Appellants, Raymon Poland, =
individually=20
and as independent administrator of the estate of Jessie Poland, =
Robert=20
Martin, and Frank Martin ("the Poland parties"), appeal from a =
judgment=20
dismissing their health-care-liability and related claims against=20
appellees, Dr. Alina Grigore and Dr. Arthur S. Keats & =
Associates. We=20
determine whether the trial court erred in granting appellees' =
motion to=20
dismiss the claims against them for the Poland parties' failure =
timely to=20
serve an expert report on them. We affirm.
The factual recitations come =
mainly from=20
the Poland parties' petition. Appellant Raymon Poland was the =
husband of=20
Jessie Poland; the remaining appellants were his natural children. =
In=20
August 2003, Jessie Poland, under the care of Dr. James Willerson =
(an=20
appellee in a related appeal) and Dr. Ott (an appellee in another =
related=20
appeal), was hospitalized at St. Luke's Episcopal Hospital and the =
Texas=20
Heart Institute (both appellees in another related appeal) for an =
elective=20
surgical procedure to repair her heart's mitral valve. Appellee =
Dr. Alina=20
Grigore, who was employed by appellee Dr. Arthur S. Keats &=20
Associates, was the anesthesiologist for the surgical procedure. =
The=20
Poland parties alleged that, at the time of surgery, Jessie =
Poland's blood=20
contained a level of Coumadin that the health-care providers =
should have=20
known rendered her blood fully anti-coagulated and, thus, rendered =
surgery=20
dangerous. The surgery was nonetheless performed; Jessie Poland =
bled=20
internally; and she died several days later of multi-system organ=20
failure. In their original and first =
amended=20
petitions, both of which were filed on October 24, 2005, the =
Poland=20
parties sued, among other defendants, St. Luke's Episcopal =
Hospital, the=20
Texas Heart Institute, the University of Texas Health Science =
Center at=20
Houston, Dr. Arthur S. Keats & Associates, and Drs. Ott, =
Grigore, and=20
Willerson for Jessie Poland's wrongful death, for her pain and =
suffering=20
and medical costs before her death, and for her burial expenses. =
By the=20
time of the trial court's complained-of ruling, the Poland parties =
had=20
amended their petition two more times to allege the following =
causes of=20
action or theories of recovery against all defendants, including=20
appellees: (1) negligence, (2) gross negligence, (3) actual and=20
constructive fraud, (4) intentional infliction of emotional =
distress, (5)=20
assault and battery, (6) intentional and negligent abandonment, =
(7) breach=20
of fiduciary duties, (8) "negligent breach of fiduciary duties," =
(9)=20
malpractice, (10) "lack of proper informed consent," (11) =
"tampering with=20
official medical records," (12) "forgery," (13) violations of the =
Texas=20
Deceptive Trade Practices-Consumer Protection Act ("DTPA"), Appellees moved to dismiss, =
under Texas=20
Civil Practice and Remedies Code section 74.351(b), the Poland =
parties'=20
health-care-liability claims against them for failure to serve an =
expert=20
report upon them or their attorneys within 120 days of the filing =
of the=20
claims against them. Appellees' motion to dismiss =
alleged that=20
the Poland parties had served the report of their expert, Dr. =
Dennis=20
Moritz, The hearing on appellees' =
motion to=20
dismiss and their objections to the live petition occurred on July =
14,=20
2006. Other defendants' motions to dismiss, objections to the =
expert=20
report, and motions to strike the live petition were heard =
simultaneously.=20
No additional evidence was presented at the hearing. At the =
hearing, the=20
Poland parties did not deny that they had served Dr. Moritz's May =
2, 2005=20
expert report and curriculum vitae ("CV") on appellees' =
counsel=20
123 days after the filing of their first amended petition, the =
petition=20
that appellees alleged had triggered the 120-day-service deadline, =
but=20
instead argued that they had not alleged health-care-liability (or =
any)=20
claims against either appellee until their second amended =
petition, which=20
was filed and served along with On October 30, 2006, the trial =
court=20
rendered an interlocutory order that, among doing other things, =
dismissed=20
the claims against appellees with prejudice: On July 14, 2006 =
. . . CAME TO=20
BE HEARD all parties, by and through counsel, Dr. Aline Grigore =
and Arthur=20
S. Keats & Associates' [sic] Motion to Dismiss and Objections =
to=20
Plaintiff's [sic] Expert Report . . . . The Court, =
having=20
considered such Motions and Objections, having reviewed the file =
herein,=20
and heard the argument of counsel, makes the following FINDINGS OF =
FACTS=20
and ORDERS: 1. Plaintiffs . . . =
filed their=20
Original Petition on October 24, 2005. The 120-day deadline by =
which=20
Plaintiffs were required to serve their expert reports pursuant to =
Section=20
74.351 of the Tex. Civ. Prac. & Rem. Code was February 21, =
2006. The=20
earliest date that Plaintiffs served an expert report to any =
Defendant,=20
after the filing of their lawsuit, was on February 24, =
2006. . . . 6. With respect to Defendants =
Dr. Alina=20
Grigore and Arthur S. Keats & Associates Plaintiffs served Dr. =
Alina=20
Grigore and Arthur S. Keats & Associates with an unsigned =
expert=20
report from Dennis Moritz, M.D., on February 24, 2006. The =
deadline to=20
serve an expert report pursuant to =A7 74.351 of Tex. Civ. =
Prac. &=20
Rem. Code was February 21, 2006. The Court hereby finds that =
Plaintiff's=20
[sic] expert report was untimely served as to Dr. Alina Grigore =
and Arthur=20
S. Keats & Associates. The Court further finds that Arthur S. =
Keats=20
& Associates is a party to the suit under the theory of =
vicarious=20
liability and because all claims against Dr. Alina Grigore must be =
dismissed with prejudice due to a failure to provide an expert =
report, Dr.=20
Alina Grigore and Arthur S. Keats & Associates must also be =
dismissed.=20
Based on the foregoing, it is ORDERED that Defendants Dr. Alina =
Grigore=20
and Arthur S. Keats & Associates' Motion to Dismiss and =
Objections to=20
Plaintiff's [sic] Expert Report [be] GRANTED, and that Defendants =
Dr.=20
Alina Grigore and Arthur S. Keats & Associates [be and] are =
hereby=20
DISMISSED with prejudice. . . . 7. It is further ORDERED that =
pursuant to=20
Section 74.351 of the Tex. Civ. Prac. & Rem. Code that =
. . .=20
Defendants Dr. Alina Grigore and Arthur S. Keats & Associates =
[be]=20
awarded attorney's fees in the amount of $34,373.00 =
. . . .=20
The collection of these attorney's fees is stayed pending outcome =
of any=20
interlocutory appeal. This same order also (1) denied =
St.=20
Luke's Episcopal Hospital and the Texas Heart Institute's motion =
to=20
dismiss under Texas Civil Practice and Remedies Code section =
74.351 and=20
(2) granted Dr. Ott's motion to dismiss under section 74.351(b). =
Finally,=20
the trial court signed a separate interlocutory order that granted =
Dr.=20
Willerson's motion to dismiss based upon Texas Civil Practice and =
Remedies=20
Code section 101.106. See Tex. Civ. Prac. & Rem. Code =
Ann.=20
=A7 101.106 (Vernon 2005). The Poland parties appealed the =
adverse=20
rulings dismissing all of their claims against Drs. Ott, =
Willerson, and=20
Grigore and Arthur S. Keats & Associates, and St. Luke's =
Episcopal=20
Hospital and the Texas Heart Institute appealed the denial of =
their motion=20
to dismiss--all under the same appellate cause number. Although =
the=20
interlocutory order appealed by St. Luke's Episcopal Hospital and =
the=20
Texas Heart Institute was permitted by statute, this was not true =
of every=20
appealed order. See Tex. Civ. Prac. & Rem. Code Ann.=20
=A7 51.014(a) (Vernon 1997 & Supp. 2007). On December 18, =
2006,=20
this Court, upon the parties' motion, abated the appeal and =
remanded the=20
cause for the trial court--upon various parties' motions, filed in =
the=20
trial court after appeal, to sever the interlocutory orders =
rendered in=20
favor of Dr. Ott, of Dr. Willerson, and of Dr. Grigore and Dr. =
Arthur S.=20
Keats & Associates--to render final and appealable those =
interlocutory=20
rulings that had not been appealable on an interlocutory basis. =
Upon=20
remand, the trial court severed the rulings against the specified=20
defendants from the underlying cause, rendering a final judgment =
in the=20
newly severed cause numbers involving Dr. Ott, Dr. Willerson, and =
Dr.=20
Grigore and Dr. Arthur S. Keats & Associates. On March 15, =
2007, this=20
Court reinstated the appeal, assigning different appellate cause =
numbers=20
to the appeal of what had by then become four separate rulings in =
four=20
separate trial-court cause numbers. This opinion and judgment =
concern the=20
Poland parties' appeal of the dismissal order rendered in favor of =
Dr.=20
Grigore and Dr. Arthur S. Keats & Associates.
In their first issue, the =
Poland parties=20
argue that the trial court erred in granting appellees' dismissal =
motion=20
and dismissing their claims against Dr. Grigore with prejudice =
because=20
they first asserted claims against Dr. Grigore in an amended =
petition that=20
was filed fewer than 120 days before they served their expert =
report on=20
her (and Dr. Arthur S. Keats & Associates's) attorney. In =
their second=20
issue, the Poland parties assert that the trial court erred in =
dismissing=20
their claims against Dr. Arthur S. Keats & Associates because =
Dr.=20
Arthur S. Keats & Associates waived any objections to the =
Poland=20
parties' expert report, including its timeliness, by not having =
objected=20
within 21 days of the report's (belated) service. Finally, the =
Poland=20
parties assert that the trial court erred, for various reasons, in =
awarding Dr. Grigore and Dr. Arthur S. Keats & Associates $34, =
373 in=20
attorney's fees. "We generally review rulings on =
a motion=20
to dismiss under section 74.351(b) for abuse of discretion." =
Univ. of=20
Tex. Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d =
869, 871=20
& 871 n.1 (Tex. App.--Houston [1st Dist.] 2007, pet. filed);=20
accord Intracare Hosp. N. v. Campbell, 222 S.W.3d 790, =
794 (Tex.=20
App.--Houston [1st Dist.] 2007, no pet.). A. Dismissal of Claims =
Against=20
Dr. Grigore The version of section =
74.351(a) that=20
applies to this case provides as follows concerning service of the =
expert=20
report and CV: =A7 74.351. Expert=20
Report (a) In a health care liability =
claim, a=20
claimant shall, not later than the 120th day after the date the =
claim was=20
filed, serve on each party or the party's attorney one or more =
expert=20
reports, with a curriculum vitae of each expert listed in the =
report for=20
each physician or health care provider against whom a liability =
claim is=20
asserted. The date for serving the report may be extended by =
written=20
agreement of the affected parties. Each defendant physician or =
health care=20
provider whose conduct is implicated in a report must file and =
serve any=20
objection to the sufficiency of the report not later than the 21st =
day=20
after the date it was served, failing which all objections are=20
waived. See Act of June 2, =
2003, 78th=20
Leg., R.S., ch. 204, =A7 10.01, 2003 Tex. Gen. Laws 847, 875, =
amended by=20
Act of May 18, 2005, 79th Leg., R.S., ch. 635, =A7 1, 2005 =
Tex. Gen.=20
Laws 1590, 1590. The statute continues: (b) If, as to a defendant =
physician or=20
health care provider, an expert report has not been served within =
the=20
period specified by Subsection (a), the court, on the motion of =
the=20
affected physician or health care provider, shall, subject to =
Subsection=20
(c), enter an order that: (1) awards to the affected =
physician or=20
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=20
the physician or health care provider, with prejudice to the =
refiling of=20
the claim.
Tex. Civ. Prac. & Rem. Code =
Ann. =A7=20
74.351(b). In their first issue, the =
Poland parties=20
do not dispute that they did not serve Dr. Grigore's counsel with =
their=20
expert's report within 120 days of their first amended petition's =
filing.=20
Rather, they argue that the first amended petition did not allege=20
health-care-liability (or any) claims against Dr. Grigore (or =
against Dr.=20
Arthur S. Keats & Associates) and that they "for the first =
time"=20
alleged that Dr. Grigore "was directly and vicariously [sic] =
liable=20
. . . for the surgery that lead [sic] to Jessie Poland's =
death"=20
in their second amended petition, which was filed on May 19, 2006, =
fewer=20
than 120 days before they served their expert report on appellees' =
counsel. The appellate record =
undisputedly refutes=20
the Poland parties' factual representations and argument. The =
first=20
amended petition, filed on October 24, 2005, alleged in pertinent =
part as=20
follows: COME NOW Plaintiffs =
. . .,=20
complaining of [various defendants and] . . . Dr. =
Alina=20
Grigore, Arthur S. Keats, M.D., Associates [sic], . . ., =
who=20
for cause of action, would respectfully show the=20
following:
This suit is brought under and =
by virtue=20
of the law of the State of Texas to recover those damages that =
Plaintiffs=20
are justly entitled to receive as compensation for the wrongful =
death of=20
Jessie Poland which was brought about directly and proximately =
by=20
reason of the negligence of the Defendants herein, as set out =
more=20
fully hereinafter. . . .
Plaintiffs would show that =
Jessie Poland=20
was under the care of Drs. James Willerson and David Ott, who =
hospitalized=20
Jessie Poland in order to perform an elective medical procedure in =
August,=20
2003. While Mrs. Poland had been taking Coumadin prior to her =
admission,=20
the Defendants herein were well aware of that fact and =
indeed,=20
had her check into the hospital sometime before the surgery was to =
take=20
place to monitor her chemical blood levels, knowing that it was =
dangerous=20
and risky to perform surgery on an individual who was prescribed =
this=20
particular drug. Nonetheless, despite Defendants' actual=20
knowledge of Mrs. Poland's anticoagulation levels as they existed =
on the=20
morning of the surgery, Drs. Willerson, and Ott, together with =
anesthesiologist Dr. Alina Grigore, who was acting in the course =
and scope=20
of her employment, for Dr. Arthur Keats, M.D., Associates =
[sic],=20
proceeded to operate. Mrs. Poland's anticoagulation levels, =
resulting from=20
the prescribed Coumadin, were well known to these =
Defendants, as=20
well as to [various other defendants]. . . . All of =
the=20
Defendants should have prevented the surgical procedure from =
going=20
forward with Mrs. Poland's Coumadin and anticoagulation levels =
being what=20
they were and the Defendants were negligent in proceeding with =
the=20
surgery under these facts and circumstances. As a result of performing =
surgery=20
on Mrs. Poland at the time of her elevated Coumadin levels, =
she=20
suffered a regrettably predictable series of medical complications =
that=20
ultimately led to her death on August 20, 2003. The negligence =
of the=20
Defendants in performing the procedure constituted a =
proximate cause=20
of the wrongful death of Jessie Poland.
. . . WHEREFORE, PREMISES CONSIDERED, =
Plaintiffs pray that the Defendants be duly cited to =
appear and=20
answer herein, and that Plaintiffs have judgment against=20
Defendants, jointly and severally . . . =
. (Emphasis added.) Former section 74.351(a) =
requires that=20
the report and CV be served not later than the 120th day after the =
date=20
that "the claim [is] filed." See Act of June 2, =
2003,=20
78th Leg., R.S., ch. 204, =A7 10.01, 2003 Tex. Gen. Laws 847, 875 =
(emphasis=20
added), amended by Act of May 18, 2005, 79th Leg., R.S., =
ch. 635,=20
=A7 1, 2005 Tex. Gen. Laws 1590, 1590. In section 74.351, "claim" =
means=20
"health care liability claim." Tex. Civ. Prac. & Rem. Code =
Ann.=20
=A7 74.351(r)(2) (Vernon Supp. 2007). "Health care liability =
claim," in=20
turn, is defined in chapter 74 as "a cause of action against a=20
. . . physician for the treatment, lack of treatment, or =
other=20
claimed departure from accepted standards of medical care =
. . .=20
which proximately results in injury to or death of a claimant, =
whether the=20
claimant's claim or cause of action sounds in tort or contract." =
Tex. Civ.=20
Prac. & Rem. Code Ann. =A7 74.001(a)(13) (Vernon =
2005). The allegations in the first =
amended=20
petition quoted above meet this definition because they allege a =
cause of=20
action (negligence) against appellees (and all defendants) for the =
treatment of Jessie Poland, as well as their departure from the =
accepted=20
standards of medical care in that treatment, which proximately =
resulted in=20
Jessie Poland's death. The 120-day deadline to serve the expert =
report and=20
CV on appellees was thus triggered by the filing of the first =
amended=20
petition that contained the above allegations. See Act of =
June 2,=20
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 1,=20
2005 Tex. Gen. Laws 1590, 1590; Poland v. Ott, No.=20
01-07-00199-CV, slip op. at 12 (Tex. App.--Houston [1st Dist.] =
Jan. 31,=20
2008, no pet. h.) (holding that filing of health-care-liability =
claim=20
against particular defendant triggers start of 120-day period in =
which to=20
serve former section 74.351(a) expert report and CV on that =
defendant,=20
regardless of whether report and CV were provided to defendant =
before=20
filing date). That petition was filed more than 120 days before =
the Poland=20
parties served the report and CV on either appellee. Accordingly, =
the=20
trial court did not abuse its discretion in dismissing with =
prejudice the=20
claims against Dr. Grigore; indeed, the statute required =
that the=20
court do so. See Tex. Civ. Prac. & Rem. Code Ann. =A7 =
74.351(b). The Poland parties nonetheless =
urge that=20
they did not allege a health-care-liability claim against Dr. =
Grigore=20
until their second amended petition because that later petition =
contained,=20
allegedly for the first time, "specific causes of action against =
[Dr.=20
Grigore], for direct and vicarious liability pre-operation." The =
gist of=20
the Poland parties' assertion appears to be that no =
health-care-liability=20
claim was asserted against Dr. Grigore (or either appellee) until =
more=20
specific factual allegations were asserted in the second amended =
petition.=20
We disagree. First, as =
demonstrated=20
above, the first amended petition clearly alleged a =
health-care-liability=20
claim against Dr. Grigore (and both appellees). This was all that =
was=20
required for the 120-day expert-report deadline to start running =
because=20
the statute requires simply that each physician "against whom a=20
[health-care-]liability claim is asserted" be served no later than =
120=20
days after "the [health-care-liability] claim" is filed. See =
Act=20
of June 2, 2003, 78th Leg., R.S., ch. 204, =A7 10.01, 2003 Tex. =
Gen. Laws=20
847, 875, amended by Act of May 18, 2005, 79th Leg., =
R.S., ch.=20
635, =A7 1, 2005 Tex. Gen. Laws 1590, 1590. The statute does not =
tie the=20
obligation to serve the report and CV to the specificity of the=20
allegations supporting the health-care-liability claim against a =
physician=20
or health-care provider; that is, if the claim asserted against =
such a=20
defendant fits the definition of a health-care liability claim, =
then the=20
expert-report service obligation is triggered. Moreover, it is =
commonplace=20
to amend a petition's allegations against a particular defendant =
to render=20
them more specific as more facts become known about the =
complained-of=20
occurrence. "[T]he purposes behind former section 74.351(a)'s =
adoption=20
were, among other things, to remove unwarranted delay and expense, =
to=20
accelerate the disposition of non-meritorious cases, and to =
give=20
hard-and-fast deadlines for the serving of expert reports."=20
Campbell, 222 S.W.3d at 797. The goal of creating =
hard-and-fast=20
deadlines for service of expert reports would be completely =
undermined if=20
parties had to guess how detailed the allegations in support of a=20
health-care-liability claim had to be before the service =
requirement was=20
triggered. Neither the plain language of former section 74.351(a), =
nor the=20
legislative purpose behind it, supports such a reading. =
See=20
Gutierrez, 237 S.W.3d at 873 (providing, in construing =
former=20
section 74.351(a), that "[s]tatutes must be construed as written, =
and=20
legislative intent determined, if possible, from their express =
terms" and=20
that "[e]ven if a statute is unambiguous, courts may consider the=20
statute's objective; circumstances of its enactment; its =
legislative=20
history; . . . [and] consequences of a particular =
construction=20
. . . ."). We hold that the trial court =
did not=20
abuse its discretion in dismissing the Poland parties' claims =
against Dr.=20
Grigore. We thus overrule the Poland parties' first issue. B. Dismissal of Claims =
Against=20
Dr. Arthur S. Keats & Associates The reasons set out above also=20
demonstrate that the trial court did not abuse its discretion is=20
dismissing with prejudice the claims against Dr. Arthur S. Keats =
&=20
Associates. However, in their second issue, the Poland parties =
nonetheless=20
argue that the trial court abused its discretion in dismissing =
their=20
claims against Dr. Arthur S. Keats & Associates because this =
appellee=20
waived any objection to the expert report and CV by not having =
objected=20
within 21 days of having been served with them. Former section 74.351(a) =
establishes the=20
following procedure after an expert report and CV have been=20
served: Each defendant physician or =
health care=20
provider whose conduct is implicated in a report must file and =
serve any=20
objection to the sufficiency of the report not later than =
the=20
21st day after the date it was served, failing which all =
objections are=20
waived. See Act of June 2, =
2003, 78th=20
Leg., R.S., ch. 204, =A7 10.01, 2003 Tex. Gen. Laws 847, 875 =
(emphasis=20
added), amended by Act of May 18, 2005, 79th Leg., R.S., =
ch. 635,=20
=A7 1, 2005 Tex. Gen. Laws 1590, 1590. The plain language of =
former=20
section 74.351(a) provides that a defendant whose conduct is =
implicated in=20
an expert report need object only to the report's sufficiency=20
within the 21-day period. The term "sufficiency" as used =
in former=20
section 74.351(a)'s 21-day-objection deadline does not mean =
timeliness, as=20
can be seen from other parts of section 74.351. For example, =
section=20
74.351(c) permits the trial court to allow the claimant a one-time =
extension to cure the objected-to deficiency in the expert report. =
See=20
Tex. Civ. Prac. & Rem. Code Ann. =A7 74.351(c) =
(Vernon Supp.=20
2007) ("If an expert report has not been served within the period=20
specified by Subsection (a) because elements of the report are =
found=20
deficient, the court may grant one 30-day extension to the =
claimant=20
in order to cure the deficiency.") (emphasis added). Section =
74.351(c)=20
necessarily establishes the procedure for challenges other than =
those=20
based on belated service--for instance, objections to deficiencies =
in the=20
report's content--because once a report is late, it remains late: =
no=20
"cure" exists to render an untimely report timely. See Herrera =
v.=20
Seton Northwest Hosp., 212 S.W.3d 452, 460 (Tex. App.--Austin =
2006,=20
no pet.) ("[S]ection 74.351(c) . . . permits =
[30-day]=20
extensions for expert reports that the court finds deficient in =
substance,=20
not for reports that are filed untimely."); Thoyakulathu v.=20
Brennan, 192 S.W.3d 849, 853 (Tex. App.--Texarkana 2006, no =
pet.)=20
("Section 74.351(c) applies only when 'an expert report has not =
been=20
served within' the 120-day period 'because elements of the =
report have=20
been found deficient.'" This clearly requires a timely-served =
report=20
that is deficient.") (emphasis in original; citation omitted; =
quoting Tex.=20
Civ. Prac. & Rem. Code Ann. =A7 74.351(c)). Likewise, section 74.351(l) =
provides that=20
the trial court "shall grant a motion challenging the adequacy =
of=20
an expert report only if it appears to the court, after hearing, =
that the=20
report does not represent an objective good faith effort to comply =
with=20
the definition of an expert report in Subsection (r)(6)." Tex. =
Civ. Prac.=20
& Rem. Code Ann. =A7 74.351(l) (Vernon Supp. 2007) =
(emphasis=20
added). "[A] motion challenging the adequacy of an expert =
report"=20
(section 74.351(l)) is the equivalent of an "objection to the =
sufficiency=20
of the report" (section 74.351(a)). See, =
e.g.,=20
Random House Webster's Unabridged Dict. at 24 (2nd ed. 2001)=20
(providing that "adequate" and "sufficient" are synonyms). =
Therefore,=20
section 74.351(l)'s procedure applies to former section =
74.351(a)'s=20
objection. That procedure refers to section 74.351(r)(6), which, =
in turn,=20
defines an expert report in terms of its content. See =
Tex. Civ.=20
Prac. & Rem. Code Ann. =A7 74.351(5)(6) (Vernon Supp. =
2007).=20
Accordingly, the "objection to the sufficiency of the report" =
in=20
former section 74.351(a) means an objection to the report's =
substance, not=20
to the timeliness of its service. Former section 74.351(a)'s =
21-day=20
deadline thus does not apply to an objection to an expert report =
based on=20
belated service. In contrast, section =
74.351(b)--which=20
establishes the consequences for failure timely to serve an expert =
report--contains no deadline by which a defendant physician or =
health-care=20
provider may complain. See id. =A7 74.351(b). Dr. =
Arthur S.=20
Keats & Associates's complaint was that it was not timely =
served any=20
report at all, not that a timely served report was deficient. This =
kind of=20
complaint is not subject to the 21-day-objection deadline of =
former=20
section 74.351(a). We hold=20
that the trial court did not abuse its discretion in dismissing =
the Poland=20
parties' claims against Dr. Arthur S. Keats & Associates. We =
thus=20
overrule this portion of the Poland parties' second issue.
Under their=20
second issue, the Poland parties argue that the trial court erred =
in=20
awarding $34,373 in attorney's fees to appellees =
because [t]here has=20
been no hearing on attorney [sic] fees. [The Poland parties] were =
denied=20
the opportunity to cross-examine [appellees] on attorney fee =
[sic]. The=20
attorney fees for both Dr. Alina Grigore and Dr. Arthur S. Keats =
&=20
Associates are one combined figure, not detailing any particular =
amount=20
for either. Appellees have failed to meet the standard as set =
forth=20
above,[ Counsel for=20
appellees: I would also--I failed to file the affidavit for costs. =
If I=20
may file that with the Court. . . . On August=20
16, 2006, while their June 29 joint motion was pending and more =
than a=20
month before the court would rule on it, appellees filed another =
joint=20
motion that raised the same arguments and requested the same =
relief as the=20
as the June 29 joint motion had. The August 16 joint motion again=20
requested $34,373 in attorney's fees for Dr. Grigore and Dr. =
Arthur S.=20
Keats & Associates together, but this time attached the =
affidavit of=20
their trial counsel, Dale Burrus Frisby, in support: Attorney=20
[sic] fees incurred by Kroger, Myers, Frisby & Hirsch during =
the=20
course of responding to Plaintiff's [sic] Petition . . . =
are=20
. . . on behalf of Dr. Alina Grigore and Arthur S. Keats =
&=20
Associates [sic], the amount of $34,373.00. That=20
affidavit was dated July 14, 2006, the same date as the hearing on =
appellees' June 29 joint motion to dismiss; it is unclear whether =
this=20
affidavit was a copy of the affidavit for "costs" to which =
appellees'=20
counsel referred and that he tendered at the July 14 hearing. The =
trial=20
court signed the order granting appellees' motion to dismiss, =
which also=20
awarded appellees their attorney's fees, on October 30, =
2006. First, the=20
Poland parties have provided absolutely no briefing or argument to =
support=20
the following appellate challenges concerning attorney's fees: =
"[t]here=20
has been no hearing on attorney [sic] fees. [The Poland parties] =
were=20
denied the opportunity to cross-examine [appellees] on attorney =
[sic] fee.=20
The attorney fees for both Dr. Alina Grigore and Dr. Arthur S. =
Keats &=20
Associates [sic] are one combined figure, not detailing any =
particular=20
amount for either." We decline to consider these challenges =
because they=20
are inadequately briefed. See Tex. R. App. P. 38.1(h);=20
Stephens v. Dolcefino, 126 S.W.3d 120, 130 (Tex. =
App.--Houston=20
[1st Dist.] 2003), pet. denied, 181 S.W.3d 741 (Tex.=20
2005). We overrule=20
this portion of the Poland parties' second issue.
We affirm=20
the judgment of the trial court. We deny=20
appellees' request for sanctions on appeal. Tim=20
Taft Panel=20
consists of Justices Taft, Keyes, and Alcala.=20
1. See Tex. Bus. & Com. Code =
Ann. =A7=A7=20
17.41-.63 (Vernon 2002 & Supp. 2007).=20
2. Before Dr. Arthur S. Keats & =
Associates had=20
answered or appeared in the suit, Dr. Grigore had separately twice =
moved=20
to dismiss the claims against her for untimely service of an =
expert=20
report. She and Dr. Arthur S. Keats & Associates then filed a =
joint=20
motion to dismiss the claims against them on June 29, 2005, which =
predated=20
the dismissal hearing. After the dismissal hearing, but before the =
trial=20
court had ruled on their June 29 joint dismissal motion, appellees =
filed=20
another joint dismissal motion on the same grounds. For =
simplicity's sake,=20
unless it is otherwise necessary to distinguish between appellees' =
pre-hearing and post-hearing dismissal motions, we refer simply to =
appellees' "motion" to dismiss.=20
3. This first unsigned report of Dr. Moritz =
was dated=20
May 2, 2005.=20
4. The Poland parties also served a report =
of a nurse,=20
Rachel Cartwright, on at least some of the defendants in their =
lawsuit in=20
May 2006. The trial court struck the May 2006 expert report of =
Cartwright=20
for its having been untimely served. The Poland parties do not =
complain in=20
this appeal of the striking of Cartwright's report.=20
5. The trial court dismissed all of the =
Poland=20
parties' claims against Dr. Grigore and Dr. Arthur S. Keats &=20
Associates, even those couched as something other than=20
health-care-liability claims. However, the Poland parties do not =
complain=20
on appeal of the dismissal of these additional claims. We thus do =
not=20
consider whether the trial court properly dismissed the claims =
couched as=20
anything other than health-care-liability claims.=20
6. We distinguish Puls v. Columbia =
Hospital at=20
Medical City Dallas Subsidiary, L.P., on which the Poland =
parties=20
rely. See 92 S.W.3d 613 (Tex. App.--Dallas 2002, pet. =
denied). In=20
Puls, the plaintiff filed a claim based on a =
perfusionist's=20
negligence, for which it alleged that the hospital-employer was=20
vicariously liable, in its original petition; in an amended =
petition, the=20
plaintiff added claims based on nurses' negligence, for which it =
also=20
alleged that the hospital-employer was vicariously liable. See =
id. at 615. The expert report concerning the nurses' =
negligence was=20
served within 180 days of the amended petition's filing (the =
deadline at=20
that time), but more than 180 days from the original petition's =
filing.=20
See id. The perfusionist was nonsuited. See id. =
The=20
Puls court rejected the hospital's contention that the =
expert=20
report concerning the nurses' actions was untimely because it had =
been=20
served more than 180 days from the filing of the original =
petition, in=20
which the hospital had first been made a party through vicarious =
liability=20
for another employee's actions: the claim against it for vicarious =
liability based on different employees' actions was a new "claim." =
See=20
id. at 617-18. Here, in contrast, the Poland parties =
actually=20
alleged health-care-liability claims against each appellee in =
their=20
first amended petition, simply embellishing those claims in later=20
amendments.=20
7. See Ogletree v. Matthews, No. =
06-0502,=20
2007 WL 4216606, at *4-5 (Tex. Nov. 30, 2007) (appearing =
implicitly to=20
accept petitioner's position that total failure to serve expert =
report=20
would not require defendant's objection within 21-day window, =
although=20
rejecting petitioner's complaint that insufficient report was, in =
effect,=20
no report at all and thus holding that petitioner had waived =
objections=20
thereto); Francis v. Select Specialty Hosp., No. =
01-04-01186-CV,=20
2005 WL 2989489, at *3 (Tex. App.--Houston [1st Dist.] Nov. 3, =
2005, no=20
pet.) (memo. op.) ("[B]ecause there is no evidence in the record =
that=20
Sharon filed her expert report with the trial court or otherwise =
provided=20
Select Specialty with an expert report, the 21-day deadline by =
which a=20
health care provider must file and serve its objections to the =
sufficiency=20
of such a report was not triggered."); Smith v. Hamilton, =
No.=20
09-07-128-CV, 2007 WL 1793754, at *4 (Tex. App.--Beaumont June 21, =
2007,=20
no pet.) (memo. op.) ("[A] health care defendant's 21-day deadline =
explicitly refers to an 'objection to the sufficiency' of an =
expert=20
report, not to the fact that an expert report was not served =
within the=20
mandatory 120-day deadline.") (memo. op.); see also =
Empowerment=20
Options, Inc. v. Easley, No. 09-06-148-CV, 2006 WL 3239527, =
at *4=20
(Tex. App.--Beaumont Nov. 9, 2006, pet. denied) (memo. op.) =
(noting in=20
dictum that "[c]hapter 74 imposes no deadline for filing a motion =
to=20
dismiss" for failure timely to serve an expert report); =
Packard v.=20
Miller, No. 07-06-0454-CV, 2007 WL 1662279, at *2 (Tex.=20
App.--Amarillo, May 31, 2007, pet. denied) (memo. op.) (holding =
that=20
defendant who waited almost 18 months to move to dismiss=20
health-care-liability claim asserted against him for failure =
timely to=20
serve expert report was not equitably estopped from seeking =
dismissal=20
because "[t]he Legislature did not include an explicit deadline =
for the=20
filing of a motion to dismiss" under section 74.351); cf. Pena =
v.=20
Methodist Healthcare Sys. of San Antonio, Ltd., 220 S.W.3d =
52, 53-54=20
(Tex. App.--San Antonio 2006, no pet.) (holding that section =
74.351(a)'s=20
21-day objection deadline did not apply to timely served expert =
report=20
that was unaccompanied by CV because failure timely to serve CV =
rendered=20
service of entire report untimely).=20
8. Given our disposition, we need not =
determine if the=20
trial court properly dismissed the Poland parties' claims against =
Dr.=20
Arthur S. Keats & Associates because the claims against it =
were based=20
on respondeat superior for Dr. Grigore's actions and Dr. Grigore =
was=20
properly dismissed for failure timely to serve an expert report.=20
9. The Poland parties rely on Texas =
Disciplinary Rule=20
of Professional Conduct 1.04(b), which establishes factors that =
may be=20
considered in determining a fee's reasonableness, and on the =
opinion of=20
the El Paso Court of Appeals in Marquez v. Providence Memorial =
Hospital, in which the court adopted the factors of rule =
1.04.=20
See Tex. Disciplinary R. Prof'l Conduct 1.04(b), =
reprinted=20
in Tex. Gov't Code Ann., tit. 2, subtit. G, app. A (Vernon =
2005)=20
(State Bar R., art. X, =A7 9); Marquez v. Providence =
Mem'l=20
Hosp., 57 S.W.3d 585, 596 (Tex. App.--El Paso 2001, pet.=20
denied).