Send this document to a
colleague

Close
This Window

NUMBER 13-04-524-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

ROBERT
C. RENAUD,
Appellant,

v.

CHRISTUS
SPOHN HEALTH SYSTEM

CORPORATION
D/B/A CHRISTUS SPOHN

HOSPITAL
SHORELINE AND FRED

PURNELL
THOMAS, JR., M.D.,
Appellees.

On appeal from the 319th District
Court

of Nueces County, Texas.

___________________________________________________
_______________

MEMORANDUM OPINION[1]

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Rodriguez

This appeal
arises from the trial court's dismissal of a medical malpractice claim
brought by appellant, Robert C. Renaud (Renaud), against appellees,
Christus Spohn Health System Corporation d/b/a Christus Spohn Hospital
Shoreline (Spohn Hospital) and Fred Purnell Thomas, Jr., M.D. (Dr.
Thomas).  By two issues,
appellant contends the trial court (1) abused its discretion by denying
his motion to extend time to file a supplemental expert report and
granting appellees' motions to dismiss and (2) erred in denying his motion
to strike portions of the affidavit of Andrew Lehrman.  We reverse and
remand.

I.
Background

Appellant
underwent a femoral-popliteal bypass graft, which was performed by Dr.
Thomas at Spohn Hospital.
Following the surgery, an infection developed in the graft
site.  Dr. Thomas performed
additional surgical procedures to treat appellant's wound.  Appellant then sought a second
opinion regarding his medical condition and was transferred to St. Luke's
Episcopal Hospital in Houston, Texas, where he received additional
treatment.

Appellant
filed the underlying malpractice suit against Dr. Thomas and Spohn
Hospital alleging medical negligence.  In his petition, appellant alleged
that Spohn Hospital failed to (1) properly assess his condition and (2)
properly treat him before the ligation of his femoral artery.  Appellant also alleged that Dr.
Thomas failed to (1) adequately assess his condition prior to ordering the
ligation of his femoral artery, (2) inform him of any alternatives prior
to the ligation of his femoral artery, and (3) provide adequate and timely
medical care.

Pursuant to
section 13.01(d) of the Medical Liability and Insurance Improvement Act
(the Act), appellant filed an expert report prepared by Michael M.
Bergman, M.D.  See Act
approved June 10, 2003, 73rd Leg., R.S., ch. 625, ' 3, sec.
13.01, 1993 Tex. Gen. Laws 2347, 2347-49, amended by Act approved
May 18, 1995, 74th Leg., R.S., ch. 140, ' 1, sec.
13.01, 1995 Tex. Gen. Laws 985, 985-87, repealed by Act approved
June 11, 2003, 78th Leg., R.S., ch. 204, ' 10.09, 2003
Tex. Gen. Laws 847, 884.[2]  Alleging that the expert report
was inadequate and that it failed to comply with the requirements of
section 13.01 of the Act, each appellee moved to dismiss the suit.  See id.  In response, appellant filed a
motion to extend time to file a supplemental expert report, supported by
the affidavit of his counsel, Les Mendelsohn.  Dr. Thomas then filed an amended
motion to dismiss and a response to appellant's motion for extension of
time, in which Spohn Hospital joined.  Included in Dr. Thomas's response
was the affidavit of his counsel, Andrew Lehrman, which sought to
controvert the affidavit of appellant's counsel.  Appellant filed a motion to strike
portions of Lehrman's affidavit.
After a hearing on the motions, the trial court granted appellees'
motions to dismiss the suit and denied appellant's motion for extension of
time and motion to strike.

II.  Denial of Motion to Extend
Time

By his first
issue, appellant contends the trial court abused its discretion by denying
his motion to extend time to file a supplemental expert report and
granting appellees' motions to dismiss.

A.  Standard of
Review

We review (1)
a trial court's denial of a motion for extension of time filed pursuant to
section 13.01(g) and (2) a trial court's dismissal of a medical
malpractice claim for failure to comply with expert report requirements of
section 13.01 under an abuse of discretion standard.  Walker v. Gutierrez, 111
S.W.3d 56, 61-63 (Tex. 2003).
A trial court abuses its discretion when it acts arbitrarily or
unreasonably, without reference to guiding rules or principles.  Bowie Mem'l Hosp. v.
Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam) (citing Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).  A trial court does not abuse its
discretion simply because it may decide a matter within its discretion
differently than an appellate court.
Moore v. Sutherland, 107 S.W.3d 786, 789 (Tex.
App.BTexarkana
2003, pet. denied) (citing Downer, 701 S.W.2d at 242).

B.  The Law

Section
13.01(d) of the Act requires a plaintiff in a medical malpractice action,
not later than 180 days after suit is filed, to (1) furnish each defendant
physician or health care provider an expert report and the expert's
curriculum vitae, or (2) voluntarily nonsuit the action against the
physician or health care provider.
See Act approved June 10, 2003, 73rd Leg., R.S., ch. 625,
' 3, sec.
13.01, 1993 Tex. Gen. Laws 2347, 2347-49 (repealed 2003); Am.
Transitional Care Ctr. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877
(Tex. 2001); Tesch v. Stroud, 28 S.W.3d 782, 784 (Tex.
App.BCorpus Christi
2000, pet. denied).  If a
plaintiff timely furnishes an expert report and curriculum vitae, a
defendant may move to challenge the adequacy of the report, and the trial
court must grant the motion, pursuant to section 13.01(l), if "it appears
to the court . . . that the report does not represent a good faith effort
to comply with the definition of an expert report."  See Act approved June 10,
2003, 73rd Leg., R.S., ch. 625, ' 3, sec.
13.01, 1993 Tex. Gen. Laws 2347, 2347-49 (repealed 2003); Am.
Transitional Care Ctr. of Tex., Inc., 46 S.W.3d at 877; De Leon v.
Vela, 70 S.W.3d 194, 197 (Tex. App.BSan Antonio
2001, pet. denied).  Section
13.01(r)(6) of the Act defines an expert report as
follows:

a written
report by an expert that provides a fair summary of the expert's opinions
as of the date of the report 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.

See
Act approved
June 10, 2003, 73rd Leg., R.S., ch. 625, ' 3, sec.
13.01, 1993 Tex. Gen. Laws 2347, 2347-49 (repealed 2003); Am.
Transitional Care Ctr. of Tex., Inc., 46 S.W.3d at 877; De
Leon, 70 S.W.3d at 197-98; Tesch, 28 S.W.3d at 784.  Furthermore, if the trial court
determines that an expert report does not meet these statutory
requirements and the time for filing an expert report has passed, it must
dismiss with prejudice the claims against the defendant who has challenged
the report, see Act approved June 10, 2003, 73rd Leg., R.S., ch.
625, ' 3, sec.
13.01, 1993 Tex. Gen. Laws 2347, 2347-49 (repealed 2003); Am.
Transitional Care Ctr. of Tex., Inc., 46 S.W.3d at 877; De
Leon, 70 S.W.3d at 198, unless the plaintiff is entitled to a
thirty-day grace period pursuant to section 13.01(g).  See Walker, 111 S.W.3d at
61-62 (providing that a party who files a timely but inadequate expert
report may seek relief under the grace period provisions of section
13.01(g)).  Section 13.01(g)
reads in pertinent part as follows:

Notwithstanding
any other provision of this section, if . . . after hearing the court
finds that the failure of the claimant or the claimant's attorney was not
intentional or the result of conscious indifference but was the result of
an accident or mistake, the court shall grant a grace period of 30 days to
permit the claimant to comply . . . .

See
Act approved
June 10, 2003, 73rd Leg., R.S., ch. 625, ' 3, sec.
13.01, 1993 Tex. Gen. Laws 2347, 2347-49 (repealed 2003).  Therefore, if a trial court
determines that a timely filed expert report is inadequate, it must grant
a plaintiff thirty days to cure the defect if the plaintiff establishes
that the failure to furnish an adequate report was the result of accident
or mistake.  See id.;
Walker, 111 S.W.3d at 61-62.

In determining
whether the failure to file an adequate report was due to accident or
mistake rather than to intentional disregard or conscious indifference, we
must look to the knowledge and acts of the claimant.  Walker, 111 S.W.3d at 64
(citing Strackbein v. Prewitt, 671 S.W.2d 37, 39 (Tex. 1984));
Tesch, 28 S.W.3d at 787.
"Some excuse, but not necessarily a good excuse, is enough to
warrant an extension of time to file an expert report, as long as the act
or omission causing the failure to file the report was in fact
accidental."  Tesch, 28
S.W.3d at 787 (citing Finley v. Steenkamp, 19 S.W.3d 533, 539 (Tex.
App.BFort Worth
2000, no pet.); Horsley-Layman v. Angeles, 968 S.W.2d 533, 536
(Tex. App.BTexarkana
1998, no pet.)).  The burden
is on the plaintiff to show some evidence of accident or mistake to
demonstrate he did not act intentionally or with conscious
indifference.  De Leon,
70 S.W.3d at 200; Tesch, 28 S.W.3d at 787.  If the plaintiff establishes such
evidence, the burden shifts to the defendant to controvert the plaintiff's
evidence of accident or mistake; otherwise, an issue of mistake exists and
an extension of time must be granted.  Tesch, 28 S.W.3d at 787
(citing Finley, 19 S.W.3d at 539; Schorp v. Baptist Mem'l Health
Sys., 5 S.W.3d 727, 732 (Tex. App.BSan Antonio
1999, no pet.)).

C.  Analysis

By his first
issue, appellant contends the trial court abused its discretion by denying
his motion to extend time to file a supplemental expert report and
granting appellees' motions to dismiss.  More specifically, appellant
asserts that he demonstrated that his failure to file an adequate expert
report was due to accident or mistake rather than to intentional disregard
or conscious indifference.  We
agree.

The expert
report prepared by Dr. Bergman, a board certified internal medicine
specialist and infectious disease subspecialist, included the following
statements:

Whether Mr.
Renaud should have underwent an extra-anatomic bypass procedure earlier in
his course while at Spohn's Hospital or whether any additional
Vascular/Surgical interventions including a follow-up angiogram should
have been done while at Spohn's Hospital are questions better answered by
a Vascular Surgeon. . . .

It is also my
opinion that a Vascular Surgical expert should be obtained as I defer any
comment relating to the technical, non-Infectious Disease aspects of this
complex case to the appropriate specialist involved.[3]

The expert
report was dated Friday, February 27, 2004, and the deadline for appellant
to furnish a copy of the expert report to appellees was Monday, March 1,
2004.

Based in part
on these statements, appellees challenged the adequacy of the expert
report and filed motions to dismiss the suit.  In response, appellant timely
filed a motion for extension of time to file a supplemental expert report
pursuant to section 13.01(g).[4]  See Act approved June 10,
2003, 73rd Leg., R.S., ch. 625, ' 3, sec.
13.01, 1993 Tex. Gen. Laws 2347, 2347-49 (repealed 2003).  Therefore, even assuming, without
determining, that the trial court found the expert report to be
inadequate, the Act mandated that the trial court grant appellant a
thirty-day extension to file a supplemental expert report if appellant
established that his failure to file an adequate report in the first
instance was due to accident or mistake.  See id.; Walker, 111
S.W.3d at 61-62.  The burden
was on appellant to show some evidence of accident or mistake to entitle
him to a thirty-day extension to file a supplemental report.  De Leon, 70 S.W.3d at 200;
Tesch, 28 S.W.3d at 787.
To establish such evidence, appellant filed the affidavit of
Mendelsohn, his counsel.  In
his affidavit, Mendelsohn stated the following:

I had reviewed
the medical records in the case . . . and had determined that a physician
specializing in infectious disease and/or internal medicine would be the
appropriate expert to review this file.  With that in mind, I retained
Michael M. Bergman, M.D. . . . to review the medical records in the case
and to render an opinion as to the negligence, if any, committed by the
named defendants herein. . . .

Based upon my
review of the report . . . I also saw that Dr. Bergman recommended that a
different specialist, a Vascular Surgeon, review the medical records to
determine whether or not the care provided to Mr. Renaud fell below the
applicable standard of care from the perspective of a vascular
surgeon.  Unfortunately, I was
unable to provide the medical records to such a specialist, and receive a
report from same, because the deadline for filing the expert report was
imminent.  Under the
circumstances, I did not have any additional time to obtain this
supplemental report.

My failure to
file a report from a vascular surgeon was not intentional or the result of
conscious indifference, but instead represented my mistaken belief that,
based upon my review of the medical records, the appropriate specialist
was an infectious disease and/or internal medicine specialist.  If I had believed that a vascular
surgeon was the appropriate specialist to review these records, I would
have retained same prior to the running of the 180-day deadline and had a
report [prepared] based upon that specialist's review of the
records.

I want to
reiterate that my failure to file the required documents was not
intentional or the result of conscious indifference, since I had no
knowledge until the eve of the deadline that I would require the services
of a vascular surgeon.

Based on this
evidence, we conclude that Mendelsohn's "mistaken belief that . . . the
appropriate specialist was an infectious disease and/or internal medicine
specialist" does not constitute intentional disregard or conscious
indifference, but instead establishes evidence of a mistake that led to
the filing of an inadequate expert report.  See Act approved June 10,
2003, 73rd Leg., R.S., ch. 625, ' 3, sec.
13.01, 1993 Tex. Gen. Laws 2347, 2347-49 (repealed 2003); De
Leon, 70 S.W.3d at 200; Tesch, 28 S.W.3d at 787.  Mendelsohn's mistaken belief led
him to seek an expert report from a physician specializing in internal
medicine and infectious disease only, instead of also seeking an expert
report from a physician qualified to opine on the "technical,
non-infectious disease" aspects of the case.  This mistake constitutes some
excuse for appellant's failure to file an adequate expert report.  See Tesch, 28 S.W.3d at 787
(citing Finley, 19 S.W.3d at 539; Horsley-Layman, 968 S.W.2d
at 536).

Because
appellant established that his failure to file an adequate expert report
was due to a mistake, the burden shifted to appellees to controvert
appellant's evidence of mistake.
Tesch, 28 S.W.3d at 787 (citing Finley, 19 S.W.3d at
539; Schorp, 5 S.W.3d at 732).  In an attempt to controvert
appellant's evidence of mistake, Andrew Lehrman, counsel for Dr. Thomas,
filed an affidavit, which stated the
following:

Plaintiff
apparently consulted an infectious disease/internal medicine specialist
who, in the undersign's opinion, would have communicated prior to the
preparation of the report that he is not qualified to render opinions on
issues relating to a vascular surgeon and that such information would have
been known prior to the preparation of this report and/or prior to the
production of this report.

Therefore, it
would appear that Plaintiff had adequate time to seek out the opinions of
a vascular surgeon prior to the final report being reduced to writing and
produced by Plaintiff's attorney.

Plaintiff
fails to offer any evidence in its Response and Affidavit that there was
insufficient time prior to learning from Dr. Bergman of the need to get a
vascular surgeon to obtain the review of the medical records by a vascular
surgeon prior to the deadline for production of expert
reports.

We conclude
that Lerhman's affidavit fails to controvert appellant's evidence of
mistake.  While Lerhman's
affidavit sets out his general opinions (1) about what an expert "would
have communicated" to Mendelsohn prior to the preparation of the report
and (2) that it "would appear that Plaintiff had adequate time to seek out
the opinions of a vascular surgeon prior to the final report being reduced
to writing," it does not controvert the specific evidence of mistake
established by Mendelsohn's affidavit in this case.

Because
appellees failed to controvert appellant's evidence of mistake, an issue
of mistake existed, Tesch, 28 S.W.3d at 787 (citing Finley,
19 S.W.3d at 539; Schorp, 5 S.W.3d at 732), and the trial court was
required to grant appellant a thirty-day extension to file a supplemental
expert report.  See Act
approved June 10, 2003, 73rd Leg., R.S., ch. 625, ' 3, sec.
13.01, 1993 Tex. Gen. Laws 2347, 2347-49 (repealed 2003);
Walker, 111 S.W.3d at 61-62.
Therefore, we conclude that the trial court abused its discretion
in dismissing the underlying suit and in denying appellant's motion for
extension of time.  We sustain
appellant's first issue.

III.  Denial of Motion to
Strike

Through his
second issue, appellant contends the trial court erred by denying his
motion to strike portions of the affidavit of Andrew Lehrman.  We, however, decline to address
appellant's second issue as it is not dispositive of this appeal in light
of our disposition of appellant's first issue.  See Tex. R. App. P. 47.1.

IV.
Conclusion

Accordingly,
we reverse the judgment of the trial court and remand the cause for
further proceedings consistent with this opinion.

NELDA V.
RODRIGUEZ

Justice

Memorandum
Opinion delivered and

filed this
20th day of April, 2006.

[1]All issues of law presented
by this case are well-settled, and the parties are familiar with the
facts.  Therefore, we will not
recite the law or the facts except as necessary to advise the parties of
the Court's decision and the basic reasons for it.  See Tex. R. App. P. 47.4.

[2]Article 4590i of the Texas
Revised Civil Statutes, which contained section 13.01 of the Medical
Liability and Insurance Improvement Act, was repealed in 2003.  See Act approved June 11,
2003, 78th Leg., R.S., ch. 204, ' 10.09, 2003 Tex. Gen. Laws
847, 884.  Because the
underlying suit was filed prior to September 1, 2003, the effective date
of the repeal, we apply the version of former section 13.01 that went into
effect on September 1, 1995.
See id.

[3]Although Dr. Bergman states
that certain questions are better answered by a vascular surgeon, we do
not determine on appeal whether a vascular surgeon is in fact required to
opine on the "technical, non-infectious disease" aspects of this
case.

[4]Appellees suggest that
appellant's motion to extend time to file a supplemental expert report was
not timely filed.  However,
section 13.01(g) states the following:  "a motion by a claimant for relief
under this subsection shall be considered timely if it is filed before any
hearing on a motion by defendant" to dismiss the suit based on the
inadequacy or non-compliance of an expert report.  See Act approved June 10,
2003, 73rd Leg., R.S., ch. 625, ' 3, sec. 13.01, 1993 Tex.
Gen. Laws 2347, 2347-49, amended by Act approved May 18, 1995, 74th
Leg., R.S., ch. 140, ' 1, sec. 13.01, 1995 Tex.
Gen. Laws 985, 985-87, repealed by Act approved June 11, 2003, 78th
Leg., R.S., ch. 204, ' 10.09, 2003 Tex. Gen. Laws
847, 884.  Because appellant
filed his motion for extension of time prior to the hearing on appellees'
motions to dismiss, appellant's motion was timely filed.  See
id.