Opinion issued February 14, =
2008
In The
Court of=20
Appeals
For The
First =
District of=20
Texas
____________
NO.=20
01-06-01038-CV
____________
ST. =
LUKE=E2=80=99S=20
EPISCOPAL HOSPITAL and THE TEXAS HEART INSTITUTE,=20
Appellants
V.
RAYMON =
POLAND,=20
INDIVIDUALLY AND AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF =
JESSIE=20
POLAND, ROBERT MARTIN, and FRANK MARTIN,=20
Appellees
On Appeal from =
152nd=20
District Court
Harris County,=20
Texas
Trial Court Cause =
No.=20
2006-38894
MEMORANDUM=20
OPINION
<=
/SPAN>Appellants,=20
St. Luke=E2=80=99s Episcopal Hospital and the Texas Heart =
Institute, appeal from=20
the trial court=E2=80=99s interlocutory order denying their motion =
to dismiss the=20
health-care-liability claims of appellees, Raymon Poland, =
individually and=20
as independent administrator of the estate of Jessie Poland, =
Robert=20
Martin, and Frank Martin (=E2=80=9Cthe Poland parties=E2=80=9D), =
for the Poland parties=E2=80=99=20
failure timely to serve an expert report on them. See Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 51.014(a)(9) (Vernon Supp. 2007). We=20
determine whether an expert report served on appellants more than =
120 days=20
after health-care-liability claims were first alleged against =
them, but=20
which was provided to =
appellants=E2=80=99=20
counsel before the filing of a petition alleging such claims =
against them,=20
was timely =E2=80=9Cserved=E2=80=9D under the version of section =
74.351(a) that applies to=20
this case. See 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 =
within 120 days of claim=E2=80=99s =
filing) [hereinafter =E2=80=9Cformer section=20
74.351(a)=E2=80=9D], =
amended by Act of=20
May 18, 2005, 79th Leg., R.S., ch. 635, =C2=A7 1, 2005 Tex. =
Gen. Laws=20
1590, 1590 (current version at Tex.=20
Civ. Prac. & Rem. Code Ann. =C2=A7 74.351(a) =
(Vernon Supp.=20
2007)). Concluding that the =
report=20
was untimely served, we reverse the judgment in part, affirm it in =
part,=20
and remand the cause with instructions.
Background
<=
/SPAN>The=20
factual recitations come mainly from the Poland parties=E2=80=99 =
petitions.=20
Appellant Raymon Poland was the husband of Jessie Poland; the =
remaining=20
appellants were his natural children. In August 2003, Jessie =
Poland, under=20
the care of Dr. James Willerson (an appellee in a related appeal) =
and Dr.=20
Ott (an appellee in another related appeal), was hospitalized at =
St.=20
Luke=E2=80=99s Episcopal Hospital and the Texas Heart Institute =
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 =
appellees=20
in another related appeal), =
was the=20
anesthesiologist for the surgical procedure. The Poland parties =
alleged=20
that, at the time of surgery, Jessie Poland=E2=80=99s blood =
contained a level of=20
Coumadin that the health-care providers should have known rendered =
her=20
blood fully anti-coagulated and, thus, rendered surgery dangerous. =
The=20
surgery was nonetheless performed; Jessie Poland bled internally; =
and she=20
died several days later of multi-system organ =
failure.
<=
/SPAN>In=20
their original and first amended petitions, both of which were =
filed on=20
October 24, 2005, the =
Poland parties=20
sued, among other defendants, St. Luke=E2=80=99s Episcopal =
Hospital, the Texas=20
Heart Institute, the University of Texas Health Science Center at =
Houston,=20
Dr. Arthur S. Keats & Associates, and Drs. Ott, Grigore, and =
Willerson=20
for Jessie Poland=E2=80=99s wrongful death, for her pain and =
suffering and medical=20
costs before her death, and for her burial expenses. By the time =
of the=20
trial court=E2=80=99s complained-of ruling, the Poland parties had =
amended their=20
petition two more times to allege the following causes of action =
or=20
theories of recovery against all defendants, including appellants: =
(1)=20
negligence, (2) gross negligence, (3) actual and constructive =
fraud, (4)=20
intentional infliction of emotional distress, (5) assault and =
battery, (6)=20
intentional and negligent abandonment, (7) breach of fiduciary =
duties, (8)=20
=E2=80=9Cnegligent breach of fiduciary duties,=E2=80=9D (9) =
malpractice, (10) =E2=80=9Clack of=20
proper informed consent,=E2=80=9D (11) =E2=80=9Ctampering with =
official medical records,=E2=80=9D=20
(12) =E2=80=9Cforgery,=E2=80=9D (13) violations of the Texas =
Deceptive Trade=20
Practices=E2=80=93Consumer Protection Act =
(=E2=80=9CDTPA=E2=80=9D), ![3DFootnote](3D"")
and (14) conspiracy among all =
defendants. This=20
=E2=80=9Clive,=E2=80=9D third amended petition also added =
allegations that the defendants=20
had altered Jessie Poland=E2=80=99s medical records and forged =
Raymon Poland=E2=80=99s=20
signature on unspecified hospital documents. The Poland parties =
sought=20
actual and exemplary damages.
<=
/SPAN>Appellants=20
moved, under Texas Civil Practice and Remedies Code section =
74.351(b), to=20
dismiss the Poland parties=E2=80=99 health-care-liability claims =
against them for=20
failure to serve an expert report upon them or their attorneys =
within 120=20
days of the filing of these 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)); see also Act of June 2, 2003, =
78th Leg.,=20
R.S., ch. 204, =C2=A7 10.01, 2003 Tex. Gen. Laws 847, =
875, amended by Act of May 18, 2005, =
79th=20
Leg., R.S., ch. 635, =C2=A7 1, 2005 Tex. Gen. Laws 1590, =
1590. Appellants=E2=80=99=20
motion to dismiss alleged that the Poland parties had served their =
expert=20
report 123 days after these claims had been filed against =
appellants.=20
Alternatively, appellants =
argued=20
that, even if the court determined that service was timely, the =
court=20
should nonetheless strike the expert report for substantive =
insufficiency.=20
See Tex. Civ. =
Prac. &=20
Rem. Code Ann. =C2=A7 74.351(a) (Vernon Supp. 2007) =
(requiring each=20
defendant whose conduct is implicated by health-care-liability =
claim to=20
file and to serve any objection to expert report=E2=80=99s =
sufficiency within 21st=20
day of report=E2=80=99s service); id.=20
=C2=A7 74.351(l) (Vernon Supp. 2007) (requiring court to =
grant challenge=20
to adequacy of expert report only if it appears that report does =
not=20
represent objective, good-faith effort to comply with statutory =
definition=20
of such report); id. =C2=A7 74.351(r)(6) (Vernon Supp. =
2007)=20
(defining =E2=80=9Cexpert report=E2=80=9D). Finally, as did =
several other defendants,=20
appellants objected to the Poland parties=E2=80=99 live petition =
to the extent=20
that it attempted to recast health-care-liability claims as other =
causes=20
of action. Appellants =
sought=20
attorney=E2=80=99s fees under Texas Civil Practice and Remedies =
Code section=20
74.351(b). See id. =C2=A7 74.351(b)(1) (requiring =
trial court to=20
award attorney=E2=80=99s fees to defendant who prevails on =
dismissal motion based=20
on failure to serve expert report timely).
<=
/SPAN>The=20
Poland parties responded to appellants=E2=80=99 section 74.351(b) =
dismissal=20
motion. That response is not in the record, but we know from =
appellants=E2=80=99=20
reply to it and from the parties=E2=80=99 appellate briefing that =
the Poland=20
parties did not deny that they had served the report of their =
expert, Dr.=20
Dennis Moritz,
on appellants=E2=80=99 counsel 123 days =
after the filing=20
of the original and first amended petition; instead, the Poland =
parties=20
asserted that Dr. Moritz=E2=80=99s May 2, 2005 expert report was =
timely because it=20
had been =E2=80=9Cserved=E2=80=9D on appellants in early May 2005, =
well before suit was=20
filed, by their having faxed it to appellants=E2=80=99 counsel, =
along with Dr.=20
Moritz=E2=80=99s curriculum vitae, despite the =
report=E2=80=99s not having=20
referenced section 74.351.=20
Appellants replied that the =
Poland=20
parties=E2=80=99 provision of an expert report before the filing =
of the=20
health-care-liability claims against them did not meet former =
section=20
74.351(a)=E2=80=99s requirements. Appellants again requested =
attorney=E2=80=99s=20
fees.
<=
/SPAN>On=20
July 14, 2006, the trial court heard appellants=E2=80=99 motion to dismiss =
for untimely service=20
and their objections to the Poland parties=E2=80=99 live petition. =
Other=20
defendants=E2=80=99 motions to dismiss, objections to the expert =
report, and=20
motions to strike the live petition were heard simultaneously. No=20
additional evidence was presented at the hearing. Some time after this hearing, the record =
indicates=20
that the trial court verbally ruled that it would deny =
appellants=E2=80=99 motion=20
to dismiss for untimely service; for=20
this reason, on September 8, 2006, the trial court heard =
appellants=E2=80=99=20
objections to the expert report=E2=80=99s sufficiency. =
As before, no additional evidence was =
presented at=20
this second hearing.
<=
/SPAN>On=20
October 30, 2006, the trial court rendered an interlocutory order =
that,=20
among doing other things, denied appellants=E2=80=99 motion to =
dismiss the=20
health-care-liability claims against them for lack of timely =
service and=20
also denied their objection to the report=E2=80=99s =
sufficiency:
On July 14, 2006 . . . CAME TO =
BE HEARD=20
all parties, by and through counsel, . . . St. =
Luke=E2=80=99s Episcopal=20
Hospital=E2=80=99s and [the] Texas Heart Institute=E2=80=99s =
Objections to Plaintiff=E2=80=99s=20
Chapter 74, Section 74.351 Expert Report and Motion to Dismiss =
Pursuant to=20
Chapter 74, Section 74.351 . . . . 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 =
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.
. . .
2.With=20
respect to Defendants, St. Luke=E2=80=99s Episcopal Hospital and =
[the] Texas Heart=20
Institute, on May 6, 2005, =
prior to=20
filing suit, counsel for Plaintiff, Raymon Poland, mailed counsel =
for=20
these Defendants an unsigned report from Dennis Moritz, M.D. dated =
May 2,=20
2005. The cover letter attaching the report did not specify that =
the=20
report was being provided in accordance with the provisions of =
Chapter 74=20
of the Texas Civil Practice and Remedies Code. As Plaintiff, =
Raymon=20
Poland, provided an expert report to Defendants, St. =
Luke=E2=80=99s Episcopal=20
Hospital and [the] Texas Heart Institute, before suit was filed, the Court finds =
that=20
[plaintiffs-appellees] TIMELY served the Chapter 74, =
Section 74.351=20
report as to Defendants, St. Luke=E2=80=99s Episcopal Hospital and =
[the] Texas=20
Heart Institute.
. . .
4.With further respect to Defendants, =
St. Luke=E2=80=99s=20
Episcopal Hospital=E2=80=99s and [the] Texas Heart =
Institutes=E2=80=99 [sic] Objections to =
Plaintiffs=E2=80=99 Chapter 74,=20
Section 74.351 Expert Report as insufficient, the court further =
finds that=20
[plaintiffs-appellees=E2=80=99] expert report of Dennis Moritz, =
M.D. dated May 6,=20
2005 is SUFFICIENT and Defendants, St. Luke=E2=80=99s =
Episcopal Hospital=E2=80=99s=20
and [the] Texas Heart Institutes=E2=80=99=20
[sic] Motion to Dismiss Pursuant to Chapter 74, Section 74.351=20
of the Texas Civil Practice =
and=20
Remedies Code is=20
DENIED.
(Emphasis in original.) The trial court =
did not=20
rule on appellants=E2=80=99 objections to the Poland =
parties=E2=80=99 live petition based=20
on the assertion that the petition recast health-care-liability =
claims as=20
other causes of action. =
This same=20
order also granted the dismissal motions of Dr. Ott and of Dr. =
Grigore and=20
Dr. Arthur S. Keats & Associates under section =
74.351(b). Finally, the trial court signed a =
separate=20
interlocutory order, also dated October 30, 2006, that granted Dr. =
Willerson=E2=80=99s motion to dismiss based upon Texas Civil =
Practice and Remedies=20
Code section 101.106(f). See Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7 101.106(f) (Vernon =
2005).
<=
/SPAN>Appellants=20
appealed the denial of their motion to dismiss, and the Poland parties appealed the =
adverse=20
rulings dismissing all of their claims against Dr. Ott, Dr. =
Willerson, and=20
Dr. Grigore and Dr. Arthur S. Keats & Associates=E2=80=94all under the same appellate =
cause number.=20
Although the interlocutory order appealed by appellants was =
permitted by=20
statute, this was not true =
of every=20
appealed order. See Tex.=20
Civ. Prac. & Rem. Code Ann. =C2=A7 51.014(a) =
(Vernon Supp.=20
2007). On December 18, =
2006, this=20
Court, upon the parties=E2=80=99 motion, abated the appeal and =
remanded the cause=20
for the trial court=E2=80=94upon various parties=E2=80=99 motions, =
filed in the trial=20
court after appeal, to sever the interlocutory orders rendered in =
favor of=20
Drs. Ott, Willerson, and 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 and judgment concern =
appellants=E2=80=99=20
appeal of the interlocutory order denying their motion to=20
dismiss.
Service on=20
Appellants
<=
/SPAN>Under=20
their first issue, appellants argue that the provision of an =
expert report=20
to a physician or health-care provider before a court claim is filed against =
that=20
individual or entity does not comply with former section =
74.351(a). The=20
Poland parties respond that former section 74.351(a) can be =
satisfied by=20
provision of an expert=E2=80=99s report before a claim has been asserted against =
that=20
person or entity in a =
lawsuit, so=20
that the same report need not be served again within 120 days of =
the=20
claim=E2=80=99s filing against that defendant.
<=
/SPAN>Former=20
section 74.351(a) provides as follows concerning service of the =
expert=20
report and curriculum vitae:
<=
/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., R.S., ch. 635, =C2=A7 1, 2005 Tex. Gen. Laws 1590, 1590 =
(current version=20
at Tex. Civ. Prac. & =
Rem. Code=20
Ann. =C2=A7 74.351(a)). The section=20
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).
<=
/SPAN>This=20
Court has recently held that =E2=80=9C[t]he plain language of =
former section 74.351(a) and [Texas Rule =
of Civil=20
Procedure] 21a, which it implicitly incorporates, simply do not=20
contemplate =E2=80=98service=E2=80=99 of the expert=E2=80=99s =
report and [curriculum vitae]=20
on a physician or health-care provider until after=20
a claim has been filed in court=20
against that person or entity.=E2=80=9D Poland v. =
Ott, No. 01-07-00199-CV, 2008 WL 257382, at =
*6 (Tex.=20
App.=E2=80=94Houston [1st Dist.] Jan. 31, 2008, no pet. h.). =
Accordingly, the=20
provision of an expert report to a physician or health-care =
provider=20
before a claim is filed =
against that=20
individual or entity in court does not comply with former section=20
74.351(a)=E2=80=99s service requirement; instead, the 120-day =
period in which an=20
expert report must be served is triggered under former section =
74.351(a)=20
by the filing of a health-care-liability claim against that person =
or=20
entity. See=20
id.
<=
/SPAN>Because=20
the Poland parties did not serve their expert=E2=80=99s report =
within the 120-day=20
period following their assertion of a health-care-liability claim =
against=20
appellants, the trial court had no discretion to do anything =
except to=20
dismiss the health-care-liability claims against these two =
defendants with=20
prejudice. See Tex. Civ.=20
Prac. & Rem. Code Ann. =C2=A7 74.351(b)(2) =
(providing that=20
trial court =E2=80=9Cshall =
dismiss[] the=20
claim with respect to the physician or health care provider, with=20
prejudice to the refiling of the claim=E2=80=9D). Accordingly, we hold that =
the trial court=20
erred in denying appellants=E2=80=99 motion to dismiss that was =
based on section=20
74.351(b).
<=
/SPAN>Given=20
our disposition of appellants=E2=80=99 first=20
issue, we need not reach their second issue, which asserts that, =
if=20
timely, the expert report was substantively deficient.
Disposition
<=
/SPAN>We=20
reverse that portion of the October 30, 2006 interlocutory order =
that=20
denied the motion, asserted under section 74.351(b), to dismiss =
the=20
health-care-liability claims alleged against appellants. We affirm =
the=20
order except as herein reversed.
We remand the cause with instructions =
for the=20
trial court to render an =
order=20
granting appellants=E2=80=99 dismissal motion and dismissing with=20
prejudice all =
health-care-liability=20
claims against appellants. See id. We remand the cause with instructions, =
rather=20
than rendering a judgment of dismissal with prejudice, because of =
other=20
matters that the trial court must address upon remand. =
<=
/SPAN>For=20
example, in their dismissal motion, appellants requested attorney=E2=80=99s fees, which =
the trial court=20
did not award because of its disposition. Because the trial court =
will=20
grant appellants=E2=80=99 section 74.351(b) dismissal =
motion upon remand, the trial court must also =
award=20
these parties =E2=80=9Creasonable attorney=E2=80=99s fees and =
costs of court incurred by=E2=80=9D them. See id. =
=C2=A7 74.351(b)(1). Upon remand,=20
the trial court must determine the amount of attorney=E2=80=99s =
fees and their=20
reasonableness, matters that it did not reach before. See id.
<=
/SPAN>Additionally,=20
section 74.351 applies only to health-care-liability claims. =
See=20
id. =C2=A7 74.351. The Poland parties=E2=80=99 live =
petition alleged not only=20
health-care-liability claims, but also alleged intentional torts,=20
violations of the DTPA and of Penal Code provisions, conspiracy to =
commit=20
various matters, and breaches of fiduciary duty. Still pending =
before the=20
trial court is appellants=E2=80=99 objection=20
to the live petition of the Poland parties, which objection =
asserted that=20
the Poland parties had improperly recast what were simply=20
health-care-liability claims as other causes of action. The scope =
of the=20
trial court=E2=80=99s dismissal under section 74.351(b) will =
necessarily be=20
determined by its disposition of these objections that=20
appellants raised to the petition=E2=80=99s=20
allegations.
Tim Taft
Justice
Panel consists of Justices Taft, Keyes, =
and=20
Alcala. |