Mitchell v. The Methodist Hospital (pdf) (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Hanks)
(medical malpractice suit, adequacy of expert report, attorney's fees in HCLC suit)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Keyes, Alcala and Hanks
01-08-00898-CV Chiquita Mitchell, Verazonda Mitchell, Dominque Mitchell, Aaron Mitchell, Samuel Mitchell,
Frank Mitchell III, Carl Mitchell, Marie Ophelia, Theodore Mitchell & Johnation Mitchell v. The Methodist
Hospital, Rose Young, Melissa Abbot, Denise M. Stuckey and Bernice Onyenuzi
Appeal from 270th District Court of Harris County
Trial Court Judge: Hon. Brent Gamble
Chiquita Mitchell, Verazonda Mitchell, Dominique Mitchell, Aaron Mitchell, Samuel Mitchell, Frank Mitchell III,
Carl Mitchell, Marie Ophelia, Theodore Mitchell, and Jonathon Mitchell (collectively, "the Mitchells") bring this
appeal to contest the trial court's dismissal of their healthcare liability lawsuit against The Methodist Hospital,
Rosie Young, Melissa Abbot, Denise M. Stuckey, and Bernice Onyenuzi (collectively, "Methodist"). We affirm.
Frank Mitchell was admitted to Methodist in November 2008, complaining of chest pain. Mr. Mitchell was
diagnosed with a myocardial infarction and underwent cardiac catheterization and placement of a cardiac
stent. During his 3-day stay, hospital staff placed an IV catheter in Mr. Mitchell's left arm.
Shortly after his discharge, Mr. Mitchell developed a fever and began to suffer pain in his left arm. He went to
the Emergency Room at Methodist, where he was given a prescription for amoxicillin and told to take Motrin
for the pain. After his symptoms did not improve, he returned to the Emergency Room at Methodist. Mr.
Mitchell was subsequently diagnosed with septic thrombophlebitis--inflammation of a vein due to
infection--and re-admitted to the hospital. During his second hospitalization, Mr. Mitchell developed
multisystemic organ failure and he died on December 27, 2005.
The Mitchells then filed suit against Methodist, alleging that certain employees of Methodist were grossly
negligent in their care of Mr. Mitchell with regard to the insertion and care of the IV, failing to prevent Mr.
Mitchell's infection by providing inadequate and unsafe facilities, failing to properly instruct and train hospital
personnel, and failing to properly diagnose and treat Mr. Mitchell's infection. The Mitchells' First Amended
Petition named both Methodist Hospital as well as registered nurses Bernice Onyenezi, Rosie Young, Melissa
Abbott, and Denise M. Stuckey and other named and unnamed Methodist employees as defendants. The
Amended Petition alleged that Methodist was vicariously liable for the acts of its employees. Onyenezi,
Young, Abbott, and Stuckey were each served and filed an answer in this lawsuit.
Methodist sought to dismiss the Mitchells' lawsuit pursuant to Chapter 74 of the Texas Civil Practice and
Remedies Code, which requires plaintiffs in a healthcare liability lawsuit to file expert reports providing "a fair
summary of the expert's opinions . . . regarding applicable standards of care, the manner in which the care
rendered by the physician or health care provider failed to meet the standards, and the causal relationship
between that failure and the injury, harm, or damages claimed."
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (r) (Vernon Supp. 2008). Methodist argued that the Mitchells'
expert report was fatally deficient because it failed to provide a fair standard of care for any of the
defendants, because the expert's opinions were "wholly conclusory and based on mere conjecture and
assumptions that are contrary to the medical record and fact," because the expert's criticisms were not tied
to any particular defendant, and because the expert failed to provide a fair summary of how the alleged
breaches of the standard of care proximately caused Mr. Mitchell's injuries.
The Mitchells objected to the timeliness of Methodist's motion to dismiss. The Mitchells argued that
Methodist's objections to the expert's report were served by fax, one day too late, and the objections were
therefore waived. Methodist replied by pointing out its objections to the Mitchells' expert report had been
timely filed in the Harris County District Clerk's after-hours drop box and had been mailed that same evening
via certified mail, return receipt requested. Methodist submitted an affidavit from one of its attorneys, Dwight
W. Scott, Jr., who attested that he had mailed Methodist's objections to counsel for the Mitchells on the
evening of June 12, 2008 "before the midnight deadline" and that he "went to the main post office downtown
in Houston, Texas and placed into the United States Postal Service for delivery via first class mail, return
receipt requested . . . in a postpaid properly addressed envelope."
On August 6, 2008, the trial court granted Methodist's motion to dismiss the Mitchells' lawsuit. The order also
recited that Methodist should recover "all costs of Court" from the Mitchells.
The Mitchells filed a motion for new trial on September 5, 2008. Methodist filed a motion for entry of
judgment on October 9, 2008, asking that the trial court enter judgment in its favor for $19,955.20--the
amount Methodist's attorney attested in an attached affidavit was the amount of reasonable and necessary
attorney's fees Methodist had incurred in defending against the Mitchells' claims. On October 22, 2008, the
trial court awarded Methodist $9,977.60 as reasonable attorney's fees and costs of court. This appeal by the
On appeal, the Mitchells contend that the trial court erred by entertaining Methodist's objections to their
expert report and motion to dismiss under Chapter 74 because Methodist failed to timely serve its objections
to the Mitchells' expert report. The Mitchells also contend that the trial court erred by dismissing their claims
against Methodist on the grounds that their expert report was inadequate under Chapter 74 of the Texas
Civil Practice and Remedies Code. In the alternative, the Mitchells argue that they should have been granted
additional time to amend any deficiencies in the report. Finally, the Mitchells complain that the trial court
erred by awarding Methodist its attorney's fees.
I. Medical Expert Reports
A. Standard of Review
We review a trial court's ruling dismissing a healthcare liability lawsuit under Chapter 74 of the Texas Civil
Practice and Remedies Code under an abuse of discretion standard. Am. Transitional Care Centers v.
Palacios, 46 S.W.3d 873, 877 (Tex. 2001). A trial court abuses its discretion if it acts in an arbitrary or
unreasonable manner without reference to guiding rules or principles. See Garcia v. Martinez, 988 S.W.2d
219, 222 (Tex. 1999). When reviewing matters committed to the trial court's discretion, we may not substitute
our own judgment for that of the trial court. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A trial court
does not abuse its discretion merely because it decides a discretionary matter differently than an appellate
court would in a similar circumstance. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242
Although we may defer to the trial court's factual determinations, we review questions of law de novo. Rittmer
v. Garza, 65 S.W.3d 718, 722 (Tex. App.--Houston [14th Dist.] 2001, no pet.). To the extent resolution of the
issue before the trial court requires interpretation of the statute itself, we apply a de novo standard. Buck v.
Blum, 130 S.W.3d 285, 290 (Tex. App.--Houston [14th Dist.] 2004, no pet.).
In reviewing whether an expert report complies with Chapter 74, we evaluate whether the report "represents
a good-faith effort" to comply with the statute. Strom v. Mem'l Hermann Hosp. Sys., 110 S.W.3d 216, 221
(Tex. App.--Houston [1st Dist.] 2003, pet. denied). In making this evaluation, we must look only at the
information that is contained within the four corners of the report. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d
48, 53 (Tex. 2002).
B. Chapter 74 Expert Report Requirements
Pursuant to section 74.351, medical-malpractice plaintiffs must provide each defendant physician and health
care provider with an expert report or voluntarily nonsuit the action. Tex. Civ. Prac. & Rem. Code § 74.351(a)
(Vernon Supp. 2008). If a claimant timely furnishes an expert report, a defendant may file a motion
challenging the report's adequacy. Id. The trial court shall grant the motion only if it appears, after hearing,
that the report does not represent a good faith effort to comply with the statutory definition of an expert
report. See id. § 74.351(1). The statute defines an expert report as a written report by an expert that
provides, as to each defendant, a fair summary of the expert's opinions as of the date of the report
regarding: (1) applicable standards of care; (2) the manner in which the care provided failed to meet the
standards; and (3) the causal relationship between that failure and the injury, harm, or damages claimed.
See id. § 74.351(r)(6); Palacios, 46 S.W.3d at 877.
Although the report need not marshall all the plaintiff's proof, it must include the expert's opinions on the
three statutory elements--standard of care, breach, and causation. See Palacios, 46 S.W.3d at 878; Gray v.
CHCA Bayshore, L.P., 189 S.W.3d 855, 859 (Tex. App.--Houston [1st Dist.] 2006, no pet.). In detailing these
elements, the report must provide enough information to fulfill two purposes if it is to constitute a good faith
effort. First, the report must inform the defendant of the specific conduct the plaintiff has called into question.
Palacios, 46 S.W.3d at 879. Second, the report must provide a basis for the trial court to conclude that the
claims have merit. Id. A report that merely states the expert's conclusions as to the standard of care, breach,
and causation does not fulfill these two purposes. Id. "The expert must explain the basis for his statements
and link his conclusions to the facts." Bowie, 79 S.W.3d at 52 (citing Earle v. Ratliff, 998 S.W.2d 882, 890
(Tex. 1999)). Furthermore, in assessing the report's sufficiency, the trial court may not draw any inferences,
and instead must rely exclusively on the information contained within the report's four corners. See Palacios,
46 S.W.3d at 878.
C. Timeliness of Methodist's Objections
Section 74.351 requires that a defendant served with an expert report under Chapter 74 may object to the
sufficiency of the plaintiff's expert report, "not later than the 21st day after the date [the expert report] was
served." Tex. Civ. Prac. & Rem. Code § 74.351(a) (Vernon Supp. 2008). If a defendant does not file and
serve its objections within this 21-day time frame, "all objections are waived." Id.
The Mitchells argue that Methodist was served with the expert report on May 22, 2008, and that the deadline
for Methodist's objections under section 74.351 was June 12, 2008. The Mitchells contend that Methodist
missed the filing deadline by one day because their counsel received a faxed copy of the objections and
motion to dismiss on June 13, 2008. Methodist points out that it did timely file the objections and motion to
dismiss on June 12, 2008 with the Harris County District Clerk and that the document was mailed, that same
evening before midnight, with the United States Postal Service via certified mail, return receipt requested.
Methodist's certificate of service attached to the document in question recited that it was "served on all
counsel of record pursuant to Rule 21a, Texas Rules of Civil Procedure, on this the 12th day of June 2008."
Methodist also provided the affidavit of its counsel attached to its response to the Mitchells' contention that
its objections under section 74.351 were untimely, attesting to the facts surrounding the filing and mailing of
Methodist's objections to the Mitchells' expert report.
Under Rule 21a, if a pleading is properly addressed and mailed, postage prepaid, a presumption arises that
the pleading was properly received by the addressee. Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987).
The certificate of service of the party or attorney is the basis for the presumption. Cronen v. City of
Pasadena, 835 S.W.2d 206, 209 (Tex. App.--Houston [1 st Dist.] 1992, no writ). Service by mail is complete
upon deposit of the document, enclosed in a postpaid, properly addressed wrapper, in a post office or
official depository under the care and custody of the United States Postal Service. Tex. R. Civ. P. 21a. The
record before us contains a certificate of service on the objections and motion to dismiss stating that the
document was served pursuant to Rule 21a upon all counsel of record. Although it did not mention the
method of service, "Rule 21a does not require that a certificate of service detail the method of service used."
Approximately $14,980.00 v. State, 261 S.W.3d 182, 189 (Tex. App.--Houston [14th Dist.] 2008, no pet.).
A certificate by a party or an attorney of record is prima facie evidence of the fact of service. Miller v.
Prosperity Bank, N.A., 239 S.W.3d 440, 442 (Tex. App.--Dallas 2007, no pet.). As noted by the Texas
Supreme Court, "notice properly sent pursuant to Rule 21a raises a presumption that notice was received."
Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005). However, the opposing party may rebut this
presumption by offering proof that the notice or document was not received. Cliff, 724 S.W.2d at 780; see
also Tex. R. Civ. P. 21a ("Nothing [in Rule 21a] shall preclude any party from offering proof that the notice or
instrument was not received. . . ."). The presumption may be rebutted by an offer of proof of nonreceipt. Id.;
Approximately $14,980.00, 261 S.W.3d at 189 (returned envelope bearing United States Post Office
"unclaimed" mark deemed sufficient to rebut presumption of service).
The record before us, however, does not contain any evidence of the Mitchells' counsel non-receipt of the
mailed copy of the objections, and the Mitchells have not disputed the validity of Methodist's certificate of
service, i.e., that the objections were mailed to their counsel on June 12, 2008. See Graham-Rutledge & Co.,
Inc. v. Nadia
Corp., 281 S.W.3d 683, 691 (Tex. App.--Dallas 2009, no pet.) (where party failed to provide offer of proof as
to non-receipt of notice of hearing, proper service pursuant to certificate of service was presumed). Instead,
the Mitchells continue to point to the faxed copy of the objections received on June 13, 2008. However, the
fact that Methodist may have faxed a second copy of its objections on June 13 does not mean that it did not
mail an earlier copy the day before. This document, standing by itself, is not sufficient to rebut the
presumption raised by the certificate of service.
Finally, we note that Methodist's response to the Mitchells' complaints regarding the timeliness of its
objections and motion to dismiss provided the uncontroverted affidavit of Methodist's attorney, testifying that
he personally mailed the document in question on June 12, 2008 via certified mail, return receipt requested.
Even if the Mitchells' bare allegations were sufficient to rebut the presumption of timely service raised by the
certificate of service, this affidavit would have sufficed to carry Methodist's burden to show that the document
was, in fact, timely mailed to the Mitchells on June 12, 2008. Under these facts, we overrule the Mitchells' first
issue and hold that the trial court did not err by considering Methodist's objections and motion to dismiss
pursuant to Chapter 74.
1. Adequacy of the Mitchells' Expert Report
The Mitchells submitted an expert report authored by Dr. Carl M. Berkowitz, M.D., a board certified specialist
in Internal Medicine and Infectious Diseases. Methodist objected to Dr. Berkowitz's report on the grounds
that it failed to provide a fair summary of the standard of care for any of the defendants, and because Dr.
Berkowitz's opinions were "wholly conclusory and based on mere conjecture and assumptions that are
contrary to the medical record and fact," were not tied to any particular defendant, and failed to provide a
fair summary of how the alleged breaches of the standard of care proximately caused Mr. Mitchell's injuries.
On appeal, the Mitchells contend the trial court committed an abuse of discretion by sustaining Methodist's
objections and dismissing their lawsuit. The Mitchells argue that Dr. Berkowitz's report was at least a "good
faith" attempt to meet the statutory requirements and that the trial court should not have dismissed their suit.
The Mitchells also contend that, because they alleged that Methodist is vicariously liable, the report did not
need to set out the required standard of care for each defendant employee of Methodist and how that
employee breached the applicable standard of care. The Mitchells further alleged that Dr. Berkowitz's report
adequately laid out the standard of care, breaches and resulting harm caused by Methodist's acts and
1. Dr. Berkowitz's Report
Dr. Berkowitz's report stated, in relevant part, as follows:
Applicable Standards of Care
It is the standard of care to have a policy in place for the management of a peripheral intravenous catheter.
While these policies may vary from place to place they must all include observation and documentation of
the appearance of the peripheral IV site. Redness, tenderness and swelling must all be documented if
present. This is done in order to decrease the incidence of IV site complications, such as infection or
phlebitis. In addition there must be documentation of the removal of a peripheral IV especially if it is removed
due to erythema, tenderness or other abnormalities of the site.
If abnormalities are found at the site of the IV it must be removed immediately. The findings must be
documented and a physician must be notified in order that appropriate evaluation and treatment be started.
Violation of Standards of Care
There is no indication of the examination of the peripheral IV site in the nursing notes. When the IV site
appearance is documented it is always stated that the dressing is dry and intact and that the site is covered.
This implies that the IV site could not be specifically examined. This would be a violation of the standard of
Despite the statement of the wife of Mr. Mitchell that the IV was causing pain and tenderness, there is no
such documentation in the chart. This would be a violation of the standard of care.
There is no documentation that a physician was ever notified about any abnormalities of the IV site. This was
a violation of the standard of care.
. . . .
In the case of Mr. Frank Mitchell, we have the statement of his wife that the IV was painful and swollen on
11/29/05. The IV was removed but not for a number of hours. There was no documentation of these
problems. No physician was notified and thus observation of the site for progressive signs of infection could
not be done. This caused the loss of an opportunity to intervene with local care, antibiotics or surgery. This
could have ameliorated or avoided the septic thrombophlebitis and pulmonary abscesses. In my opinion, had
appropriate treatment been administered, STP might not have occurred. Had STP developed, and treatment
been started on 11/29/05, 11/30/05 or even 12/1/05 he more likely than not would have survived.
In the case of Mr. Frank Mitchell we have a case of septic thrombophlebitis in an area of a known prior IV site
and we have MRSA as the causative organism. This implicates the peripheral IV that was placed during the
first hospitalization as the cause of the STP. The STP resulted in MRSA bacteremia which led to pneumonia
and lung abscesses. These processes lead to ongoing sepsis and intractable respiratory failure. This cased
the ultimate demise of Mr. Frank Mitchell.
2. Sufficiency as to Individual Defendants
Section 74.351 requires that the expert report supporting a health care liability claim detail the fault of each
healthcare provider against whom a claim is brought. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). "If a
plaintiff does not timely serve an expert report as to a particular defendant, the trial court has no discretion
to do anything other than dismiss the case with prejudice." Rivenes v. Holden, 257 S.W.3d 332, 336 (Tex.
App--Houston [14th Dist.] 2008, pet. denied). Dr. Berkowitz's report does not name any hospital staff,
including the named defendants Rosie Young, Melissa Abbot, Denise M. Stuckey, or Bernice Onyenuzi, or
specify any standard of care for any defendant other than Methodist itself. Accordingly, we hold Dr.
Berkowitz's report is not a sufficient expert report as to these individuals, and the trial court did not abuse its
discretion by dismissing the Mitchells' claims against them. Id. at 338 (where expert report did not name
physician except by general reference to "emergency room" or "emergency room staff" and offered no
opinions as to his specific conduct, trial court did not abuse discretion by dismissing claim against him).
1. Sufficiency as to Methodist
As to Methodist itself, the Mitchells contend that Dr. Berkowitz's report adequately details its failures to
support their claim for vicarious liability. We disagree.
In vicarious liability claim against a hospital for the failure of its employees to adhere to a standard of care, "a
report that adequately implicates the actions of that party's agents or employees is sufficient." Gardner v.
U.S. Imaging, 274 S.W.3d 669, 671-72 (Tex. 2008) (where plaintiffs alleged only vicarious liability against
facility, expert report requirement was fulfilled as to facility if report was adequate as to employee physician).
However, as we noted above, the report is not sufficient as to the individual named employees because it
does not state either an applicable standard of care for those employees, nor does it state how they
breached that standard. Instead, the only standard of care stated in Dr. Berkowitz's report is that a policy for
IV management should be in place, presumably at Methodist, that abnormalities at the IV insertion site
should be documented, presumably by some unspecified Methodist employee, that removal of an IV should
be documented, and that, if abnormalities are found at an IV insertion site, the IV should be removed
immediately and a physician notified. The report does not state that Methodist did not have an IV policy in
place, that abnormalities were seen but were not documented, or that abnormalities were seen but a
physician was not notified.
All of Dr. Berkowitz's conclusions in his report are based upon his assumption that Mr. Mitchell displayed
signs of redness or swelling at the IV site and that Methodist employees either failed to look for such
symptoms or saw such symptoms and failed to document them and notify physicians. None of these
assumptions can be supported by the report itself. Dr. Berkowitz's only reference to any symptoms at the IV
insertion site is that, according to Mr. Mitchell's wife, Mr. Mitchell asked that the IV be removed due to "pain
and swelling" and that the IV was removed some hours later. Dr. Berkowitz's report does not explain how
Methodist should have reacted to this report of "pain and swelling" and how its failure to act in any particular
manner could be related to the standard of care he sets out for Methodist. "Conclusory statements regarding
standard of care, breach, or causation, do not constitute a good faith effort to comply with section 74.351 in
that they fail to adequately inform each defendant of the specific conduct called into question by the
plaintiff's claims." Gray ,189 S.W.3d at 859 (citing Palacios, 46 S.W.3d at 879). Further, whether a defendant
breached the standard of care due a patient cannot be determined without "specific information about what
the defendant should have done differently." Id. (citing Palacios, 46 S.W.3d at 880). Reviewing Dr.
Berkowitz's report, we hold that the trial court did not abuse its discretion in dismissing the Mitchells' claims
against Methodist on the grounds that Dr. Berkowitz's report was not sufficient to satisfy Chapter 74.
4. Opportunity to Amend Expert Report
Finally, we address the Mitchells' contention that the trial court should have afforded them an opportunity to
amend Dr. Berkowitz's report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) ("If an expert report has
not been served within the period specified . . . because elements of the report are found deficient, the court
may grant one thirty-day extension to the claimant in order to cure the deficiency.") (emphasis added). The
decision whether to allow an such an extension when requested by plaintiffs is committed to the discretion of
the trial court. Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex. 2007).
On appeal, the Mitchells claim that they should be allowed the opportunity to amend Dr. Berkowitz's report.
We disagree. Although the statute allows the trial court to grant a 30-day extension to allow plaintiffs to
supplement or amend an expert report the court has found deficient, the statute does not require that the
court grant such an extension. In this case, given the extreme deficiencies of Dr. Berkowitz's expert report,
we cannot say that the trial court abused its discretion by failing to grant the Mitchells a 30-day extension to
amend or supplement his expert report.
II. Attorney's Fees
The Mitchells also argue that the trial court erred by awarding Methodist attorney's fees and costs. The
Mitchells contend the trial court's plenary power had expired by the time it entered the order, that the award
of attorney's fees in a healthcare liability lawsuit is improper when a plaintiff has timely filed its expert report,
and the amount of fees is not supported by the evidence.
1. Plenary Power of the Trial Court
The Mitchells contend that the trial court's plenary power had expired by the time it entered its order
awarding Methodist $ 9,977.60 in attorney's fees. The Mitchells overlook the fact that they filed a motion for
new trial. The Texas Rules of Civil Procedure are clear--a motion for new trial extends the plenary power of a
trial court. See, e.g., Tex. R. Civ. P. 329b(c)(motions for new trial that are not ruled upon shall be considered
overruled by operation of law after seventy-five days); Tex. R. Civ. P. 329b(e) (when a timely motion for new
trial is filed, trial court retains plenary power over judgment for thirty days after all such timely-filed motions
are overruled, "either by written and signed order or by operation of law, whichever occurs first."). In this
case, the Mitchells filed a motion for new trial on September 5, 2008. Because this motion was overruled by
operation of law, the trial court did not lose plenary power over its judgment until November 19, 2008--one
hundred and five days after the Mitchells' motion for new trial was filed. Tex. R. Civ. P. 329b (c), (e). The trial
court's October 22, 2008 award of attorney's fees was within this deadline. Accordingly, we hold that the trial
court did not lack plenary power to enter the award of attorney's fees.
1. Attorney's Fees under Chapter 74
The Mitchells contend that the trial court erred by awarding Methodist its attorneys fees under Chapter 74
because they timely filed an expert report supporting their healthcare liability claims. Methodist responds by
pointing us to caselaw that fatally deficient reports--such as Dr. Berkowitz's in this case--are essentially the
same as no report at all, and that such deficient reports may support an award to the healthcare defendants
for attorneys fees. See, e.g., Bogar v. Esparza, 257 S.W.3d 354, 373 (Tex. App.--Austin 2008, no pet.);
Rivenes v. Holden, 257 S.W.3d 332 (Tex. App.--Houston [14th Dist.] 2008, pet. denied); Fox v. Hinderliter,
222 S.W.3d 154, 160 (Tex. App.--San Antonio 2006, pet. stricken).
The Texas Supreme Court has plainly stated that a plaintiff who fails to file a timely and sufficient report is
subject to paying a healthcare defendant's attorney's fees should the defendant move to dismiss the
plaintiff's claims under Chapter 74. Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex. 2009) ("If a timely and
sufficient report is not served, the trial court must award the provider its attorney's fees and costs and
dismiss the case with prejudice.") (citing Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)) (emphasis added).
Accordingly, given the deficiencies noted above, we hold that the trial court did not abuse its discretion by
awarding attorney's fees to Methodist.
1. Amount of Attorney's Fees
Finally, the Mitchells contend that the amount of attorney's fees awarded to Methodist was unreasonable and
not supported by the evidence submitted. (1)
The Mitchells complain that Methodist failed to submit "testimony" regarding the amount of attorney's fees it
had incurred, and whether that amount was reasonable and necessary.
1. Standard of Review
We review a trial court's decision to either grant or deny attorney's fees under an abuse-of-discretion
standard, and we review the amount of attorney's fees awarded under a legal-sufficiency standard. See
Ridge Oil Co., Inc. v. Guinn Invs., Inc., 148 S.W.3d 143, 163 (Tex. 2004); Aaron Rents, Inc. v. Travis Cent.
Appraisal Dist., 212 S.W.3d 665, 671 (Tex. App.--Austin 2006, no pet.). Because we review the amount of
attorney's fees awarded under a legal-sufficiency review, we must view the evidence in a light that tends to
support the disputed finding and disregard evidence and inferences to the contrary. Wal-Mart Stores, Inc. v.
Canchola, 121 S.W.3d 735, 739 (Tex. 2003). If more than a scintilla of evidence supports the challenged
finding, the legal-sufficiency challenge must fail. Id
2. Evidence Submitted
Regarding the amount of attorney's fees the trial court awarded, there are several factors a fact finder
should consider in determining the reasonableness of a fee. Arthur Andersen & Co. v. Perry Equip. Corp.,
945 S.W.2d 812, 818 (Tex. 1997). These factors include: (1) the time and labor required, the novelty and
difficulty of the questions involved, and the skill required to perform the legal service properly; (2) the
likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; (3)
the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results
obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of
the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or
lawyers performing the services; and (8) whether the fee is fixed or contingent on results obtained or
uncertainty of collection before the legal services have been rendered. Id.
Methodist submitted testimony of its counsel, via affidavit, regarding the amount of fees it had incurred in its
defense of the case, and opining that the amounts incurred were reasonable and necessary. Specifically,
Dwight W. Scott Jr., Methodist's counsel in the trial court, affirmed that he was qualified to opine on the legal
fees charged in the case in light of the fact that he had been licensed since 2000 and was familiar with fees
charged for cases of this type and complexity. Scott's affidavit stated that the legal fees incurred during
various actions--including reviewing pleadings, medical records and related documents; investigating the
Mitchells' complaints against the numerous defendants; compiling the facts surrounding Mr. Mitchell's
medical treatment; preparing responsive pleadings; retaining experts; conducting "numerous" interviews; and
preparing and presenting Methodist's objections and motion to dismiss--amounted to $19,925.20. In his
affidavit, Scott opined that the amount was reasonable and necessary in light of the eight Anderson factors,
which he laid out in the affidavit. 945 S.W.2d at 818. Scott also stated that none of the fees incurred related
to discovery in the case.
The Mitchells filed a controverting affidavit by their attorney, and contended that the sum sought by
Methodist was unreasonable in light of the fact that no discovery had yet occurred in the case. The record
does not reflect, however, that the Mitchells filed or obtained a ruling upon any objections to the sufficiency
of Scott's affidavit.
The trial court awarded $ 9,977.60--an amount approximately half of the total attorney's fees sought by
Methodist. Because Scott's affidavit is some evidence supporting the reasonableness of the award of
attorney's fees, we conclude that there is more than a scintilla of evidence to support the amount of the
award. Accordingly, the trial court did not abuse its discretion by awarding $ 9,977.60 in attorney's fees to
We overrule the Mitchells' issues on appeal and affirm the judgment of the trial court.
George C. Hanks, Jr.
Panel consists of Justices Keyes, Alcala and Hanks
1. In addition, the Mitchells appear to question the constitutionality of the award of attorney's fees. Because
the Mitchells do not provide any argument or citations to argue the constitutionality of the award, we hold
that this issue has been waived. See Tex. R. Civ. P. 38.1(i).