abatement.  Further still, there was no agreement between the Plaintiff and Defendant which prevented Plaintiff from serving an expert report and curriculum vitae and no agreement to extend the 120 day deadline.  The abatement of this case in order for Plaintiff to comply with the notice requirements of Chapter 74 did not prevent or restrict Plaintiff from servingan expert report and curriculum vitae in compliance with Texas Civil Practice & Remedies Code §74.351(a) which requires Plaintiff to serve on each party or their attorney, an expert report and curriculum vitae within 120 days of filing suit.  Tex. Civ. Prac. & Rem. Code §74.351(a)(Emphasis added.)

E.         Plaintiff Is Not Entitled To An Extension Of Time In Which To File An Expert Report And Curriculum Vitae.

The trial court is not permitted to grant an extension to file a Chapter 74 report when an initial report is not timely filed.  The only purpose for which a trial court is authorized to grant an extension under Chapter 74 is to cure a deficiency in a report which has been timely served.  Tex. Civ. Prac. & Rem. Code §74.351(c). Regardless of the circumstances, when no expert report is served within 120 days of filing the claim, a trial court has no authority to grant an extension.  Garcia v. Marichalar, 185 S.W. 3d 70, 74 (Tex. App.—San Antonio 2005, no pet.); see also Emeritus, 211 S.W.3d at 326 (section 74.351 simply does not authorize a court ordered extension for any reason other than to cure a deficient report).  If a plaintiff does not timely file an expert report, the trial court has no discretion to do anything other than to dismiss the case.  See ValleyBaptist Medical Center v. Azua, 198 S.W.3d 910, 915 (Tex. App.—Corpus Christi, no pet).); Herrera v. Seton NW Hospital, 212 S.W.3d 452, 460 (Tex. App.—Austin 2006, no pet.)(noting that plaintiff’s failure to timely file and expert report divested the district court of discretion to do anything but dismiss);Thoyakulathu v. Brennan, 192 S.W.3d 849, 852 (Tex. App.—Texarkana 2006, no pet.) (absent an agreement among the parties to extend the time to serve expert reports, the trial court has no discretion but to dismiss the case with prejudice).

In this case, Plaintiff conceded that he did not serve Defendant with a Chapter 74 report and curriculum vitae within 120 days of filing suit.  CR. at 48-62.  Thus, according to the caselaw governing Chapter 74, Plaintiff is not entitled to an extension of time in which to file an expert report and curriculum vitae and Plaintiff’s claims against Dr. XXX must be dismissed with prejudice and attorney’s fees awarded.

CONCLUSION

The trial court abused its discretion in denying Dr. XXX’s Motion to Dismiss as Plaintiff failed to serve Dr. XXX with an expert report and curriculum vitae within 120 days of filing suit.  Texas Civil Practice & Remedies Code §74.351 required the trial court to dismiss this case with prejudice and award reasonable attorney’s fees.  The trial court abused its discretion in failing to do so.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant, XXXX X XXX, M.D., prays that upon review of the facts of this case and the applicable caselaw, this Honorable Court will reverse the trial court’s order, rule that the trial court abused its discretion in denying XXXX X XXX, M.D.’s Motion to Dismiss pursuant to Tex. Civ. Prac. & Rem. Code §74.351(b), render judgment that Plaintiff’s cause of action is dismissed with prejudice for the failure to comply with Section 74.351 of the Texas Civil Practice & Remedies Code and award attorney’s fees.  Dr. XXX further prays that this court will tax attorney’s fees and costs of court against Plaintiff, and for such other and further relief to which Appellant may show himself to be justly entitled.

Respectfully submitted,

XXXX  XXXX  XXXX

By:________________________

  1. G.M.

SBN:

E. P.

SBN:

XXXX Weslayan, Suite 300

Houston, Texas 77027

713) 961-XXXX Telephone

(713) 961-XXXX Facsimile

 

ATTORNEYS FOR APPELLANT,

XXXX X XXX, M.D.

CERTIFICATE OF SERVICE

I hereby certify that the foregoing document has been served on counsel for Appellee via certified mail, return receipt requested on this the ______ day of July, 2008 pursuant to Rule 9.5 of the Texas Rules of Appellate Procedure as follows:

Via CM/RRR

XXXX XXXX

XXXX Allen Parkway, Suite 102

Houston, 77019

 

[1]   There were no other agreements reached between the parties.

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