John Palosi, IV, Individually and as Personal Representative of the Estate of John Palosi III And Andrew Palosi v. Frank Kretsinger, D.O. ( 2009 )

i i i i i i
MEMORANDUM OPINION
No. 04-08-00007-CV
John PALOSI IV, Individually and as Personal Representative
of the Estate of John Palosi III, & Andrew Palosi,
Appellants
v.
Frank KRETSINGER, D.O.,
Appellee
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2007-CI-07297
Honorable David A. Berchelmann, Jr., Judge Presiding
Opinion by: Steven C. Hilbig, Justice
Sitting: Karen Angelini, Justice
Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Delivered and Filed: February 11, 2009
AFFIRMED
This is an appeal from a trial court’s order dismissing a medical malpractice action for failure
to file the statutorily-mandated expert report and curriculum vitae. Appellants John Palosi IV,
Individually and as Personal Representative of the Estate of John Palosi III, and Andrew Palosi raise
a single issue contending portions of section 74.351 of the Texas Civil Practice & Remedies Code
violate their rights under the open courts provision of the Texas Constitution. We affirm the trial
court’s judgment.
04-08-00007-CV
BACKGROUND
John Palosi III was a patient of Frank Kretsinger, D.O. John Palosi III died while under
Kretsinger’s care. On May 14, 2007, his sons John Palosi IV and Andrew Palosi (“the Palosi
brothers”) filed wrongful death and survival claims against Kretsinger, alleging his medical
malpractice caused their father’s death. Because their claim is a health care liability claim, the Palosi
brothers were required to serve Kretsinger with an expert report and the expert’s curriculum vitae
within 120 days of filing suit. See TEX . CIV . PRAC. & REM . CODE ANN . § 74.351(a) (Vernon 2008).
On May 31, 2007, the Palosi brothers’ attorney unexpectedly died. On September 27, 2007,
Kretsinger filed a motion to dismiss pursuant to section 73.351(b) because he had not been served
with the required expert report and curriculum vitae. See id. § 74.351(b). The trial court granted the
motion, dismissed the suit against Kretsinger with prejudice, and awarded Kretsinger reasonable
costs and attorney’s fees. See id.
ANALYSIS
The Palosi brothers argue sections 74.351(a) and (b) violate their rights under the Texas open
courts provision because those sections required them to serve Kretsinger with an expert report
within 120 days of filing suit and the trial court to dismiss their suit when they failed to comply even
though the failure was a result of their attorney’s unexpected death, not because their suit was
frivolous. They contend the statute’s lack of a “Craddock-type” opportunity for an extension is an
unreasonable restriction on their right to redress.
When reviewing the constitutionality of a statute under an open courts challenge, we begin
with the presumption that the statute is constitutional. Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.
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1983); see Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003). The party challenging the
constitutionality of a statute must demonstrate that it fails to meet constitutional requirements.
Walker, 111 S.W.3d at 66.
Article I, section 13 of the Texas Constitution provides that “[a]ll courts shall be open, and
every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by
due course of law.” TEX . CONST . art. I, § 13. This clause is commonly referred to as the “Open
Courts Provision,” and acts as an additional due process guarantee granted in the Texas Constitution,
prohibiting legislative bodies from withdrawing all legal remedies from anyone have a well-defined
common law cause of action. Sax, 648 S.W.2d at 664-65. The open courts provision guarantees
“the legislature may not abrogate the right to assert a well-established common law cause of action
unless the reason for its action outweighs the litigants’ constitutional right of redress.” Trinity River
Auth. v. URS Consultants, Inc., 889 S.W.2d 259, 261 (Tex. 1994) (quoting Tex. Ass’n of Business,
v. Tex. Air Control Bd., 852 S.W.2d 440, 448 (Tex. 1993)). Therefore, to establish an open courts
violation in this context, the Palosi brothers must show: (1) they have a cognizable common law
cause of action that is being restricted, and (2) the restriction is unreasonable or arbitrary when
balanced against the purpose and basis of the statute. Diaz v. Westphal, 941 S.W.2d 96, 100 (Tex.
1997).
The Palosi brothers contend they have established the first element because their medical
negligence claim is a well-recognized common law cause of action. We agree that a suit for medical
negligence is recognized in common law. See, e.g., Humphreys v. Roberson, 125 Tex. 558, 83
S.W.2d 311 (1935). However, at common law, a personal injury claim did not survive an injured
party’s death, nor did a deceased’s heirs have a common law cause of action for their own losses.
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Diaz, 941 S.W.2d at 100; Kramer v. Lewisville Mem’l Hosp., 858 S.W.2d 397, 403 (Tex. 1993).
These actions are now permitted only by virtue of the Wrongful Death Act and the Survivorship
Statute. Diaz, 941 S.W.2d at 101; Kramer, 858 S.W.2d at 403; see TEX . CIV . PRAC. & REM . CODE
ANN . §§ 71.002-.004, 71.021 (Vernon 2008). Any medical negligence claim that can be brought
only because of the existence of the Wrongful Death Act and the Survivorship Statute is not a
common law claim and cannot form the basis of an open courts challenge. See Diaz, 941 S.W.2d
at 101 (holding that plaintiffs who brought wrongful death and survival actions, which were based
on alleged medical negligence, could not maintain open courts challenge because their remedies
were conferred by statute, not common law); Baptist Mem’l Hosp. Sys. v. Arredondo, 922 S.W.2d
120, 121-22 (Tex. 1996) (per curiam) (concluding that wrongful death plaintiff could not satisfy first
prong of open courts test because claim was purely statutory, although action was based on medical
negligence); Bala v. Maxwell, 909 S.W.2d 889, 893 (Tex. 1995) (holding that because plaintiffs had
no common law right to bring either wrongful death or survival action, they could not establish open
courts violation); Rose v. Doctors Hosp., 801 S.W.2d 841, 845 (Tex. 1990) (holding that because
plaintiffs’ medical negligence claim was common law claim that would have died with decedent if
not preserved by wrongful death statute, claim was conferred by statute not by common law,
precluding open courts challenge).
As with the plaintiffs in the cases cited above, the Palosi brothers’ claims are based on a
theory of medical negligence – that Kretsinger negligently prescribed medication contraindicated for
patients like John Palosi III, causing his death. The Palosi brothers’ claims would not have survived
the death of John Palosi III but for the wrongful death and survival statutes. Accordingly, the Palosi
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brothers’ remedies were statutorily conferred and thus, as a matter of law, the open courts doctrine
does not apply to this case.
The Palosi brothers argue we should hold sections 74.351(a) and (b) unconstitutional based
on our disposition in Rankin v. Methodist Healthcare Sys. of San Antonio, Ltd., LLP, 261 S.W.3d
93 (Tex. App.–San Antonio 2008, pet. filed). In Rankin, a hysterectomy patient brought a medical
negligence claim against her surgeons after a sponge was found in her abdomen. 261 S.W.3d at 95.
We held that the statute of repose, codified in section 74.251 of the Texas Civil Practice & Remedies
Code, violated the open courts provision of the Texas Constitution as applied to the plaintiff in that
case. Id. at 99. However, our holding was based in part on the fact that the statute abrogated the
plaintiff’s common law claim for negligence. Id. at 99. Here, the Palosi brothers have no common
law claim. Unlike the plaintiff in Rankin, who did not die and brought a medical negligence claim
on her own behalf, the Palosi brothers’ claims would have died with their father, but for the existence
of the wrongful death and survival statutes. Accordingly, Rankin is distinguishable and does not
compel the result sought by the Palosi brothers.
CONCLUSION
Despite the unfortunate circumstances, because the Palosi brothers cannot, as a matter of law,
establish the existence of a cognizable common law cause of action, the open courts doctrine does
not apply to this case. Accordingly, we overrule their issue and affirm the trial court’s judgment.
Steven C. Hilbig, Justice
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