Hawkins, MD v. Herrera (Tex.App.- Houston [14th Dist.] Sep. 22, 2009)(Sullivan)
(interlocutory appeal of denial of motion to dismiss in med-mal suit;
failure to preserve error by obtaining a ruling from the trial court)
AFFIRMED: Opinion by Justice Kent Sullivan
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-09-00142-CV Kimberly Hawkins, M.D. v. Alberto and Amy Herrera as next friends of Tiana Herrera,
A Minor
Appeal from 80th District Court of Harris County
Trial Court Judge: Larry Weiman
O P I N I O N
Appellant, Kimberly Hawkins, M.D., the defendant in a medical-malpractice lawsuit, was served with four
expert reports critical of her medical care of Amy Herrera and Tiana Herrera. See Tex. Civ. Prac. & Rem.
Code Ann. § 74.351(a) (Vernon 2005 & Supp. 2008).
In this interlocutory appeal, Hawkins contends the trial court abused its discretion by denying her motion to
dismiss the suit. See id. § 51.014(a)(9) (Vernon 2008). Here, she argues that, notwithstanding the four
expert reports, dismissal was mandatory because (1) the latter two reports were not timely served, and (2)
the first two reports, while timely served, are not sufficient under the statute. See id. § 74.351(l).
However, although Hawkins objected to the adequacy of the two timely-served reports, she did not ask the
trial court to rule on those objections. Thus, she has not preserved that complaint for appeal and therefore
cannot demonstrate an abuse of discretion by the trial court.
Accordingly, we affirm the trial court's judgment.
Background
On January 6, 2006, the Herreras filed the first of two health-care liability claims (the "2006 suit") against
Hawkins, alleging negligence in connection with the birth of their daughter. Within the first 120 days after
filing suit, the Herreras served upon Hawkins two expert reports, both authored by Donald J. Coney, M.D.,
that criticized Hawkins's medical care. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01 sec.
74.351(a), 2003 Tex. Gen. Laws 847, 875 (amended 2005) (current version at Tex. Civ. Prac. & Rem.
Code Ann. § 74.351(a) (Vernon Supp. 2008)).[1] Hawkins timely filed objections to the sufficiency of both
reports, but she did not move to dismiss the 2006 suit and did not present those objections to the trial court
for ruling. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (b), (l); Tex. R. App. P. 33.1(a).
For reasons not relevant to this appeal, the Herreras non-suited their 2006 suit against Hawkins in June
2008. At that time, Hawkins still had not asked the trial court to rule on her objections to Coney's expert
reports. A month later, the Herreras re-filed their lawsuit (the "2008 suit") against Hawkins, raising the
same allegations as before. In November 2008, they served two more expert reports on Hawkins, including
a third report from Dr. Coney and an additional report from John Seals, M.D. Thus, the Herreras have
served four expert reports on Hawkins: two during the 2006 suit, and two more in the 2008 suit raising the
same allegations.
Hawkins moved to dismiss the 2008 suit, contending the two reports served in November 2008 were
untimely because the Herreras' expert-report deadline expired 120 days after the filing of the first suit in
2006. The Herreras filed a written response, to which they attached the 2006 reports, and argued that,
even assuming the truth of Hawkins's argument, they still complied with the expert-report requirement by
timely serving the first two reports. Once again, Hawkins did not ask the trial court to rule on her earlier
objections to the adequacy of the 2006 reports. Instead, she argued, "the sufficiency of these [2006]
expert reports was timely objected to by Defendant Hawkins in the previous suit and Plaintiff's [sic] nonsuit
prohibits Defendant's ability to have this Court hear the sufficiency of the 2006 expert reports."
At the hearing, Hawkins explicitly challenged the sufficiency of the 2008 reports, but not the 2006 reports.
After she conceded the first two reports had been timely served, the trial court stated:
But I'm going to overrule the objection on the timing. It appears that the expert report was timely filed and
giving [sic] the provider notice of the claim when the suit was originally filed. Because that sort of cuts both
ways, just as if it hadn't been they wouldn't get a new 120 days, but they did file the report and I'm going to
find it was filed timely.
That day, the trial court signed an order denying Hawkins's motion to dismiss without specifying the basis
for its ruling. This interlocutory appeal followed. In one issue, Hawkins contends the trial court abused its
discretion by denying her motion to dismiss, arguing (1) the 2008 reports were not timely served and could
not be considered, and (2) none of the four tendered reports are sufficient to satisfy the statutory
requirements for an expert report.
Analysis
A. Standard of Review
A medical-malpractice plaintiff must, within the first 120 days of suit, serve on the defendant or her attorney
one or more "expert reports" that set forth (1) the applicable standard of care, (2) the manner in which the
defendant's care failed to satisfy that standard, and (3) the causal relationship between the defendant's
failure and the injury or damages claimed. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (r)(6).
Generally, if the plaintiff fails to timely serve an expert report within the statutory deadline, the trial court
must dismiss the lawsuit with prejudice. See id. § 74.351(b). By contrast, if the plaintiff has timely served a
report on the defendant, the trial court cannot dismiss the lawsuit unless the proffered report does not
represent an objective good-faith effort to comply with the statutory requirements for such a report. See id.
§ 74.351(l).
We review the trial court's denial of a motion to dismiss under section 74.351 for an abuse of discretion.
See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001); Baylor Coll. of
Med. v. Pokluda, 283 S.W.3d 110, 116 (Tex. App.- Houston [14th Dist.] 2009, no pet.). A trial court abuses
its discretion if it acts in an arbitrary or unreasonable manner or without reference to any guiding rules or
principles. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).
B. Application to Facts
Initially, Hawkins contends the trial court could not consider the two reports served in November 2008
because they were not timely served. She notes the original expert-report deadline expired in May 2006,
that is, 120 days after the first suit was filed, and argues this deadline could not be restarted simply by
non-suiting the 2006 suit and re-filing the same claim in 2008.
At first blush, this case appears to resemble Mokkala v. Mead, in which a panel majority of this court held
that the plaintiffs' 120-day period ran from the inception of their first lawsuit against the same health-care
provider. 178 S.W.3d 66, 71 (Tex. App.- Houston [14th Dist.] 2005, pet. denied). Thus, in Mokkala, the
majority specifically rejected the plaintiffs' claim that they could somehow revive an expired expert-report
deadline through a new suit raising the same claims: "Allowing a plaintiff to restart the period for serving an
expert report by simply nonsuiting her health care liability claim and refiling that same claim, could
effectively expand the 120-day period to well over two years." Id. at 76.
However, this case is distinct from Mokkala because, by the time the Herreras non-suited their 2006 claim,
they had already attempted to comply with section 74.351(a) by serving two expert reports within the
120-day deadline. Cf. id. (addressing case in which no reports were served within 120 days of the filing of
first lawsuit). Therefore, this case does not fit within the category of cases encompassed by section
74.351(b), which mandates dismissal when no report has been timely served. See Tex. Civ. Prac. & Rem.
Code Ann. § 74.351(b).
Instead, to secure a dismissal of the Herreras' lawsuit, Hawkins was required to demonstrate, through a
motion challenging the adequacy of the two timely-served reports, that neither report represented a
good-faith effort to satisfy the statutory requirements for an expert report. See id. § 74.351(l). That
scenario has not come to pass, because Hawkins has never asked the trial court to decide the adequacy of
the 2006 reports.
In an attempt to overcome that procedural hurdle, Hawkins insists the burden of securing a ruling on the
adequacy of the 2006 reports somehow belongs to the Herreras, not her. As she argues in her brief, the
Herreras "failed to obtain a ruling from the trial court that their 2006 Expert Reports were sufficient . . . and
cannot now rely on the 2006 Expert Reports in the 2008 Lawsuit without such determination."
Hawkins cites no authority, nor have we found any, supporting the unusual claim that the burden of
securing a ruling on an objection rests on the non-objecting party. Simply put, that misplaces the
responsibility. The burden explicitly falls on the objecting party, see Tex. R. App. P. 33.1(a), and section
74.351(l) is no exception to that rule. It states, "A court shall grant a motion challenging the adequacy of an
expert report only if it appears to the court, after hearing, that the report does not represent an objective
good faith effort to comply with the definition of an expert report in Subsection (r)(6)." Tex. Civ. Prac. &
Rem. Code Ann. § 74.351(l) (emphasis added). Thus, in the context of challenges to the adequacy of an
expert report, this section naturally places the burden on the objecting party, here, Hawkins, to secure a
ruling. See id.
Hawkins has neither presented her objections to the adequacy of the 2006 reports to the trial court, nor
obtained a ruling on those complaints. Therefore, we decline to address those objections for the first time
on appeal. See Tex. R. App. P. 33.1(a); Galtex Prop. Investors, Inc. v. City of Galveston, 113 S.W.3d 922,
926 (Tex. App.- Houston [14th Dist.] 2003, no pet.).
Because Hawkins did not ask the trial court to find the timely-served reports inadequate under Section
74.351(l), she has not demonstrated that the trial court abused its discretion by denying her motion to
dismiss the Herreras' lawsuit. See Tex. Civ. Prac. & Rem. Code Ann. §74.351(l). Therefore, we overrule
appellant's only issue and affirm the trial court's judgment.[2]
CONCLUSION
Finding no merit in the issue presented, we affirm the trial court's judgment.
/s/ Kent C. Sullivan
Justice
Panel consists of Chief Justice Hedges, and Justices Seymore and Sullivan
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[1] In 2005, the Legislature changed some of the wording of section 74.351(a) to clarify the starting date for a claimant's
120-day period in which to serve expert reports, at least as to causes of action accruing after September 1, 2005. See Act of
May 18, 2005, 79th Leg., R.S., ch. 635, 2005 Tex. Gen. Laws 1590, 1590. The Herreras' claims, which accrued before the
amendment's effective date, are still governed by the prior version of section 74.351(a). See id. §§ 2, 3. In any event, the
amendment is not germane to the parties' dispute here, as Hawkins concedes Dr. Coney's first two reports were timely
served.
[2] Because we affirm the judgment due to Hawkins's failure to preserve her objections to the timely-served 2006
reports, we need not address her complaints about the timeliness and adequacy of the 2008 reports. See Tex. R. App. P.
47.1.