in Re Daniel J. Vaughan, M.D. ( 2004 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                             Memorandum Opinion

In re Daniel J. Vaughan, M.D.

No. 11-04-00011-CV B Original Mandamus Proceeding

This is an original mandamus proceeding in a health-care liability claim.  Dr. Daniel J. Vaughan argues that the trial court should have dismissed the health-care liability claim against him because the expert report filed by the real party in interest, Teresa Pauline Swift, was inadequate.  He also maintains that the trial court was in error when it granted Swift an extension of time in which to file a second expert report.  We conditionally grant the petition for writ of mandamus sought by Dr. Vaughan.

Swift filed her health-care liability claim against Dr. Vaughan on June 26, 2002. She also made claims against other parties that are no longer involved in the lawsuit.  On December 20, 2002, Swift filed a purported expert report. On July 10, 2003, Dr. Vaughan filed a motion to dismiss Swift=s lawsuit in which he asserted that the report was insufficient.  In Swift=s response to the motion, she claimed that the report was sufficient as an expert report; and she also claimed that, if the report was found to be insufficient, then it was insufficient because of accident or mistake and that she was entitled to the 30-day grace period provided for in TEX.REV.CIV.STAT.ANN. art. 4590i, ' 13.01 (Vernon Supp. 2003).^[1]  On November 20, 2003, the trial court issued a letter ruling in which it denied Dr. Vaughan=s motion to dismiss and granted Swift 30 days in which to file an adequate report.  On December 10, 2003, the trial court entered an order which incorporated the terms of its letter ruling.  

Swift argues that mandamus is not a proper remedy.  We disagree.  Article 4590i, section 13.01(e) mandates that, upon a finding that a report is insufficient, the trial court has a ministerial duty to dismiss the claim. Mandamus is a proper remedy.  In re Tenet Hospitals Limited, 116 S.W.3d 821 (Tex.App. B El Paso 2003, orig. proceeding). 

Swift also argues that Dr. Vaughan=s request for mandamus is barred by laches.  First, Swift asserts that Dr. Vaughan delayed in filing his motion to dismiss and in seeking relief on his motion in the trial court. Laches is an affirmative defense.  TEX.R.CIV.P. 94.  Swift did not raise a laches defense in the trial court and, therefore, cannot complain on appeal of Dr. Vaughan=s alleged delay in the trial court.  Swift also asserts that Dr. Vaughan waited too long after the trial court=s ruling to file the petition for writ of mandamus in this court.  The issuance of a writ of mandamus is not an equitable remedy, but it is controlled by equitable principles to a large extent.  In re Users Systems Services, Inc., 22 S.W.3d 331, 337 (Tex.1999)(orig. proceeding); Rivercenter Associates v. Rivera, 858 S.W.2d 366, 367 (Tex.1993)(orig. proceeding); Bailey v. Baker, 696 S.W.2d 255, 256 (Tex.App. B Houston [14th Dist.] 1985, orig. proceeding).  One applicable equitable principle is that A[e]quity aids the diligent and not those who slumber on their rights.@  Rivercenter Associates v. Rivera, supra at 367. Thus, it is well settled that mandamus relief may be denied where a party inexplicably delays asserting its rights. See, e.g., Rivercenter Associates v. Rivera, supra at 367. A party asserting laches must show an unreasonable delay by the other party in asserting its rights and must also show harm resulting because of the delay. In re Bahn, 13 S.W.3d 865, 871 (Tex.App. B Fort Worth 2000, orig. proceeding).

Dr. Vaughan did not unreasonably delay filing his petition for writ of mandamus in this court. He filed the petition on the 30th day after the trial court entered its order; the petition was filed within a reasonable time period.  Furthermore, Swift has not shown that she was harmed by the alleged delay.  Dr. Vaughan=s petition for writ of mandamus is not barred by laches.

Swift asserts that Dr. Stephen Craig Hurlbut=s report was a good faith effort to comply with Article 4590i. The trial court provided in its order that:

Dr. Stephen Hurlbut=s expert report filed on December 20, 2002, is not adequate, but that its inadequacy was not intentional or the result of conscious indifference, but was due to mistake as that term is known in law.

*    *    *

IT IS ORDERED that Plaintiff, Teresa Pauline Swift, shall file an adequate report pursuant  to Article 13.01[(r)](6) within thirty (30) days of the date of this Order.

Section 13.01(e) of Article 4590i provided in part:

If a claimant has failed, for any defendant physician or health care provider, to comply with Subsection (d) [requiring the filing of an expert report or a nonsuit] 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:

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

Section 13.01(g) of Article 4590i provided:

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 an 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.

Section 13.01(l) of Article 4590i provided:

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. 

Section 13.01(r)(6) of Article 4590i provided:

AExpert 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 that failure and the injury, harm, or damages claimed.                           

A trial court=s decision to dismiss a lawsuit under Article 4590i, section 13.01(e) is reviewed for abuse of discretion.  American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (Tex.2001); Richburg v. Wolf, 48 S.W.3d 375 (Tex.App. B Eastland 2001, pet=n den=d).  A trial court=s decision to grant the grace period under Article 4590i, section 13.01(g) is also reviewed for abuse of discretion.  Walker v. Gutierrez, 111 S.W.3d 56 (Tex.2003).

In Walker, the supreme court held that, if a report omits one or more of the elements required by Article 4590i, section 13.01(r)(6), a mistaken belief that the report is sufficient is not the type of mistake that would entitle a claimant to the grace period provided for in Article 4590i, section 13.01(g).  Walker v. Gutierrez, supra.  Here, the trial court specifically found that the report was inadequate and that it did not meet the legal requirements of Article 4590i, section 13.01(r)(6).  That finding has not been challenged, and we have not been asked to review that finding for an abuse of discretion.  If a report omits any of the statutory requirements, it cannot constitute a good faith effort to comply with the statute.  The report was inadequate, as found by the trial court; and it cannot constitute a good faith effort to comply with the statute.  American Transitional Care Centers of Texas, Inc. v. Palacios, supra; In re Tenet Hospitals Limited, supra. Because the report in this case did not constitute a good faith effort to comply with the statute, the trial court should have granted Dr. Vaughan=s motion to dismiss.  Furthermore, because the report did not address one or more elements required by Article 4590i, section 13.01(r)(6), it is not the type of mistake that would entitle Swift to the grace period provided by Article 4590i, section 13.01(g) in order to comply with Article 4590i, section 13.01(r)(6).  Walker v. Gutierrez, supra.

The petition for writ of mandamus is conditionally granted.  In the event that the trial court does not enter its order denying the grace period requested by Swift and granting Dr. Vaughan=s motion to dismiss, a writ of mandamus will issue.

TERRY McCALL

JUSTICE

February 19, 2004

Not designated for publication. See TEX.R.APP.P. 47.2(a).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

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     ^[1]Although applicable to this case, Article 4590i was repealed effective September 1, 2003; and the subject matter is now governed by  TEX. CIV. PRAC. & REM. CODE ANN. ch. 74 (Vernon Pamph. Supp. 2004).  Matters regarding expert reports are specifically governed by Section 74.351.