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

HOUSTON CASE LAW ON THIS LEGAL CONCEPT

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 Methodist.


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