rice-robert-individually-as-heir-to-and-as-representative-of-the-estate ( 2003 )

Affirmed and Memorandum Opinion filed May 29, 2003

Affirmed and Memorandum Opinion filed May 29, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-01-00504-CV

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ROBERT RICE, INDIVIDUALLY, AS HEIR TO AND AS REPRESENTATIVE OF THE ESTATE OF TERI LYNN RICE, DECEASED, AND AS NEXT FRIEND OF RICHARD M. RICE, MINOR AND HEIR TO THE ESTATE OF

TERI LYNN RICE, AND RICHARD A. MINARD, Appellants

V.

HNMC, INC. D/B/A HOUSTON NORTHWEST MEDICAL CENTER,

TENET HEALTHCARE CORPORATION, EMCARE, INC.,

JACK NUSZEN, D.O., AND LEWIS A. LEAVITT, III, M.D., Appellees

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Cause No. 00-21081

M E M O R A N D U M   O P I N I O N

Appellants Robert Rice, individually, as heir to and as representative of the estate of Teri Lynn Rice, deceased, and as next friend of Richard M. Rice, minor and heir to the estate of Teri Lynn Rice, and Richard A. Minard (collectively, Athe Rice Family@) filed a wrongful-death-and-survival action based on the alleged failure of Drs. Jack Nuszen and Lewis Leavitt, III, to diagnose the cardiac disease that allegedly caused the death of Teri Lynn Rice.  The trial court granted appellees= motion to dismiss for failure to file a sufficient expert report under section 13.01 of the Medical Liability and Insurance Improvement Act.  The Rice Family asserts that the trial court abused its discretion in denying its request for an extension of time to supplement its expert report and in finding its expert report insufficient.  We affirm.

                            I. Factual and Procedural Background

In July of 1998, decedent Teri Lynn Rice was allegedly struck by lightning.  She sought medical treatment in the emergency room at Houston Northwest Medical Center. She complained of chest pains, and she was concerned that she was having a heart attack.  The Rice Family alleges that Drs. Nuszen and Leavitt provided medical care to Mrs. Rice in the emergency room and that they committed various acts of negligence, including discharging Mrs. Rice without properly diagnosing her heart disease.  The Rice Family alleges that Mrs. Rice died approximately one week after she was discharged from the emergency room and that the cause of her death was the undiagnosed heart disease. 

On April 27, 2000, the Rice Family filed suit against Drs. Nuszen and Leavitt and appellees/defendants HNMC, Inc. d/b/a Houston Northwest Medical Center, Tenet Healthcare Corporation, and Emcare, Inc. (collectively, the AMedical Providers@), alleging that their negligence and gross negligence proximately caused Mrs. Rice=s death.  The Rice Family attached to its original petition a one-page expert report of Dr. George R. Schwartz.  On January 18, 2001, after some of the appellees/defendants moved to dismiss for failure to file a proper expert report, the Rice Family filed a response in opposition that included a request for an Aextension of time for Dr. Schwartz to supplement his expert report to specifically state that he is incorporating by reference the documents he reviewed and relied upon in his report.@  On January 19, 2001, the Rice Family filed a supplemental report of Dr. Schwartz. This report does not incorporate by reference any documents that Dr. Schwartz reviewed and upon which he relied in his report, and the Rice Family never requested an extension of time to file this supplemental report.  On January 26, 2001, the trial court granted the Medical Providers= motions to dismiss.

Although the Rice Family tendered a motion for new trial to the district clerk on February 23, 2001, the clerk refused to accept the motion at that time because the trial court had not dismissed the Rice Family=s claims against two unserved defendants C Drs. Nuszen and Leavitt.  After the Rice Family nonsuited the claims asserted against these two defendants, the district clerk accepted the Rice Family=s motion for new trial on April 16, 2001.  On May 11, 2001, the Rice Family filed its notice of appeal as well as a motion for extension of time to file the notice of appeal.

                                                   II. Issues and Analysis

A.  Does this court have appellate jurisdiction?

Despite this court=s prior denial of their motion to dismiss for lack of appellate jurisdiction, the Medical Providers continue to challenge this court=s appellate jurisdiction.  They correctly state that the trial court=s dismissal order of January 26, 2001, was final and appealable, despite its failure to dispose of the Rice Family=s claims against two unserved defendants.  See Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962).  However, we reaffirm our prior ruling in this case.  The Rice Family has shown that it timely filed its motion for new trial by tendering the motion to the district clerk on February 23, 2001. See Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993) (noting that, under Texas law, a document is deemed filed with a court when it is tendered to the clerk).  Because the Rice Family timely filed a motion for new trial, its deadline to file a notice of appeal was April 26, 2001.  See Tex. R. App. P. 26.1(a).  Within fifteen days of this deadline, the Rice Family filed a notice of appeal, and it also timely filed a motion for extension of time to file a notice of appeal that provided a reasonable explanation for its failure to timely file the notice of appeal.  See Tex. R. App. P. 10.5 (b)(2)(A), 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).  Therefore, this court has jurisdiction.  Accordingly, we overrule the Medical Providers= challenge to our appellate jurisdiction.

B.      Did the trial court abuse its discretion by ruling that the Rice Family did not file an expert report in compliance with section 13.01 of the Medical Liability and Insurance Improvement Act?

In its second issue, the Rice Family asserts it complied with the expert-report requirements of section 13.01 of the Medical Liability and Insurance Improvement Act, and therefore, the trial court abused its discretion in dismissing the Rice Family=s claims.  Section 13.01 establishes certain procedural requirements applicable to health care liability claims.  See Tex. Rev. Civ. Stat. Ann. art. 4590i, ' 13.01.  Under subsection (d), not later than the 180th day after filing suit or the last day of any extended period under subsection (f) or (h), a health care liability claimant who wishes to pursue a claim must furnish an expert report for each physician or health care provider against whom she asserts a claim. Id., ' 13.01(d). The statute defines an Aexpert report@ as

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.

Id., ' 13.01(r)(6).  Thus, the expert report must set out, in nonconclusory language, the expert=s opinions about three elements of the claim: the standard of care, breach, and causation.  See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001).  Subsection (e) provides that if the claimant fails to comply with subsection (d) within the time allowed, the court shall, on the defendant=s motion, enter an order dismissing the claim with prejudice as a sanction against the claimant.  See Tex. Rev. Civ. Stat. Ann. art. 4590i, ' 13.01(e); Palacios, 46 S.W.3d at 877. Finally, subsection (l) requires the trial court to grant a motion challenging the adequacy of an expert report Aif 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.@  See Tex. Rev. Civ. Stat. Ann. art. 4590i, ' 13.01(l).  The report itself must include the required information within its four corners.  Bowie Mem=l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002); Palacios, 46 S.W.3d at 878.

The Rice Family argues Dr. Schwartz=s original expert report was sufficient under section 13.01.^[1]  Dr. Schwartz=s original expert report reads in its entirety:

At your request, I have reviewed medical records from 1996 up through and including July, 1998 pertaining to the decedent, Teri Lynn Rice.  Based on my review of the information provided to date, as well as my education, training and experience as a medical professional, it is my opinion that the actions and/or inactions of HNWMC, Inc. [sic] d/b/a Houston Northwest Medical Center, Tenet Healthcare Corporation, Emcare, Inc., Jack Nuszen, D.O., and Lewis A. Leavitt, III, M.D. in the diagnosis and treatment, or lack thereof, of Teri Lynn Rice was negligence.  It is also my opinion that the negligence of each was the proximate and producing cause of Teri Lynn Rice=s death.

I respectfully reserve the right to supplement this report as additional information becomes available.

This short and conclusory report does not inform each defendant of the specific conduct the Rice Family has called into question, nor does it provide a basis for the trial court to conclude that the claims have merit.  See Palacios, 46 S.W.3d at 878B79.  The original report does not contain a fair summary of Dr. Schwartz=s opinions about the applicable standard of care, the manner in which the defendants allegedly failed to meet that standard, and the causal relationship, if any, between that failure and the claimed injury.  See id. at 878.  Because the original expert report=s conclusory statements did not put the Medical Providers or the trial court on notice of the challenged conduct, section 13.01(l) afforded the trial court no discretion but to conclude that the report failed to represent a good-faith effort to provide a fair summary of the standard of care and how it was breached, as section 13.01(r)(6) requires. See id. at 880.

In its second issue, the Rice Family also asserts that the supplemental report of Dr. Schwartz satisfied section 13.01. The Rice Family filed this supplemental report more than 180 days after filing suit, and it never requested either a general extension of time or an extension of time to file the supplemental report.  Therefore, this supplemental report was untimely, and we may not consider it on appeal. See Tex. Rev. Civ. Stat. Ann. art. 4590i, ' 13.01(d), (f), (h); Hightower v. Saxton, 54 S.W.3d 380, 385 (Tex. App.CWaco 2001, no pet.); Richburg v. Wolf, 48 S.W.3d 375, 378B79 (Tex. App.CEastland 2001, pet. denied). Accordingly, we overrule the Rice Family=s second issue.

C.      Did the trial court abuse its discretion by denying the Rice Family=s request for an extension of time?     

In its first issue, the Rice Family argues the trial court abused its discretion by denying its request for an extension of time to supplement Dr. Schwartz=s report.  We disagree.  The only extension the Rice Family requested of the trial court was an extension of time for ADr. Schwartz to supplement his expert report to specifically state that he is incorporating by reference the documents he reviewed and relied upon in his report.@  We hold the trial court did not abuse its discretion in denying this request.  Granting this request would not have cured the Rice Family=s noncompliance with the expert-report requirements of section 13.01, and it would not have impacted the trial court=s duty to dismiss the Rice Family=s claims, given this noncompliance with the statute and the expiration of the 180-day time period without any other requests for extension.  See Tex. Rev. Civ. Stat. Ann. art. 4590i, ' 13.01; Palacios, 46 S.W.3d at 880.

To the extent the Rice Family asserts error based on the trial court=s failure to grant a general extension of time to supplement Dr. Schwartz=s expert report or an extension of time to make the supplemental report of Dr. Schwartz timely, the Rice Family did not request such extensions from the trial court, and therefore, it has not preserved error as to these complaints.  See Tex. R. App. P. 33.1; GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 620 (Tex. App.CHouston [14th Dist.] 2001, pet. denied) (finding no preservation of error when party did not assert appellate complaint in trial court).

Finding no abuse of discretion, we overrule the Rice Family=s first issue.

D.      Did the Rice Family preserve error as to its challenge to the trial court=s dismissal of its claims against Tenet Healthcare Corporation?

In its third issue, the Rice Family asserts the trial court erred in granting Tenet Healthcare Corporation=s motion to dismiss because the Medical Liability and Insurance Improvement Act does not apply to this corporation.  However, the Rice Family does not cite and we have not found any place in the record where it asserted this complaint in the trial court.  We conclude that the Rice Family has not preserved error as to its third issue, and we overrule it.  See Tex. R. App. P. 33.1;  Pascouet, 61 S.W.3d at 620.

                                                           III. Conclusion

Because the original expert report=s conclusory statements did not put the Medical Providers or the trial court on notice of the conduct made the basis of the Rice Family=s claims, section 13.01(l) afforded the trial court no discretion but to conclude that the report failed to represent a good-faith effort to provide a fair summary of the standard of care and how it was breached, as section 13.01(r)(6) requires.  Because the statutory 180-day time period had passed when the trial court made that determination, and because the Rice Family=s only request for an extension of time would not have cured its noncompliance with section 13.01, the trial court had to dismiss its claims with prejudice under section 13.01(e).  See Tex. Rev. Civ. Stat. Ann. art. 4590i, '  13.01(e); Palacios, 46 S.W.3d at 880.  Accordingly, we affirm the trial court=s judgment.

/s/        Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed May 29, 2003.

Panel consists of Justices Yates, Anderson, and Frost.

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^[1]  In several parts of its argument, the Rice Family seems to indicate that this court should not apply the Texas Supreme Court=s opinion in Palacios to this case because the trial court=s dismissal occurred before our high court issued the Palacios opinion.  See Palacios, 46 S.W.3d at 873.  We disagree.  Absent exceptional circumstances that are not present here, court decisions apply retroactively.  See Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 4B5 (Tex. 1999). The Texas Supreme Court did not limit the retroactivity of the Palacios decision in the Palacios opinion, and it has since applied Palacios to a case that was on appeal when it decided Palacios. See Bowie Mem=l Hosp., 79 S.W.3d at 52; Palacios, 46 S.W.3d at 876B80.