Opinion issued October = 4,=20 2007
For=20 The
UNIVERSITY OF TEXAS=20
HEALTH SCIENCE CENTER AT HOUSTON, Appellant FRANK =
GUTIERREZ,=20
INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF THERESA =
GUTIERREZ,=20
DECEASED, AND AS NEXT FRIEND OF MICHELLE GUTIERREZ, A MINOR, =
AMANDA=20
GUTIERREZ, FRANK GUTIERREZ JR., and PATRICIA RAMIREZ,=20
Appellees
On =
Appeal from the=20
11th District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 2005-73415
This is an interlocutory appeal =
from the=20
denial of appellant's, University of Texas Health Science Center =
at=20
Houston ("UTHSCH"), motion to dismiss health-care-liability claims =
brought=20
against it by appellees, Frank Gutierrez, individually and as=20
representative of the estate of Theresa Gutierrez, deceased, and =
as next=20
friend of Michelle Gutierrez, a minor, Amanda Gutierrez, Frank =
Gutierrez=20
Jr., and Patricia Ramirez. UTHSCH filed its motion seeking =
dismissal of=20
appellees' claims on the basis that appellees had failed to serve =
it with=20
an expert report as required by section 74.351(a) of the Texas =
Civil=20
Practice and Remedies Code. See Tex. Civ. Prac. & =
Rem. Code=20
Ann. =A7 74.351(a) (Vernon Supp. 2006) (regarding =
medical-liability claims).=20
We conclude that section 74.351(b) mandates dismissal of this case =
based=20
on appellees' failure to serve properly UTHSCH with an expert =
report.=20
See id. 74.351(b).
Appellees =
brought suit=20
in November of 2005 against multiple medical personnel and =
Memorial=20
Hermann Hospital, alleging negligent health care and treatment of =
Theresa=20
Gutierrez resulting in her death after she had sustained injuries =
in an=20
automobile accident. Within 120 days of filing suit, appellees =
served upon=20
Dr. Christiane Vogt-Harenkamp, a named defendant and employee of =
UTHSCH,=20
the required expert report. See id. =A7 74.351(a). UTHSCH =
was not a=20
party to the suit at that time. The contents of the report are =
unknown=20
and, apparently, its sufficiency is uncontested. On August 10, =
2006,=20
appellees non-suited Vogt-Harenkamp and the other named defendants =
and=20
substituted UTHSCH as the sole defendant in their =
medical-negligence=20
claim. See In March of 2007, UTHSCH filed =
a motion=20
to dismiss the case based on appellees' failure to serve it with =
an expert=20
report as required by section 74.351(a). UTHSCH voluntarily =
withdrew that=20
motion but, in May, filed an amended motion to dismiss on the same =
grounds. After a hearing, the trial court denied the motion to =
dismiss.=20
UTHSCH brings one issue on =
appeal: does=20
appellees' failure to serve UTHSCH timely with an expert report =
result in=20
dismissal of appellees' cause of action? We=20
generally review rulings on a motion to dismiss under section =
74.351(b)=20
for abuse of discretion. Intracare Hosp. N. v. Campbell, =
222=20
S.W.3d 790, 794 (Tex. App.--Houston [1st Dist.] 2007, no pet.) =
(citing=20
Estate of Regis ex rel. McWashington v. Harris County Hosp. =
Dist.,=20
208 S.W.3d 64, 67 (Tex. App.--Houston [14th Dist.] 2006, no =
pet.)). The=20
ruling under review in this case concerns a purely legal issue: =
was UTHSCH=20
served in accordance with section 74.351(a)? We review questions =
of law=20
de novo. See id. at 794-95 (citing Brown v.=20
Villegas, 202 S.W.3d 803, 805 (Tex. App.--San Antonio 2006, =
no=20
pet.)).
The current=20
version of section 74.351(a) applies to those causes of action =
that=20
accrued after September 1, 2005. Because appellees' cause of =
action=20
accrued prior to September 1, 2005, the former version applies. =
See=20
Act of June 2, 2003, 78th Leg., R.S., ch. 204, =A7 10.01, =
2003 Tex.=20
Gen. Laws 847, 875, amended by Act of May 18, 2005, 79th =
Leg.,=20
R.S., ch. 635, =A7=A7 1-3, 2005 Tex. Gen. Laws 1590. The =
distinction in the=20
current version is that the time now runs from the date that the =
original=20
petition was filed, rather than from the filing of a =
health-care-liability=20
claim. Tex. Civ. Prac. & Rem. Code Ann. =A7 74.351(a). Both =
versions=20
require that the reports be "served" on "each" defendant. Although =
our=20
analysis is not affected by which version we apply, we cite to =
that=20
version applicable to appellees' cause of action. At the time=20
that appellees' cause of action accrued, section 74.351 provided, =
in=20
pertinent part: (a) In a=20
health care liability claim, a claimant shall, not later than the =
120th=20
day after the date the claim was filed, serve on each party or the =
party's=20
attorney one or more expert reports, with a curriculum vitae of =
each=20
expert listed in the report for each physician or health care =
provider=20
against whom a liability claim is asserted. The date for serving =
the=20
report may be extended by written agreement of the affected =
parties. Each=20
defendant physician or health care provider whose conduct is =
implicated in=20
a report must file and serve any objection to the sufficiency of =
the=20
report not later than the 21st day after the date it was served, =
failing=20
which all objections are waived.
(b) If, as=20
to a defendant physician or health care provider, an expert report =
has not=20
been served within the period specified by subsection (a), the =
court, on=20
the motion of the affected physician or health care provider, =
shall,=20
subject to Subsection (c), enter an order that: (1) awards=20
to the affected physician or health care provider reasonable =
attorney's=20
fees and costs of court incurred by the physician or health care =
provider;=20
and
(2)=20
dismisses the claim with respect to the physician or health care =
provider,=20
with prejudice to the refiling of the claim. Act of June=20
2, 2003, 78th Leg., R.S., ch. 204, =A7 10.01, 2003 Tex. Gen Laws =
847, 875,=20
amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, =
=A7=A7 1-3,=20
2005 Tex. Gen. Laws 1590.
Section=20
74.351 does not define the term "serve." We look to the Code =
Construction=20
Act for guidance. Herrera v. Seton Nw. Hosp., 212 S.W.3d =
452, 459=20
(Tex. App.--Austin 2006, no pet.). The Court of Criminal Appeals =
states=20
that "'words and phrases that have acquired a technical or =
particular=20
meaning, whether by legislative definition or otherwise, shall be=20
construed accordingly.'" Id. (quoting Tex. Gov't Code =
Ann. =A7=20
311.011(b) (Vernon 2005)). "Serve" and "served" have distinct and =
familiar=20
legal meanings. Id. (citing Tex. R. Civ. P. 21a). Given =
the=20
applicability of the Rules of Civil Procedure to health care =
liability=20
claims, and the use of "serve" and "served" in the statute, we =
determine=20
that the Legislature intended for claimants to comply with rule =
21a to=20
fulfill the requirements of section 74.351(a). Id.; =
Kendrick=20
v. Garcia, 171 S.W.3d 698, 703-04 (Tex. App.--Eastland 2005, =
pet.=20
denied). This construction is supported by a legislative change =
that=20
replaced the word "furnish" with "serve." See Herrera, =
212 S.W.3d=20
at 459. Prior to=20
the enactment of Chapter 74, medical-liability claims were =
governed by=20
article 4590i of the Texas Revised Civil Statutes, which required =
a=20
health-care-liability claimant to furnish an expert =
report within=20
180 days after the claim was filed. Tex. Rev. Civ. Stat. Ann. art. =
4590i,=A7=20
13.01(d), repealed by Act of 2003, 78th Leg., R.S., ch. =
204, =A7=20
10.09, 2003 Tex. Gen. Laws 884. When the legislature=20
repealed article 4590i in 2003 and enacted Chapter 74, it replaced =
the=20
word "furnish" with the term "serve." We presume that the =
Legislature=20
enacted the statutory change with knowledge of existing law. =
See=20
Herrera, 212 S.W.3d at 459 (citing Acker v. Tex. Water=20
Comm'n, 790 S.W.2d 299, 301 (Tex. 1990) ("A statute is =
presumed to=20
have been enacted by the legislature with complete knowledge of =
the=20
existing law and with reference to it.")). Therefore, we may also =
presume=20
its awareness of the meaning attached to the word "serve."=20
Id. Rule 21a=20
authorizes four methods for service upon a party: (1) delivery in =
person,=20
by agent, or by courier-receipted delivery; (2) certified or =
registered=20
mail; (3) telephonic document transfer; or (4) such other manner =
as the=20
court in its discretion may direct. Tex. R. Civ. P. 21a. The party =
or=20
attorney of record must certify to the court compliance with this =
rule in=20
writing over signature and on the filed instrument. Id.=20
Appellees=20
did not use any of the methods authorized by rule 21a to serve the =
expert=20
report on UTHSCH before the expiration of the statutory deadline.=20
Appellees argue that service does not have to comply with rule =
21a, but,=20
rather, that failure to comply with rule 21a is "fatal to Courts=20
presume that the entire statute is to be effective and a just and=20
reasonable result is intended. Id. Even if a statute is=20
unambiguous, courts may consider the statute's objective; =
circumstances of=20
its enactment; its legislative history; common law; former =
statutes; laws=20
on the same or similar subjects; consequences . Given the express legislative intent of Chapter 74 and the=20
intentional legislative act of replacing the word "furnish" with =
"serve"=20
in section 74.351(a), we determine that proper service under rule =
21a must=20
occur to effectuate the intent of Chapter 74 as a whole, and =
section=20
74.351(a) specifically.
If a suit=20
is filed against an employee of a governmental unit based on =
conduct=20
within the general scope of that employee's employment and if it =
could=20
have been brought under this chapter against the governmental =
unit, the=20
suit is considered to be against the employee in the employee's =
official=20
capacity only. On the employee's motion, the suit against the =
employee=20
shall be dismissed unless the plaintiff files amended pleadings =
dismissing=20
the employee and naming the governmental unit as defendant on or =
before=20
the 30th day after the date the motion is filed. Tex. Civ.=20
Prac. & Rem. Code =A7 101.106(f) (Vernon 2005). Appellees cite =
no=20
authority, and we are aware of none, to support the assertion =
that,=20
because appellees are prohibited from suing both the employee and =
UTHSCH,=20
they could not be required to serve both. Appellees suggest that, =
because=20
UTHSCH is limited to vicarious liability for the actions of its =
employee,=20
there is only one "claim" and, therefore, only one act of service =
of the=20
expert report was required. We disagree. Chapter 74=20
defines "health care provider" as including both a "health care=20
institution" and an "employee" of such an institution acting in =
the course=20
and scope of his or her employment. Id. =A7 =
74.001(12)(A)(vii),=20
(B)(ii) (Vernon 2005). Under both chapter 74 and section 101.106, =
the=20
employee and the health-care provider are treated as separate =
defendants.=20
A party must name a new defendant, i.e., the governmental =
unit=20
(here, UTHSCH), if it seeks to continue its claim once the =
employee files=20
a motion to dismiss. If the employee and the governmental unit =
were the=20
same defendant, the requirement that a party name the governmental =
unit as=20
a defendant would be superfluous. UTHSCH and Dr. Vogt-Harenkamp =
are=20
separate parties, appellees' claims against each are separate, and =
appellees' service upon Dr. Vogt-Harenkamp thus did not satisfy =
service=20
upon UTHSCH. See id. at 617-18. A =
health-=20
care-liability claim is a theory of a health-care provider's =
liability.=20
Puls v. Columbia Hosp. at Med. City Dallas Subsidiary, =
L.P., 92=20
S.W.3d 613, 617 (Tex. App.--Dallas 2002, pet. denied). =
Tim=20
Taft
Panel=20
consists of Justices Taft, Hanks, and Higley.
1. But see Estate of Regis ex rel. =
McWashington v.=20
Harris County Hosp. Dist., 208 S.W.3d 64, 67 (Tex. =
App.--Houston=20
[14th Dist.] 2006, no pet.) (describing standard of =
review of=20
section 74.351(a) ruling as abuse of discretion, although appeal =
involved=20
issue of statutory interpretation); Mokkala v. Mead, 178 =
S.W.3d=20
66, 70 (Tex. App.--Houston [14th Dist.] 2005, pet. granted) =
(same).=20
Nonetheless, a trial court has no discretion in determining what =
the law=20
is, which law governs, or how to apply the law. See =
Walker v.=20
Packer, 827 S.W.2d 833, 840 (Tex. 1992). Accordingly, the =
standard of=20
review of this particular ruling is the same, regardless of =
whether it is=20
described as abuse of discretion or de novo. =
Intracare Hosp.=20
N. v. Campbell, 222 S.W.3d 790, 795 (Tex. App.--Houston [1st =
Dist.]=20
2007, no pet.).
O =
P I N I O=20
N
When the Legislature adopted Chapter 74, it made =
several=20
factual findings.