Whitworth v. Blumenthal , 2001 Tex. App. LEXIS 7073 ( 2001 )

MORRIS, Justice,

concurring.

The issue in this case on which the members of the Court cannot agree is whether a plaintiff who files an inadequate expert report may be entitled to a thirty-day “grace period” within which to amend or file a new report. The dissent relies on the Texas Supreme Court’s recent opinion in American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (Tex.2001), to conclude that once a trial court finds a plaintiffs expert report to be inadequate, the only course of action open to the trial court is to dismiss the plaintiffs claims with prejudice. The majority, on the other hand, concludes that a plaintiff who has furnished an inadequate report may seek a thirty-day grace period to correct the report. I agree with the majority’s conclusion that neither Palacios nor the statute in question dictates that the mere filing of an inadequate report prevents a plaintiff from seeking relief from immediate dismissal. I do not embrace completely, however, the majority’s reasoning. Therefore, I write separately.

Section 13.01(d) of the Medical Liability and Insurance Improvement Act mandates that a plaintiff in a health care liability action timely furnish an expert report for each defendant or voluntarily dismiss the case.¹ Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d) (Vernon Supp.2001). The requirements for the expert report are set out explicitly in section 13.01(r)(6).² Id. § 13.01(r)(6). A close reading of section 13.01 reveals that it does not provide a specific mechanism for challenging whether a report is in compliance with the requirements of subsection (r)(6). Nonetheless, such challenges are recognized by section 13.01 (l), which 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 a good faith effort to comply with the definition of an expert report in Subsection (r)(6) of this section.

Id. § 13.01(i). Notably, in the entirety of section 13.01, it is subsection (i) alone that recognizes an expert report may not be adequate and may be challenged on that basis.

In Palacios, the Texas Supreme Court examined what constitutes an adequate report as well as the meaning of the phrase “good faith effort to comply” as contemplated by section 13.01(0- See Palacios, 46 S.W.3d at 878. The court began by restricting the determination of both “adequacy” and “good faith” to an examination of the report itself. See id. The court went on to conclude that to constitute a good faith effort, a report must fulfill the two purposes an expert report was designed to meet and must not omit any of the statute’s specific requirements. See id. at 879. Palacios, therefore, compels one to conclude there is virtually no difference between an adequate report — one meeting the requirements of section 13.01(r)(6) — and a good faith effort. In effect, a good faith effort always produces a report that satisfies all statutory requirements. Palacios’s interpretation of section 13.01(Z) produces the narrowest possible definition of “good faith effort.”

The conclusion that there is no real difference between an adequate report and a good faith effort arguably is necessitated by the statute’s structure. Under section 13.01, so long as a report constitutes a good faith effort to comply with the statutory requirements, regardless of its clarity or specificity, the report stands as the one to be used by both the defense and the trial court to determine the basis and merits of the plaintiffs claims. There is simply no provision in the statute requiring a plaintiff’s report, made in good faith, to be restated or improved. Because the statute does not provide a defendant a means by which to force a plaintiff to redo his “good faith effort to comply,” the good faith effort as contemplated by section 13.01(£) cannot be anything less than a report meeting the requirements of subsection (r)(6). Otherwise, the very purposes for which the expert report requirement was designed would be frustrated.

Because of the extremely narrow definition of “good faith effort” compelled by section 13.01 and set out in Palacios, the majority correctly concludes the trial court did not abuse its discretion in finding the Whitworths’ expert report was inadequate. Given the inadequacy of the Whitworths’ report, the next step is to determine what remedy was available to Blumenthal, the defendant in this case.

Section 13.01 does not specify a remedy for a defendant who receives a report found to be inadequate by the trial court. Palacios indicates that once there has been a determination of inadequacy, the proper remedy is for the trial court to dismiss the plaintiffs claims with prejudice. See id. at 877. Importantly, Palac-ios specifies such dismissal is to be made pursuant to section 13.01(e). See id. Indeed, this is the remedy Blumenthal sought when he challenged the Whit-worths’ report and moved to dismiss their claims. But section 13.01(e) says nothing about inadequate reports. See Tex.Rev. Civ. Stat. Ann. art. 4590i, § 13.01(e) (Vernon Supp.2001). It directs only that a plaintiffs claims be dismissed with prejudice when the plaintiff fails to timely provide an expert report and does not voluntarily dismiss his claims as required by subsection (d).³ Because Palacios dictates dismissal solely under section 13.01(e) as the appropriate remedy for submitting an inadequate report, a significant legal consequence attends the supreme court’s ruling: a plaintiffs inadequate report is the legal equivalent of not filing any report at all. This consequence flows from the dependency of section 13.01(e) on section 13.01(d). Section 13.01(d) requires a report conforming with subsection (r)(6)’s definition, and anything less fails to be an expert report for the purposes of section 13.01(d). Under 13.01(e), therefore, a plaintiff who files an inadequate report is subject to having his claims dismissed because he has failed to comply with 13.01(d) by not filing an expert report within the time required.

Section 13.01(e) provides for mandatory dismissal, and Palacios accordingly speaks in terms of mandatory dismissal: “If a trial court determines that an expert report does not meet these statutory requirements and the time for filing a report has passed, it must then dismiss with prejudice the claims against the defendant who has challenged the report.” Palacios, 46 S.W.3d at 877. The dissent focuses on this language in Palacios to conclude that the supreme court’s opinion denies a plaintiff who furnishes an inadequate report the option of seeking to file a new report under 18.01(g)’s thirty-day grace period.⁴ See Tex.Rev.Cxv. Stat. Ann. art. 4590i, § 13.01(g) (Vernon Supp.2001). Neither Palacios nor the statute supports this conclusion.

Mandatory dismissal under section 13.01(e) is a separate issue from obtaining a grace period under section 13.01(g). Section 13.01(g) provides equitable relief as contrasted to the legal remedy prescribed by subsection (e). Palacios neither directly nor indirectly addresses the plaintiffs right to obtain a grace period after his expert report has been found inadequate. The supreme court simply has not yet addressed the issue. No one disputes, however, that a plaintiff who fails to furnish any expert report is subject to mandatory dismissal under section 13.01(e). Moreover, it is also undisputed that such a plaintiff may seek equitable relief from section 13.01(e)’s required dismissal by requesting a section 13.01(g) grace period. Because an inadequate report is the same under Palacios as no report at all, there is no reason why a plaintiff whose claims are subject to dismissal under section 13.01(e) for filing an inadequate report should be treated differently than a plaintiff whose claims are subject to dismissal under 13.01(e) for failing to file any report. A close examination of the relationship between sections 13.01(d), (e), and (g) compels this conclusion.

The statutory scheme, as Palacios perceives it, provides a defendant who receives an inadequate report with the legal remedy of dismissal under section 13.01(e), which, in turn, authorizes dismissal only for failure to comply with section 13.01(d) within the time required. In other words, a trial court’s finding under section 13.01(¿) that a report is not a “good faith effort,” and thus not adequate, necessarily means the plaintiff has failed to furnish a report by the deadline prescribed in 13.01(d). Otherwise, a plaintiffs claims could not be dismissed under subsection (e).

It is significant that section 13.01(g), like section 13.01(e), operates conditionally through section 13.01(d). A plaintiff may seek relief under section 13.01(g) when he has “failed to comply with a deadline established by Subsection (d).” Id. A plaintiffs failure to comply with a section 13.01(d) deadline is the conditional predicate for the application of both subsections (e) and (g). Neither section operates absent the plaintiffs failure to comply with section 13.01(d). In effect, if a plaintiff is subject to a section 13.01(e) dismissal, the very facts that make him subject to such a dismissal also make available for him section 13.01(g)’s equitable grace period. Law and equity walk hand in hand through section 13.01.

The dissent argues that a plaintiff who has filed an inadequate report cannot seek relief under 13.01(g) because he has not “failed to comply with a deadline.” According to the dissent, any report, so long as it is filed timely, is sufficient to comply with the deadline requirement. This cannot be true. If it were true, a plaintiff who has filed an inadequate report could never be dismissed under section 13.01(e) as required by Palacios because there would never be a failure to comply with section 13.01(d) “within the time required.” Again, dismissal under subsection (e) is for failure to comply with a section 13.01(d) deadline.

Because the Whitworths’ claims were subject to dismissal under section 13.01(e) due to their failure to comply with subsection (d), they were also entitled to seek relief under section 13.01(g). Entitlement to seek relief, however, is not the same as entitlement to the relief sought. To be entitled to a grace period under section 13.01(g), the Whitworths had to show that their failure to furnish an adequate expert report was not intentional or the result of conscious indifference but was the result of accident or mistake. See id. Where a plaintiff has already filed an inadequate report, a showing of accident or mistake may be more difficult. This is so because a finding of inadequacy presupposes that the initial report was not submitted as a “good faith effort to comply” with the statutory requirements for expert reports. Id. § 13.01(i). Normally, it would be conceptually difficult to reconcile a claim that something was an accident or mistake with a prior judicial declaration that the plaintiffs attempt to furnish a report was not a “good faith effort.” But where the definition of “good faith effort” is as narrow as the one the supreme court has set forth, an absence of good faith and a showing of accident or mistake are not mutually exclusive.

As stated in Palacios, whether a plaintiff made a good faith effort to provide an adequate expert report is determined solely by an examination of the report itself. Palacios, 46 S.W.3d at 878. A showing of “accident or mistake” under section 13.01(g) is not so limited. Under section 13.01(g), a plaintiff can present evidence of the circumstances surrounding the submission of the report. For example, a plaintiff could present evidence that he accidentally failed to provide a page of his expert report containing testimony about the standard of care to be applied in the case. Under Palacios, the report would not be considered adequate or a good faith effort to comply because it omits one of the statutory requirements. See id. at 879. Nonetheless, under the equitable standards embodied in section 13.01(g), the trial court could find the plaintiffs failure to include the page was truly an accident or mistake, rather than intentional or the result of conscious indifference. Upon such a finding, the plaintiff would be entitled to a thirty-day grace period to submit an adequate report and thus avoid dismissal under section 13.01(e).

Because I agree with the majority’s conclusion that the Whitworths showed their failure to file an adequate report was a mistake rather than intentional or the result of conscious indifference, I concur in the result reached by the majority.⁵

1 . Section 13.01(d) provides:

Not later than the later of the 180th day after the date on which a health care liability claim is filed or the last day of any extended period established under subsection (f) or (h) of this section, the claimant shall, for each physician or health care provider against whom a claim is asserted:

(1) furnish to counsel for each physician or health care provider one or more expert reports, with a curriculum vitae of each expert listed in the report; or

(2) voluntarily nonsuit the action against the physician or health care provider.

2 . Section 13.01 (r)(6) defines an expert report as follows:

"Expert report” means 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 the failure and the injury, harm, or damages claimed.

3 . Section 13.01(e) states specifically:

If a claimant has failed, for any defendant physician or health care provider, to comply with subsection (d) of this section within the time required, the court shall, on the motion of the affected physician or health care provider, enter an order awarding as sanctions against the claimant or the claimant’s attorney:

(1) the reasonable attorney’s fees and costs of court incurred by that defendant;

(2) the forfeiture of any cost bond respecting the claimant’s claim against that defendant to the extent necessary to pay the award; and

(3) the dismissal of the action of the claimant against that defendant with prejudice to the claim's refiling.

4 . Section 13.01(g) states:

Notwithstanding any other provision of this section, if a claimant has failed to comply with a deadline established by Subsection (d) of this section and 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 accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection. 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 a defendant under Subsection (e) of this section.

5 . I do not necessarily concur, however, in a statement made in footnote 4 of the majority opinion. In that footnote, the majority concludes a plaintiff may seek relief under section 13.01(g) only once. That issue need not be addressed in this appeal and, therefore, I express no opinion on it.