Rory Lewis, M.D. v. Dewayne Funderburk, as Next Friend of Whitney Funderburk ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00197-CV

Rory Lewis, M.D.,

                                                                      Appellant

 v.

Dewayne Funderburk, as next

Friend of Whitney Funderburk,

                                                                      Appellee

From the 87th District Court

Limestone County, Texas

Trial Court No. 27,143-B

DISSENTING Opinion

          This is a medical malpractice case. The precedent established by this case is that if a trial court grants a plaintiff a 30 day extension to serve a medical expert report, there can be no interlocutory appeal if the trial court subsequently determines the extended report is compliant, no matter how defective the extended report may be.[1] I dissent.

The Time Line

02/22/02 -      Letter from one physician, thanking another physician for the referral of a client, aka Wroten Report

12/22/03 -      Suit filed

03/11/04 -      Wroten Report served as part of discovery

04/20/04 -      Deadline for serving an expert report

06/28/04 -      Motion to dismiss filed

09/30/04 -      Hearing on motion to dismiss.  Trial court determined instead that the Wroten Report is an inadequate expert report and gave 30 day extension upon request of plaintiff to serve a compliant report

10/29/04 -      Order signed granting the 30 day extension

10/29/04 -      Extended report served

11/12/04 -      Objections to extended report

11/12/04 -      Motion to Dismiss due to failure to file a compliant report and objections to extended report

02/04/05 -      Hearing on objections and motion to dismiss; objections overruled, motion denied

03/28/05 -      Order signed

04/12/05 -      Notice of Appeal filed

The Short Version

          The plaintiff filed suit.  The nature of the suit required an expert report to be served.  The plaintiff did not timely serve an expert report.  The defendant requested a dismissal.  The plaintiff argued that a referral letter that was in discovery responses already served was an expert report.  The referral letter was grossly deficient as an expert report.  The trial court denied the motion to dismiss and granted an extension.  The plaintiff served an extended report.  The defendant filed objections to the extended report and a second motion to dismiss.  The trial court overruled the objections to the extended report and denied the motion to dismiss. The defendant brings an interlocutory appeal.  The majority holds that we have no jurisdiction to review a trial court’s determination that an extended expert report is adequate under any circumstance and the defendant waited too long to bring an interlocutory appeal from the original denial when the trial court granted an extension to serve a compliant report.  Now the dissent gets its turn.

The First “Report”

          If the document dated February 22, 2002 and served in the course of discovery on March 11, 2004 is an expert report as defined by section 74.351(r)(6), I will have to change professions; but that is not the issue here.  Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6) (Vernon Supp. 2005).  To fully understand where I am going, you really need to see what the plaintiff contends is the first report.  The full Wroten Report is as follows:

February 22, 2002

Jon Ellis, M.D.

Waco Bone and Joint Clinic

3500 Hillcrest Drive

Waco, Tx 76708

Re:          Whitney A. Funderburk

Dear Jon:

Thank you for asking me to see Whitney A. Funderburk.  I saw Whitney in the office initially on 2/22/02. She was accompanied by her mom and dad.  Whitney is a 14-year-old female who is a middle school student down in Grosbeck, Texas.  On 12/22/01 she was involved in a four-wheeler accident.  She sustained an injury to her left wrist consisting of a Salter fracture that was displaced.  She had a fracture through the distal radial epiphysis with significant dorsal angulation of the distal fragment.  An attempted reduction was done and then a cast was applied.  There may have been a little bit of improvement with the reduction, but not a significant amount. The reduction was done in Mexia, Texas on 12/22/01.  Apparently she was in a cast for a month.  She describes a long-arm cast initially and then a short-arm cast for about three weeks.  Because of continued pain and displacement after the cast was removed, the family took her to see you in Waco.  You saw her initially on 2/1/02.  You recommended she see me.

When I saw Whitney and her parents in the office on 2/22/02 it had been about two months since her injury.  Whitney is still complaining of pain in the wrist.

On exam today, she has full mobility of her left shoulder.  She has full flexion and extension of her left elbow.  She has normal pronation compared to the uninjured right side, but her supination is zero.  She has 32 degrees of palmar flexion of the left wrist, 22 degrees of dorsiflexion, 8 degrees of radial deviation, and 28 degrees of ulnar deviation.  She has full flexion and extension of the fingers.  There is no numbness or tingling in the hand, and no atrophy in the upper arm, forearm, or intrinsic muscles of the hand.  She does have what appears to be a slight deformity about the left wrist.

I obtained x-rays today in the 90:90 view and compared the left with the right.  She still has significant dorsal displacement of the fracture fragment seen on the lateral view.  She does have significant healing present.  The alignment of the radiocarpal joint is not bad, but there is significant dorsal displacement.  I think some of this is keeping her from supinating her forearm.

This young lady is quite involved in sports and is very anxious to get back to them.  She is also concerned very much about her wrist.  While the Funderburks were in the office today, I told them I would like to review the x-rays that we took today with my associates and get back with them in a few days.  Further imaging studies may need to be done.  I told them I did not want to make a snap decision as to whether surgical intervention should be considered at this point.  I told them I wanted to review the films myself and then get other consultation and they were all in agreement with that.

Thanks again for your referral.

Sincerely,

B.J. Wroten, M.D.

          This letter was prepared during the course of treatment of the plaintiff and without regard to this suit.  It was produced to a hospital defendant as part of a document production by the plaintiff.  At the hearing on the first motion to dismiss, the plaintiff contended this letter was an expert report.  Let’s face it; the plaintiff was jammed up with a hard dismissal date because no report had been filed, the attorney reached into a hat and pulled out a rabbit – the trial court swallowed hard and cut the plaintiff some slack and, rather than dismiss the suit, determined that the Wroten Report was an inadequate expert report and gave the plaintiff the relief requested, an extension in which to serve a compliant expert report.  This was an interesting tactic.  If the Wroten Report was an expert report, you would have expected the response to be that the defendant had waited too long after the report was served to move for dismissal.  Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2005) (21 days to file objections after it is served).  But if this was an expert report … okay, I’ve said that already.

          So the plaintiff made a calculated decision and rather than run the risk of having the trial court grant the dismissal as required if no report was served, the plaintiff waived the opportunity to assert the defendant’s complaint was untimely and invited the trial court to err by granting the plaintiff an extension in which to serve a compliant expert report.  This put the defendant in a procedural posture probably not contemplated by anyone, ever – that a litigant would be unable to even identify a document as an expert report.

          But because the trial court granted an extension in which to serve a compliant report, the defendant was unable to bring an interlocutory appeal of the trial court’s order.  Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(9) (Vernon Supp. 2005) (“an appeal may not be taken from an order granting an extension under Section 74.351”).

          When the extended report was served within the extension period, the defendant promptly filed objections and a motion to dismiss.  The trial court overruled the objections, denied the motion to dismiss, and determined the report was compliant.  The defendant brings this interlocutory appeal.

          The majority holds that if a trial court grants an extension under section 74.351(c), the subsequent determination of the sufficiency of the extended report cannot be the subject of an interlocutory appeal.  Their reasoning is that, under section 51.014(a)(10), there is no interlocutory appeal for a defendant if the plaintiff’s expert report is determined to be adequate under section 74.351(l).  They acknowledge section 51.014(a)(10) gives the plaintiff the ability to take an interlocutory appeal if the report is determined to be inadequate.  But they also extrapolate from this that the defendant is not given the right to bring an interlocutory appeal if the trial court determines a report is compliant.  And they interpret section 74.351(b) to be applicable only to the total failure to file any report within 120 days and inapplicable to an extended report.  Thus, they have found what they believe is a statutory gap in the defendant’s ability to bring an interlocutory appeal of complaints about an expert report.  This is where they duck the review by interlocutory appeal of any report determined to be an adequate expert report if it is served after an extension is granted pursuant to section 74.351(c).  They do this by holding there is no provision in the Civil Practice and Remedies Code for a defendant to bring an interlocutory appeal if the extended report is determined to be adequate.  Therein lies the flaw in their logic, their opinion, and their result.

          The issue here, even viewed from the majority’s perspective, is under which provision the trial court was proceeding when it denied the defendant’s motion to dismiss and overruled his objections to the extended report.  The defendant sought dismissal and made his objections because a compliant report had not been served as required by section 74.351(a). The majority says any report served pursuant to an extension is a report under section 74.351(c).  And, as their logic goes, there is no section in Chapter 51 of the Civil Practice and Remedies Code to bring an interlocutory appeal under section 74.351(c).

          But a close examination of section 74.351(c) will reveal that a report served pursuant to an extension because the original report was deficient is, nevertheless, a report being challenged under section 74.351(b).  This is because when a document has been served, challenged, and determined deficient, it is as though no expert report has been served and the trial court can grant one 30 day extension to serve a compliant report.

          Thus, the challenge to the sufficiency of an extended report is still a challenge pursuant to section 74.351(b) that no compliant report has been timely served as required by section 74.351(a). And the denial of “all or part of the relief sought by a motion under Section 74.351(b)” by a defendant can be reviewed by interlocutory appeal.  Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (Vernon Supp. 2005).  We know that the trial court determined the Wroten Report was deficient and, therefore, no compliant report was timely served.  The trial court gave the plaintiff its one 30 day extension in which to serve a compliant report.  We also know that at the end of the hearing on the first motion to dismiss, the trial court told the defendant four times that it would reconsider the motion to dismiss after the extended report was “filed.”  The defendant also requested the dismissal of the plaintiff’s case with prejudice and attorneys fees.  See Academy of Oriental Medicine, L.L.C. v. Andra, 173 S.W.3d 184, 187 (Tex. App.—Austin 2005, no pet.) (“A motion challenging the adequacy of an expert report that does not request the relief set out in section 74.351(b) is a motion for relief under 74.351(l).”). 

          The extended report is thus the opportunity for the plaintiff to serve a compliant report which is then considered timely under section 74.351(a).  If the defendant seeks a determination that the extended report is not compliant, it is seeking a determination under section 74.351(b) that a compliant report has not been served and is seeking the relief specified in that subsection.  The legislature provided for an interlocutory appeal if the defendant is denied the requested relief.  Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (Vernon Supp. 2005).

          I also believe that an interlocutory appeal from the extended report is the proper time to complain that the trial court erred in determining that the initial report was an expert report upon which an extension could be based.  In this case, the Wroten Report is so clearly not a section 74.351(r)(6) expert report that it cannot support an extended report.  (The only other alternative is that we go back to determining this issue by mandamus, a result the legislature was clearly trying to limit by this legislation.)

          Otherwise, as in this case, the trial court simultaneously denied a motion to dismiss and granted an extension request.  As the majority notes, one portion of the interlocutory appeal provisions would allow the defendant to appeal the denial of the motion to dismiss.  Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (Vernon Supp. 2005) (“denies all or part of the relief sought under Section 74.351(b)”).  But the same statute has an exception that an interlocutory “appeal may not be taken from an order granting an extension.”  Id.  So to give effect to all parts of the statute, the exception requires that the defendant must wait and appeal objections to the extended report, including that there was never a report upon which the extension could be based.  See Academy of Oriental Medicine, L.L.C. v. Andra, 173 S.W.3d 184, 188 n. 7 (Tex. App.—Austin 2005, no pet.) (“…the exception in 51.014(a)(9) clarifies that an interlocutory appeal is only available when the court had denied a defendant’s motion but had not granted the plaintiff additional time to cure deficiencies.”)

          We have the jurisdiction to determine in an interlocutory appeal whether an expert report served pursuant to a 30 day extension complies with the requirements for an expert report.  A deficient report that is served after a 30 day extension is the equivalent of no timely served report and the denial of relief sought pursuant to section 74.351(b) allows the healthcare provider to bring an interlocutory appeal.  Tex. Civ. Prac. Rem. Code Ann. §51.014(a)(9) (Vernon Supp. 2005).  That interlocutory appeal can challenge whether the report was prepared by a person qualified as an expert and whether the report meets the requirements of Texas Civil Practice and Remedies Code section 74.

          The majority errs in dismissing the interlocutory appeal as to the adequacy of the expert report upon the basis that an interlocutory appeal is not available to review the denial of a “challenge to the adequacy of an expert report.”

          If the extended report served after the grant of an extension is deficient, there is no expert report filed for purposes of section 74.351(a) and the medical service provider must then bring a motion to dismiss within 21 days under section 74.351(b).  The denial of the motion to dismiss after the allegedly defective extended report was served, simply means that the trial court has determined the extended report is a timely served report under section 74.351(a) and, thus, the defendant has been denied relief requested pursuant to section 74.351(b).

          One way to think about it is that the original deficient report is replaced by the second allegedly deficient report – and if the second report is indeed deficient, no expert report has been timely served under section 74.351(a).  Alternatively, it could be viewed as the 120 day period is tolled until 30 days after the plaintiff gets notice that the trial court determined the first report is deficient and granted a 30 day extension.

          Where the majority miscued is determining that the appeal is pursued because the relief requested by the defendant under section 74.351(l) was denied.  The relief that was denied was sought by the defendant under section 74.351(b) and, thus, the interlocutory appeal is provided for by section 51.014(a)(9).  Whereas the section the majority relies upon, section 74.351(l), applies whether it is an extended report or not, and its application is not related to the denial of relief requested by a defendant.  Tex. Civ. Prac. & Rem. Code Ann. § 74.351(l) (Vernon Supp. 2005).  It simply tells the trial court what it must do if it determines a report is not adequate.  And section 51.014(a)(10) gives the plaintiff the ability to bring an interlocutory appeal of that determination – that the report is inadequate.  Id. § 51.014(a)(10).

          Because the majority dismisses the appeal for want of jurisdiction when we should be reviewing the merits of the issues, I respectfully dissent.

                                                          TOM GRAY

                                                          Chief Justice

Dissenting opinion delivered and filed April 5, 2006

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[1]   I limit the majority’s holding to this description because this is the scope of the issue as presented in this case. Their stated holding is that a defendant has no right of interlocutory appeal if the court denies the defendant’s challenge to the adequacy of an expert report because section 51.014(a)(10) only grants the right of interlocutory appeal to a plaintiff if the trial court grants the relief sought by a defendant challenging the adequacy of an expert report.  Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(10) (Vernon Supp. 2005).  They do not address why the defendant cannot bring an interlocutory appeal under section 51.014(a)(9) for the denial of the relief requested.  Id. § 51.014(a)(9).