law-HCLC-attorneys-fees | sanctions in med-mal suit in the form of attorney's fees |


Attorneys' fees and costs of court are mandatory under the Act when a health care liability claimant
fails to file an expert report. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(1). Nevertheless,
nothing in the Act modifies the general rule that a party seeking attorneys' fees must present
evidence of attorneys' fees. See Tibbetts v. Gagliardi, 2 S.W.3d 659, 665 (Tex. App.-Houston [14th
Dist.] 1999, pet. denied) (stating same with regard to prior act).

We review a trial court's award of attorneys' fees under the Act for an abuse of discretion. See
Sandles v. Howerton, 163 S.W.3d 829, 838 (Tex. App.-Dallas 2005, no pet.) (applying abuse of
discretion standard under prior act). Under an abuse of discretion standard, legal and factual
insufficiency issues are not independent grounds of error but are relevant factors in assessing
whether the trial court abused its discretion. See Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223,
226 (Tex. 1991).

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.
Mitchell v. The Methodist Hospital (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Hanks)
medical malpractice suit, adequacy of expert report, attorney's fees in HCLC suit) (presumption of proper
service, receipt of mail)
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    

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