Opinion issued January 31,=20
2008
In The
Court of=20
Appeals
For The
First =
District of=20
Texas
____________
NO.=20
01-07-00199-CV
____________
RAYMON POLAND, INDIVIDUALLY AND AS =
INDEPENDENT=20
ADMINISTRATOR OF THE ESTATE OF JESSIE POLAND, ROBERT MARTIN, and =
FRANK=20
MARTIN, Appellants
V.
DAVID OTT, =
Appellee
On Appeal from 152nd District=20
Court
Harris County, =
Texas
Trial Court Cause No.=20
2006-38894(c)
O P I N I O NAppellants, Raymon Poland, individually =
and as=20
independent administrator of the estate of Jessie Poland, Robert =
Martin,=20
and Frank Martin (=E2=80=9Cthe Poland parties=E2=80=9D), appeal =
from a judgment dismissing their =
health-care-liability=20
and related claims against appellee, Dr. David Ott. We determine =
whether=20
the trial court erred in granting Dr. Ott=E2=80=99s motion to =
dismiss the claims=20
against him for the Poland parties=E2=80=99 failure properly and =
timely to serve=20
an expert report on Dr. Ott. We=20
affirm.
Background
<=
/SPAN>The=20
factual recitations come from the Poland parties=E2=80=99 =
petitions. Appellant=20
Raymon Poland was the husband of Jessie Poland; the remaining =
appellants=20
were his natural children. In August 2003, Jessie Poland, under =
the care=20
of Dr. James Willerson (an appellee in a related appeal) and Dr. =
Ott, was=20
hospitalized at St. Luke=E2=80=99s Episcopal Hospital and the =
Texas Heart=20
Institute (both appellees in another related appeal) for an =
elective=20
surgical procedure to repair her heart=E2=80=99s mitral valve. Dr. =
Alina Grigore,=20
who was employed by Dr. Arthur S. Keats & Associates (both of =
whom are=20
appellees in another related appeal), was the anesthesiologist for =
the=20
surgical procedure. The Poland parties alleged that, at the time =
of=20
surgery, Jessie Poland=E2=80=99s blood contained a level of =
Coumadin that the=20
health-care providers should have known rendered her blood fully=20
anti-coagulated and, thus, rendered surgery dangerous. The surgery =
was=20
nonetheless performed; Jessie Poland bled internally; and she died =
several=20
days later of multi-system organ failure.
<=
/SPAN>The=20
Poland parties sued, among other defendants, St. Luke=E2=80=99s =
Episcopal=20
Hospital, the Texas Heart Institute, the University of Texas =
Health=20
Science Center at Houston, Arthur S. Keats & Associates, and =
Drs. Ott,=20
Grigore, and Willerson on October 24, 2005 for Jessie =
Poland=E2=80=99s wrongful=20
death, for her pain and suffering and medical costs before her =
death, and=20
for her burial expenses. By the time of the trial court=E2=80=99s =
complained-of=20
ruling, the Poland parties had amended their petition to allege =
the=20
following causes of action or theories of recovery against all =
defendants,=20
including Dr. Ott: (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) =E2=80=9Cnegligent breach of fiduciary =
duties,=E2=80=9D (9)=20
malpractice, (10) =E2=80=9Clack of proper informed =
consent,=E2=80=9D (11) =E2=80=9Ctampering with=20
official medical records,=E2=80=9D (12) =E2=80=9Cforgery,=E2=80=9D =
(13) violations of the Texas=20
Deceptive Trade Practices=E2=80=93Consumer Protection Act =
(=E2=80=9CDTPA=E2=80=9D),=20
![3DFootnote](3D"")
and (14) conspiracy among all =
defendants. This=20
=E2=80=9Clive=E2=80=9D petition also added allegations that the =
defendants had altered=20
Jessie Poland=E2=80=99s medical records and forged Raymon =
Poland=E2=80=99s signature on=20
unspecified hospital documents. They sought actual and exemplary=20
damages.
<=
/SPAN>On=20
June 20, 2006, Dr. Ott moved, under Texas Civil Practice and =
Remedies Code=20
section 74.351(b), to =
dismiss the=20
Poland parties=E2=80=99 health-care-liability claims against him =
for failure to=20
serve an expert report upon him or his attorney within 120 days of =
the=20
filing of those claims.
See Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 74.351(b) (Vernon Supp. 2007) (providing =
that trial=20
court must dismiss health-care-liability claim against defendant =
if=20
claimant fails to serve expert=E2=80=99s report and curriculum =
vitae on=20
that defendant within period specified by section =
74.351(a)); Act of June 2, 2003, 78th Leg., R.S., =
ch. 204,=20
=C2=A7 10.01, 2003 Tex. Gen. Laws 847, 875 (providing that =
claimant must=20
serve each defendant against whom health-care-liability claim is =
asserted=20
with expert=E2=80=99s report and curriculum vitae =
not later than 120 days of =
claim=E2=80=99s filing)=20
[hereinafter, =E2=80=9Cformer section =
74.351(a)=E2=80=9D], amended by Act of May 18, 2005, =
79th=20
Leg., R.S., ch. 635, =C2=A7 1, 2005 Tex. Gen. Laws 1590, 1590 =
(current=20
version at Tex. Civ. =
Prac. &=20
Rem. Code Ann. =C2=A7 74.351(a) (Vernon Supp. 2007)). =
The motion=20
alleged that the Poland parties had served the report of their =
expert, Dr.=20
Dennis Moritz, on Dr. Ott=E2=80=99s attorney 123 days after their=20
health-care-liability claims had been filed against =
him.
<=
/SPAN>The=20
Poland parties did not deny that they had served Dr. =
Moritz=E2=80=99s May 2, 2005=20
report on Dr. Ott=E2=80=99s counsel 123 days after their claims =
had been filed=20
against Dr. Ott, but in their response, they alleged that they had =
=E2=80=9Cserved=E2=80=9D that same report on Gary=20
McLeod, a representative of Dr. Ott=E2=80=99s professional =
liability carrier (APMC=20
Insurance Services), whom they described in their response as Dr. =
Ott=E2=80=99s=20
=E2=80=9Cdesignated representative=E2=80=9D for receipt of the =
report, on July 29,=20
2005=E2=80=94nearly three months before suit was =
filed.
The Poland parties produced evidence =
that they=20
alleged supported their response=E2=80=99s allegation. For =
example, they attached=20
a letter, dated July 13, 2005, from McLeod to the Poland =
parties=E2=80=99=20
attorneys, which in pertinent part read:
Your letter of June 30, 2005 to David =
Alan Ott,=20
M.D. has been referred to us for response, as we are his =
professional=20
liability carrier. We will be investigating this case on behalf of =
Dr.=20
Ott.
. . .
I also request that you provide me with =
your=20
medical expert=E2=80=99s specific criticisms of our =
member=E2=80=99s care so that we might=20
share those concerns with David Alan Ott, =
M.D.
They also attached their =
attorney=E2=80=99s July 29,=20
2005 response to =
McLeod=E2=80=99s=20
letter:
Additionally, you will find enclosed the =
information that you requested regarding the opinion of our expert =
witness.
. . .
I will also fax you some additional =
information=20
shortly.
Attached to the Poland parties=E2=80=99 =
attorney=E2=80=99s July 29=20
letter was the unsigned expert report of Dr. Moritz and his =
curriculum=20
vitae (=E2=80=9CCV=E2=80=9D). Finally, the Poland=20
parties attached the affidavit of their counsel, who averred in =
pertinent=20
part as follows:
I received notice from APMC Insurance =
Services=20
on behalf of Dr. Ott. They [sic] requested the =E2=80=9Cmedical =
expert=E2=80=99s specific=20
criticisms of our member=E2=80=99s care so that we might share =
those concerns with=20
David Alan Ott, M.D.=E2=80=9D . . . . I then =
replied=20
. . . by sending Mr. Gary McLeod the Expert Report with =
Resume.=20
I discussed wanting to look at possible settlement of this =
claim=20
. . . . Mr. McLeod stated that he would have to =
send for=20
the medical records from the hospital, to which I returned to him =
the=20
medical authorization he had previously sent me, along with a =
copy of=20
the Expert Report with Resume. . . . The =
Defendants have=20
had the Expert report with Resume since May=20
2005.
(Emphasis added.)
<=
/SPAN>The=20
hearing on Dr. Ott=E2=80=99s motion to dismiss and his motion to =
strike the live=20
petition occurred on July 14, 2006. Other defendants=E2=80=99 =
motions to dismiss,=20
objections to the expert report, and objections to the live =
petition were=20
heard simultaneously. No additional evidence was presented at the =
hearing,=20
but the following discussion between the trial court and Dr. =
Ott=E2=80=99s=20
attorney transpired:
Court:Who got the [expert] report =
beforehand=20
[before suit=E2=80=99s filing]?
. . .
Dr. Ott=E2=80=99s attorney:Dr. Ott =
received it through=E2=80=94he=20
was served with it through his carrier pre suit notification. We, =
as the=20
attorneys did not=E2=80=94we did not have communications with the =
plaintiffs=20
before the lawsuit was filed.
. . .
Court:. . . Heart Institute and St. =
Luke=E2=80=99s=20
gets [sic] pre suit report, [Dr.] Grigore gets no report before or =
after.=20
. . . Willerson, gets=E2=80=94is not a part of this =
lawsuit. [Dr.] Ott=20
gets report pre suit, directly from his insurance carrier. =
Attorneys=20
never=E2=80=94
Dr. Ott=E2=80=99s attorney:The insurance carrier, yes. The =
insurance carrier=20
gets them.
<=
/SPAN>On=20
October 30, 2006, the trial court rendered an interlocutory order =
that,=20
among doing other things, dismissed the claims against Dr. Ott =
with=20
prejudice:
On July 14, 2006 . . . CAME TO =
BE HEARD=20
all parties, by and through counsel, . . . Dr. David =
Ott=E2=80=99s=20
Motion to Dismiss and Dr. David Ott=E2=80=99s Motion to Strike =
& Objections to=20
Plaintiff=E2=80=99s [sic] Third Amended Petition . . . . =
The Court,=20
having considered such Motions and Objections, having reviewed the =
file=20
herein, and heard the argument of counsel, makes the following =
FINDINGS OF=20
FACTS and ORDERS:
1.Plaintiffs . . . filed their =
Original=20
Petition on October 24, 2005. The 120-day deadline by which =
Plaintiffs=20
were required to serve their expert reports pursuant to Section =
74.351 of=20
the Tex. Civ. Prac. & =
Rem.=20
Code was February 21, 2006. The earliest date that =
Plaintiffs=20
served an expert report to any Defendant, after the filing of =
their=20
lawsuit, was on February 24, 2006.
. . .
5.With respect to Defendant Dr. David =
Ott,=20
Plaintiffs mailed Defendant Dr. David Ott=E2=80=99s insurance =
agent with an=20
unsigned expert report from Dennis Moritz, M.D. on July 29, 2005.=20
Plaintiffs provided no evidence that Dr. Ott or his counsel =
received said=20
unsigned expert report. The suit was filed by Plaintiffs against =
Dr. Ott=20
on October 24, 2005. The deadline to serve the expert report was =
February=20
21, 2006. Plaintiffs served upon Dr. Ott=E2=80=99s counsel the =
unsigned expert=20
report on February 24, 2006, three days after the 120 day =
deadline,=20
pursuant to Section 74.351 of the Tex. Civ. Prac. & Rem.=20
Code. It is =
therefore ORDERED=20
that Defendant Dr. David Ott=E2=80=99s Motion to Dismiss and =
Motion to Strike and=20
Objections to Plaintiff=E2=80=99s [sic] Third Amended Petition =
[be] GRANTED, and=20
all claims against Dr. David Ott [be] DISMISSED with=20
prejudice.
. . .
7.It is further ORDERED that pursuant to =
Section=20
74.351 of the Tex. Civ. =
Prac. &=20
Rem. Code that =
. . .=20
Dr. David Ott [be] awarded attorney=E2=80=99s fees in the amount =
of $14,893.00.=20
The collection of these attorney=E2=80=99s fees is stayed pending =
outcome of any=20
interlocutory appeal.
This same order also (1) denied St. =
Luke=E2=80=99s=20
Episcopal Hospital and the Texas Heart Institute=E2=80=99s joint =
motion to dismiss=20
under Texas Civil Practice and Remedies Code section 74.351 and =
(2)=20
granted Dr. Grigore and Arthur S. Keats & Associates=E2=80=99 =
motion to=20
dismiss under section 74.351(b).=20
Finally, the trial court signed a separate interlocutory order =
that=20
granted Dr. Willerson=E2=80=99s motion to dismiss based upon Texas =
Civil Practice=20
and Remedies Code section 101.106. See Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 101.106 (Vernon 2005).
<=
/SPAN>The=20
Poland parties appealed the adverse rulings dismissing all of =
their claims=20
against Drs. Ott, Willerson, and Grigore and Arthur S. Keats & =
Associates, and St. =
Luke=E2=80=99s Episcopal=20
Hospital and the Texas Heart Institute appealed the denial of =
their motion=20
to dismiss=E2=80=94all =
under the same=20
appellate cause number. Although the=20
interlocutory order appealed by St. Luke=E2=80=99s Episcopal =
Hospital and the=20
Texas Heart Institute was =
permitted=20
by statute, this was not =
true of=20
every appealed order. See Tex. Civ. Prac. & Rem. Code =
Ann.=20
=C2=A7 51.014(a) (Vernon 1997 & Supp. 2007). =
On December 18, 2006, upon the =
parties=E2=80=99 motion,=20
this Court abated the appeal and remanded the cause for the trial=20
court=E2=80=94upon various parties=E2=80=99 motions, filed in the =
trial court after=20
appeal, to sever the interlocutory orders rendered in favor of Dr. =
Ott, of=20
Dr. Willerson, and of Dr. Grigore and Dr. Arthur S. Keats &=20
Associates=E2=80=94to =
render final and=20
appealable those interlocutory rulings that had not been =
appealable on an=20
interlocutory basis. Upon remand, the trial court severed the =
rulings=20
against the specified defendants from the underlying cause, =
rendering a=20
final judgment in the newly severed cause numbers involving Dr. =
Ott, Dr.=20
Willerson, and Dr. Grigore and Dr. Arthur S. Keats & =
Associates. On=20
March 15, 2007, this Court reinstated the appeal, assigning =
different=20
appellate cause numbers to the appeal of what had by then become =
four=20
separate rulings in four separate trial-court cause numbers. =
This opinion=20
and judgment concern the Poland parties=E2=80=99 appeal of the =
dismissal order=20
rendered in favor of Dr. Ott.
Service on Dr.=20
Ott
<=
/SPAN>In=20
one issue, the Poland parties argue that the trial court erred in =
granting=20
Dr. Ott=E2=80=99s dismissal motion and dismissing their claims =
against him with=20
prejudice because they =E2=80=9Cserved=E2=80=9D their =
expert=E2=80=99s report and CV on McLeod,=20
Dr. Ott=E2=80=99s =E2=80=9Cdesignated representative and duly =
authorized agent,=E2=80=9D about=20
five months before they filed suit against Dr. Ott, rendering the =
report=20
timely filed under former section 74.351(a). They argue that =
service in=20
this fashion was =E2=80=9Cequivalent to serving=E2=80=9D Dr. Ott =
himself and thus=20
satisfied =E2=80=9Cthe spirit of [former] section =
74.351(a).=E2=80=9D They also argue that=20
former section 74.351(a) can be satisfied by provision of an =
expert=E2=80=99s=20
report on a physician or health-care provider before a=20
claim has been asserted against that person or entity in a lawsuit (here, presuit, as Dr. Ott =
was made a=20
defendant by the original petition), so that the same report need =
not be=20
served again within 120 days of the claim=E2=80=99s filing against =
that defendant.=20
Dr. Ott disputes (1) that McLeod was Dr. Ott=E2=80=99s agent for =
purposes of=20
service of the expert report, as a matter of fact; (2) that former =
section=20
74.351(a) allows for service on any person other than the =
defendant or his=20
attorney, as a matter of law; and (3) that provision of an expert =
report=20
before a claim is filed in court against the physician or =
health-care=20
provider complies with former section 74.351(a).
A. Standard=20
of Review and the Law
<=
/SPAN>=E2=80=9CWe=20
generally review rulings on a motion to dismiss under section =
74.351(b)=20
for abuse of discretion.=E2=80=9D Univ. of Tex. Health Sci. =
Ctr. at Houston v.=20
Gutierrez, 237 S.W.3d 869, 871 (Tex. App.=E2=80=94Houston [1st =
Dist.] 2007,=20
pet. filed). However, some =
of the=20
issues that we consider in this appeal are factually based, and =
some are=20
questions of law. =E2=80=9CWe review questions of law de =
novo.=E2=80=9D Id.=20
=E2=80=9CNonetheless, a trial court has no discretion in =
determining what the law=20
is, which law governs, or how to apply the law.=E2=80=9D =
Id. at 871 n.1.=20
Accordingly, the standard of review is the same =
=E2=80=9Cregardless of whether it=20
is described as abuse of discretion or de novo.=E2=80=9D =
Id.;=20
accord Intracare Hosp. N. v. Campbell, 222 S.W.3d 790, 795 =
(Tex.=20
App.=E2=80=94Houston [1st Dist.] 2007, no pet.).
<=
/SPAN>Former=20
section 74.351(a) provides as follows concerning service of the =
expert=20
report and CV:
<=
/SPAN>=C2=A7 74.351. Expert =
Report
(a)In a health care liability claim, a =
claimant=20
shall, not later than the 120th day after the date the claim was =
filed,=20
serve on each party or the party=E2=80=99s attorney one or more =
expert reports,=20
with a curriculum vitae of each expert listed in the report for =
each=20
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 =
Leg., R.S.,=20
ch. 204, =C2=A7 10.01, 2003 Tex. Gen. Laws 847, 875, amended by Act of May 18, 2005, =
79th=20
Leg., ch. 635, =C2=A7 1, 2005 Tex. Gen. Laws 1590, 1590 (current =
version at=20
Tex. Civ. Prac. & =
Rem. Code=20
Ann. =C2=A7 74.351(a) (Vernon Supp. 2007)). The section =
continues:
(b)If, as to a defendant physician or =
health care=20
provider, an expert report has not been served within the period =
specified=20
by Subsection (a), the court, on the motion of the affected =
physician or=20
health care provider, shall, subject to Subsection (c), enter an =
order=20
that:
(1)awards to the affected physician or =
health care=20
provider reasonable attorney=E2=80=99s fees and costs of court =
incurred by the=20
physician or health care provider; and
(2)dismisses the claim with respect to =
the=20
physician or health care provider, with prejudice to the refiling =
of the=20
claim.
Tex. Civ.=20
Prac. & Rem. Code Ann. =C2=A7 74.351(b) (Vernon Supp.=20
2007).
B. Discussion
<=
/SPAN>We=20
need not determine whether the trial court erred to the extent =
that it may=20
have considered whether McLeod was Dr. Ott=E2=80=99s =
=E2=80=9Cdesignated representative=20
and duly authorized agent=E2=80=9D for the=20
purpose of receiving the expert report and CV or whether former =
section=20
74.351(a) even allows designated representatives of a defendant or =
his=20
attorney to receive service of an expert=E2=80=99s report. Even if =
the answer to=20
both questions is =E2=80=9Cyes,=E2=80=9D we must nonetheless =
affirm because (1) provision=20
of an expert report before =
a=20
health-care-liability claim is filed in court against the =
physician or=20
health-care provider =
does not meet former section =
73.351(a)=E2=80=99s=20
service requirements and,=20
independently, (2) nothing shows that the expert report was served =
by=20
proper means.
<=
/SPAN>1. Provision =
of the Report Before a Claim=E2=80=99s =
Filing
<=
/SPAN>Although=20
former section 74.351(a) does not define the term =
=E2=80=9Cserve,=E2=80=9D this Court has=20
recently held that =E2=80=9Cthe Legislature intended for =
[health-care-liability]=20
claimants to comply with rule 21a [of the Texas Rules of Civil =
Procedure]=20
to fulfill the requirements of section 74.351(a).=E2=80=9D =
Gutierrez, 237=20
S.W.3d at 872. =E2=80=9CRule 21a authorizes four methods for =
service upon a party:=20
(1) delivery in person, by agent, or by courier-receipted =
delivery; (2)=20
certified or registered mail; (3) telephonic document transfer; or =
(4)=20
such other manner as the court in its discretion may =
direct.=E2=80=9D Id. (citing Tex. R. Civ. P. 21a). =
=E2=80=9CThe party=20
or attorney of record must certify to the court compliance with=20
. . . rule [21a] in writing over signature and on the =
filed=20
instrument.=E2=80=9D Tex. =
R. Civ. P.=20
21a.
<=
/SPAN>=E2=80=9CStatutes=20
must be construed as written, and legislative intent determined, =
if=20
possible, from their express terms.=E2=80=9D Gutierrez, 237 =
S.W.3d at 873.=20
=E2=80=9CChapter 74, in its entirety, rather than provisions in =
isolation, must be=20
considered, and meaning given to each provision consistent with =
all=20
others.=E2=80=9D Id. =E2=80=9CCourts presume that the =
entire statute is to be=20
effective and a just and reasonable result is intended.=E2=80=9D =
Id. =E2=80=9CEven=20
if a statute is unambiguous, courts may consider the =
statute=E2=80=99s objective;=20
circumstances of its enactment; its legislative history; =
. . .=20
[and] consequences of a particular construction . . . . =
Id.=20
=E2=80=9CAll words used and omitted are presumed used and =
omitted=20
purposefully.=E2=80=9D Id.
<=
/SPAN>The=20
plain language of former =
section=20
74.351(a) and rule 21a, which it implicitly incorporates, simply =
do not=20
contemplate =E2=80=9Cservice=E2=80=9D of the expert=E2=80=99s =
report and CV on a physician or=20
health-care provider =
until after a claim has been filed in=20
court against that person =
or entity.=20
We reach this conclusion despite the fact that, as the Poland =
parties=20
note, the section requires service =E2=80=9Cnot later =
than=E2=80=9D 120 days after=20
a claim is filed, rather than requiring service within 120 days =
after=20
the claim is filed. (Emphasis added.) Act of June 2, 2003, =
78th Leg.,=20
R.S., ch. 204, =C2=A7 10.01, 2003 Tex. Gen. Laws 847, 875, =
amended by=20
Act of May 18, 2005, 79th Leg., ch. 635, =C2=A7 1, 2005 Tex. =
Gen. Laws=20
1590, 1590.
<=
/SPAN>First,=20
former section 74.351(a) speaks in terms of service on a party =
or=20
the party=E2=80=99s attorney, and it uses the term =
=E2=80=9Cdefendant=E2=80=9D for the=20
physicians and health-care providers whom the expert report=20
implicates. See id. =
One is not=20
a =E2=80=9Cparty=E2=80=9D or a =E2=80=9Cdefendant=E2=80=9D until a =
claim is asserted against one in a=20
suit. That =
the=20
Legislature knew what it was saying when it employed the terms =
=E2=80=9Cparty=E2=80=9D and=20
=E2=80=9Cdefendant=E2=80=9D in former section 74.351(a) can be =
seen from other provisions=20
of chapter 74. For example, section 74.051, concerning=20
notice of a=20
health-care-liability claims, provides:
=C2=A7 =
74.051.=20
Notice
(a)Any person or his authorized agent =
asserting a=20
health care liability claim shall give written notice of such =
claim by=20
certified mail, return receipt requested, to each physician or =
health=20
care provider against whom such claim is being made at =
least 60=20
days before the filing of a suit in any court of this state =
based upon=20
a health care liability claim. . . .
(b)In such pleadings as are =
subsequently filed=20
in any court, each party shall state that it has fully =
complied=20
with the provisions of this section . . . and shall =
provide such=20
evidence thereof as the judge of the court may require to =
determine if the=20
provisions of this chapter have been met.
(c)Notice given as provided in this =
chapter shall=20
toll the applicable statute of limitations to and including a =
period of 75=20
days following the giving of the notice, and this tolling shall =
apply to=20
all parties and potential parties.
Tex. Civ.=20
Prac. & Rem. Code Ann. =
=C2=A7 74.051(a)=E2=80=93(c) (Vernon 2003)=20
(emphasis added). Section 74.051(a)=E2=80=99s notice requirements =
necessarily=20
apply before a health-care-liability claim is filed in a suit =
(=E2=80=9CAny person=20
. . . asserting a . . . claim . . . shall give =
written=20
notice . . . at least 60 days before the filing of a =
suit in=20
any court . . . .=E2=80=9D). Thus, when the =
Legislature drafted=20
section 74.051(a), it (1) used neither =E2=80=9Cparty=E2=80=9D nor =
=E2=80=9Cdefendant,=E2=80=9D but=20
instead spoke only of persons, claimants, physicians, and =
health-care=20
providers; (2) spoke of claims that =E2=80=9Care being =
made,=E2=80=9D rather than=20
of claims that are =E2=80=9Cfiled=E2=80=9D; and (3) =
provided that written notice be=20
=E2=80=9Cgive[n],=E2=80=9D rather than that it be =
=E2=80=9Cserved.=E2=80=9D See id. (emphasis=20
added). In contrast, section 74.051(b), which necessarily =
establishes=20
requirements applying only after court claims have been filed =
(=E2=80=9CIn such=20
pleadings as are subsequently filed in any court, each =
party shall=20
. . . .=E2=80=9D), the Legislature employed the =
term =E2=80=9Cparty.=E2=80=9D=20
See id. =C2=A7 74.051(b). And throughout chapter 74, =
the=20
Legislature employs the terms =E2=80=9Cparty,=E2=80=9D =
=E2=80=9Cplaintiff,=E2=80=9D and =E2=80=9Cdefendant=E2=80=9D only=20
in those sections that clearly concern actions, events, or =
requirements=20
that necessarily follow the filing of a health-care-liability =
claim in=20
court.
<=
/SPAN>In=20
sum, when the Legislature intended that chapter 74=E2=80=99s =
requirements would or=20
could occur before the filing of a claim in court, it did not employ terms like =
=E2=80=9Cparty=E2=80=9D or=20
=E2=80=9Cdefendant=E2=80=9D; in contrast, only those sections of =
chapter 74 that=20
necessarily concern actions, events, or requirements occurring =
after the=20
filing of a court claim employ these terms. Therefore, the use of =
the=20
terms =E2=80=9Cparty=E2=80=9D and =E2=80=9Cdefendant=E2=80=9D in =
former section 74.351(a) indicates that=20
the Legislature intended for this section=E2=80=99s service =
requirements to apply=20
only after the filing of a claim in court. See Gutierrez, 237 S.W.3d at 873 (=E2=80=9CChapter =
74, in its entirety,=20
rather than provisions in isolation, must be considered, and =
meaning given=20
to each provision consistent with all =
others.=E2=80=9D).
<=
/SPAN>Second,=20
the defendant whose conduct is implicated in the expert=E2=80=99s =
report =E2=80=9Cmust=20
file and serve any objection to the sufficiency of a =
report=20
not later than the 21st day after the date it was served, failing =
which=20
all objections are waived.=E2=80=9D Tex.=20
Civ. Prac. & Rem. Code Ann. =C2=A7 74.351(a) =
(emphasis added).=20
There is no proceeding in which to =E2=80=9Cfile=E2=80=9D the =
objection until a claim is=20
asserted in court. A good illustration is a case like this one, in =
which=20
the health-care-liability claimants purport to have provided the =
physician=20
with the expert report more than 21 days before the filing of a =
court=20
claim against him. The =
result of the=20
Poland parties=E2=80=99 interpretation in this case is that Dr. =
Ott could never=20
have timely filed an objection to the expert report with the court =
because=20
the 21-day deadline to do so would have expired before a =
proceeding=20
existed in which that objection could have been filed. Simply put, the 21-day deadline for a=20
defendant=E2=80=99s objections makes no sense unless a court claim =
has already=20
been filed against the defendant. We cannot presume that the =
Legislature=20
intended the nonsensical result that could occur under the Poland =
parties=E2=80=99=20
interpretation. See id. (=E2=80=9CCourts presume that the =
entire statute is=20
to be effective and a . . . reasonable result is=20
intended.=E2=80=9D).
<=
/SPAN>Third,=20
the plain language of rule 21a, the service methods of which =
former=20
section 74.351(a) incorporates,
generally concerns postsuit notice. Rule =
21a=20
provides (1) that =E2=80=9C[e]very notice required by these rules, =
and every=20
pleading, plea, motion, or other form or request to be served =
under Rule=20
21, other than the citation . . . may be served=E2=80=9D =
in one of four=20
ways upon =E2=80=9Cthe party=E2=80=9D or =E2=80=9Cthe =
party=E2=80=99s duly authorized agent or attorney of=20
record=E2=80=9D; (2) that one of those four methods is any manner =
=E2=80=9Cas the court=20
. . . may direct=E2=80=9D; (3) that =E2=80=9C[n]otice =
may be served by a party=20
to the suit=E2=80=9D or =E2=80=9Can attorney of record,=E2=80=9D =
among others; and (4) that =E2=80=9C[t]he=20
party or attorney of record shall certify to the court compliance =
with=20
this rule in writing over signature and on the filed =
instrument.=E2=80=9D Tex. R. Civ. P. 21a. =
Texas Rule of=20
Civil Procedure 21, to which rule 21a=E2=80=99s service provisions =
refer, is=20
entitled =E2=80=9CFiling and Serving Pleadings and =
Motions=E2=80=9D and concerns =E2=80=9C[e]very=20
pleading, plea, motion or application to the court=E2=80=9D; the rule also employs =
language clearly=20
indicating its application to pending suits. Tex. R. Civ. P. =
21. The fact that former section 74.351(a) =
implicitly incorporates by reference rule 21a=E2=80=94which =
concerns service of=20
pleadings, pleas, motions, and requests in the context of=20
lawsuits=E2=80=94further =
indicates the=20
Legislature=E2=80=99s intent that former section =
74.351(a)=E2=80=99s service requirements=20
apply after the filing of a health-care-liability claim in=20
court.
<=
/SPAN>Fourth,=20
a physician or health-care provider may not know the details of =
the=20
allegations against him=E2=80=94or even be assured that he or it =
will be=20
sued=E2=80=94until the filing of a petition asserting a =
health-care-liability=20
claim. Chapter 74 requires that the claimant give presuit notice =
of his=20
health-care-liability claim before the filing of a court claim, =
but the=20
purpose of the notice provision is simply =E2=80=9Cto encourage =
pre-suit=20
negotiations so as to avoid excessive cost of =
litigation.=E2=80=9D Schepps=20
v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 938 (Tex.=20
1983); accord Phillips =
v.=20
Sharpstown Gen. Hosp., 664 S.W.2d 162, 168 (Tex. =
App.=E2=80=94Houston [1st=20
Dist.] 1983, no writ) (indicating that purpose of predecessor to =
section=20
74.051(a) is =E2=80=9Cto =
facilitate=20
discussion of the merits of a potential health care claim and =
thereby=20
initiate amicable settlement negotiations=E2=80=9D). If a court claim is later filed, the =
petition=E2=80=99s=20
allegations could, theoretically, differ somewhat from whatever =
the=20
presuit notice stated. Furthermore, chapter 74 does not require =
that every=20
person or entity who is given presuit notice actually be sued. =
See=20
Thompson v. Community Health Inv. Corp., 923 S.W.2d =
569, 572=20
(Tex. 1996) (providing that predecessor to section 74.051(a) does =
not=20
require =E2=80=9Cthat all those receiving presuit notice be joined =
in any=20
subsequent suit=E2=80=9D). If, as the Poland parties contend, =
former section=20
74.351(a)=E2=80=99s service requirement can be fulfilled by =
providing the expert=20
report to a physician or health-care provider before a=20
health-care-liability claim is filed against him or it in court, =
then the=20
physician or health-care provider will be put in the position of having to =
object to=20
the report=E2=80=94and likely of hiring counsel to do =
so=E2=80=94before having a=20
petition=E2=80=99s allegations against which to compare the =
expert=E2=80=99s report or=20
even knowing if they will be sued at all. The Legislature surely =
did not=20
intend this result.
<=
/SPAN>Finally,=20
=E2=80=9Cthe purposes behind former section 74.351(a)=E2=80=99s =
adoption were, among other=20
things, to remove unwarranted delay and expense, to accelerate the =
disposition of non-meritorious cases, and to give hard-and-fast =
deadlines for the serving of expert reports.=E2=80=9D =
Intracare Hosp.=20
N., 222 S.W.3d at 797 (emphasis added). Section 74.351(a)=E2=80=99s =
expert-report deadline is=20
hard-and-fast only if it is triggered by the filing of a=20
health-care-liability claim against the particular physician or=20
health-care provider in court. Allowing the provision of an expert =
report=20
that occurs before a court claim is filed to suffice for section 74.351(a) service =
potentially allows for ambiguity and confusion, as our discussion =
above=20
and this case demonstrate, rather than promoting certainty. =
Because such=20
an interpretation would contravene the Legislature=E2=80=99s =
intent in adopting=20
former section 74.351(a), we do not deem the Legislature to have =
intended=20
it. See Gutierrez, 237 S.W.3d at 873 (=E2=80=9CEven if a =
statute is=20
unambiguous, courts may consider the statute=E2=80=99s objective; =
circumstances of=20
its enactment; its legislative history; . . . [and] =
consequences=20
of a particular construction . . . =
.=E2=80=9D).
<=
/SPAN>2. Method=20
of Service
<=
/SPAN>Additionally,=20
and in any event, nothing shows that the expert report was sent to =
McLeod=20
by any of the four methods enumerated in rule 21a. The Poland =
parties=E2=80=99=20
counsel=E2=80=99s July 29 letter, by use of the term =
=E2=80=9Cenclosed,=E2=80=9D indicated that=20
the expert report and CV were=20
enclosed in some sort of packaging, but nothing in the letter said =
by what=20
means the enclosed documents were delivered to McLeod. The letter =
then=20
stated that counsel would =E2=80=9Cfax some additional =
information=E2=80=9D to McLeod, but=20
the =E2=80=9Cadditional information=E2=80=9D was not specified. =
Furthermore, counsel=E2=80=99s=20
affidavit merely averred that she =E2=80=9Creplied . . . by =
sending=E2=80=9D the report=20
and CV to McLeod, =
without=20
stating how the =E2=80=9Csending=E2=80=9D occurred. None of this evidence demonstrated that =
the Poland=20
parties served the required items by one of the four methods set =
out in=20
rule 21a. Service by methods other than those enumerated in rule =
21a does=20
not comply with section 74.351(a)=E2=80=99s service requirement. =
See Acosta v.=20
Chheda, No. 01-07-00398-CV, 2007 WL 3227650, at *2 (Tex. =
App.=E2=80=94Houston=20
[1st Dist.] Nov. 1, 2007, no pet. h.) (memo. op.) (concluding that =
emailing of expert=E2=80=99s CV did not comply with section =
74.351(a)=E2=80=99s service=20
requirements because email is not method of service authorized by =
rule=20
21a); Herrera v. Seton =
Northwest=20
Hosp., 212 S.W.3d 452, =
459 (Tex.=20
App.=E2=80=94Austin 2006, no pet.) (=E2=80=9C[A] party who sends =
documents to another by=20
regular mail=E2=80=94which is not authorized by rule =
21a=E2=80=94does not comply with the=20
120-day service requirement in section 74.351(a).=E2=80=9D); =
cf. Gutierrez, 237 S.W.3d at =
873=20
(in rejecting =
claimant=E2=80=99s=20
argument that section 74.351(a)=E2=80=99s service requirement had =
been complied=20
with because defendant had received expert report from another =
defendant,=20
rather than from claimant, reasoning, =E2=80=9CIf we accept =
appellees=E2=80=99 argument=20
that actual receipt (from any source) of expert reports prior to =
suit=E2=80=99s=20
being filed, regardless of the manner in which those reports were=20
furnished, meets the requirements of section 74.351, then we must=20
completely disregard legislative intent as evidenced by the =
replacement of=20
the word =E2=80=98furnish=E2=80=99 [in prior version of section =
74.351(a)] with the word=20
=E2=80=98serve=E2=80=99 [in current =
version].=E2=80=9D).=20
<=
/SPAN>The=20
Poland parties nonetheless rely on the statement of Dr. =
Ott=E2=80=99s counsel to=20
the trial court that =E2=80=9CDr. Ott received it [the expert =
report] through=E2=80=94he=20
was served with it through his carrier presuit =
notification.=E2=80=9D They argue=20
that this statement was an acknowledgment that they =E2=80=9Cserved Dr. Ott [with the =
report] in the=20
manner that he requested.=E2=80=9D (Emphasis added.) However, =
counsel=E2=80=99s=20
statement does not say anything about the method of service. =
Additionally, we note that =
McLeod=E2=80=99s July 13 letter=20
to the Poland parties=E2=80=99 counsel requested only that the Poland =
parties=E2=80=99 counsel=20
=E2=80=9Cprovide [him] with [the] medical expert=E2=80=99s =
specific criticisms of=20
our member=E2=80=99s care,=E2=80=9D without indicating how those =
criticisms should be=20
sent=E2=80=94or even that those criticisms be sent in the form of =
a section=20
74.351(a) report and CV. (Emphasis added.) McLeod=E2=80=99s July 13 letter is thus =
no evidence that=20
McLeod=E2=80=94even if he could act and was acting as Dr. =
Ott=E2=80=99s representative for=20
purposes of service under former section 74.351(a), and assuming =
that he=20
could alter rule 21a=E2=80=99s methods of service by =
request=E2=80=94requested any method=20
of service besides those required by rule 21a.
<=
/SPAN>Nor,=20
contrary to the Poland parties=E2=80=99 implication on appeal, =
does Dr. Ott=E2=80=99s=20
counsel=E2=80=99s statement, when considered in context, =
necessarily indicate that=20
Dr. Ott actually received the expert report and CV from his =
insurer, as=20
the trial court noted in the appealed order=E2=80=99s factual =
recitations.=20
For example, counsel =
immediately=20
qualified the relied-upon statement when questioned by the trial=20
court:
Court:Ott gets report presuit, directly =
from his=20
insurance carrier. Attorneys never=E2=80=94
Dr. Ott=E2=80=99s attorney:The insurance carrier, yes. The =
insurance=20
carrier gets them.
(Emphasis added.) Additionally, McLeod=E2=80=99s July 13 =
letter to the=20
Poland parties=E2=80=99 counsel indicated that APMC Insurance=20
Services would be =
investigating=20
the case on behalf of Dr. Ott, and McLeod indicated only that he =
might=20
=E2=80=9Cshare those =
concerns=E2=80=9D raised=20
by the report=E2=80=94not necessarily the expert report and CV =
themselves=E2=80=94with Dr.=20
Ott. (Emphasis added.) The =
trial=20
court would not have abused its discretion in finding, based on =
this=20
evidence, that nothing showed that Dr. Ott actually received the =
expert=20
report or CV from his alleged agent.
Finally, the trial court could have =
relied on Dr.=20
Ott=E2=80=99s counsel=E2=80=99s statement, made upon his personal =
knowledge even if not=20
under oath, that his firm had not received the expert report and =
CV until=20
123 days after the claims against Dr. Ott had been=20
filed.
<=
/SPAN>We=20
hold that the trial court did not err in granting Dr. =
Ott=E2=80=99s motion to=20
dismiss under section 74.351(b) and in dismissing with prejudice =
all=20
claims against him.
Conclusion
<=
/SPAN>We=20
affirm the judgment of the trial court.
Tim Taft
Justice
Panel consists of Justices Taft, Keyes, =
and=20
Alcala. |