in Re VB Harlingen Holdings D/B/A Valley Baptist Medical Center ( 2019 )

NUMBER 13-19-00131-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE VB HARLINGEN HOLDINGS
D/B/A VALLEY BAPTIST MEDICAL CENTER
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Hinojosa
Memorandum Opinion by Justice Benavides 1
In this original proceeding, relator VB Harlingen Holdings d/b/a Valley Baptist
Medical Center contends that the trial court abused its discretion by denying relator’s
motion for leave to designate a responsible third party. See generally TEX. CIV. PRAC. &
REM. CODE ANN. § 33.004. Because we conclude that relator failed to comply with its
obligations to timely disclose that Dr. Noemi Infante might be designated as a responsible
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); see
also id. R. 47.4 (distinguishing opinions and memorandum opinions).
third party under the civil practice and remedies code, we deny the petition for writ of
mandamus. See id. § 33.004(d).
I. BACKGROUND
This is an alleged medical malpractice claim brought by plaintiff Lynda Noble,
individually and as next friend of Aaralynn Noble Hanline, a minor, against relator. On
March 31, 2015, Lynda was admitted to the labor and delivery unit at the relator’s hospital
with gestational hypertension by her obstetrician, Dr. Infante. On April 2, 2015, Dr. Infante
ordered Lynda transferred to the Mother–Baby unit for observation. On April 3, 2015,
Lynda suffered a concealed placental abruption. Dr. Mitchell Hughston was on call for
Dr. Infante and ordered Lynda transferred to the labor and delivery unit where he
performed a cesarean section. Aaralynn suffered catastrophic brain damage.
On March 22, 2017, Lynda filed a medical malpractice case against relator. She
alleged, inter alia, that the nurses working at relator’s hospital were negligent. Her petition
included requests for disclosure which were due “within 50 days of the service of this
request.” See TEX. R. CIV. P. 194.3 (providing that a defendant served with requests for
disclosure before its answer is due “need not respond until 50 days after service of the
request”). Relator was served with the lawsuit on April 3, 2017. Relator filed its answer
to the lawsuit on or about April 24, 2017 and filed its responses to Lynda’s requests for
disclosure on or about September 6, 2017. Relator filed its first supplemental responses
to the requests for disclosure on or about September 21, 2018. Neither the relator’s
original responses to the requests for disclosure nor its first supplemental responses
identified any person who might be designated as a responsible third party. See id. R.
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194.2(l) (allowing requests for disclosure seeking “the name, address, and telephone
number of any person who may be designated as a responsible third party”).
On November 20, 2018, relator filed a motion to designate Dr. Infante as a
responsible third party. According to the scheduling order in place at this time, the
deadline for the plaintiff and defendant to designate experts and provide reports had
passed on August 21, 2018 and September 21, 2018, respectively, and the deadline for
the joinder of parties had expired on October 22, 2018. Relator’s motion for leave to
designate Dr. Infante stated, in relevant part:
. . . This is a healthcare liability claim. Plaintiffs allege nurses working at
Valley Baptist Medical Center were negligent in their care of Lynda Noble
from March 31, 2015 through April 3, 2015.
On March 31, 2015, Ms. Noble was admitted to the Labor and Delivery Unit
of Valley Baptist Medical Center by her OBGYN, Dr. Noemi Infante, for
gestational hypertension. The Labor & Delivery Unit typically handles
antepartum patients, including those at higher risk due to gestational
hypertension. However, on April 2, 2015, Dr. Infante ordered that Ms. Noble
be transferred to the Mother–Baby Unit for observation (the Mother–Baby
Unit typically handles postpartum patients). Additionally, Dr. Infante
ordered that while Ms. Noble was [in] the Mother–Baby Unit, a Non-Stress
Test be performed daily to determine the fetal heart rate. These two orders
were the sole decision of Dr. Infante. They were also allegedly negligent,
according to Plaintiffs’ experts.
At some point on April 3, 2015, while on the Mother–Baby Unit, Ms. Noble
experienced a concealed placental abruption. Ms. Noble was subsequently
ordered to be transferred to the Labor & Delivery Unit by Dr. Hughston, who
was on call for Dr. Infante. After Ms. Noble was transferred to the Labor &
Delivery Unit, an emergency cesarean section was performed by Dr.
Hughston. The baby, Aaralynn Noble Hanline, was born with catastrophic
brain injuries.
Plaintiffs’ experts have opined Ms. Noble should have never been
transferred to the Mother–Baby Unit. According to Plaintiff’s experts, such
decision was inappropriate and was an alleged proximate cause of
Plaintiff’s injuries.
....
3
Dr. Infante is a responsible third party because she caused or contributed
to cause the alleged injuries for which Plaintiff seeks recovery of damages.
Accordingly, Valley Baptist Medical Center seeks formal designation of
Noemi Infante, M.D. as a responsible third party pursuant to Section 33.004
of the Texas Civil Practices and Remedies Code.
(Footnote omitted). Relator supported its motion to designate Dr. Infante with the expert
report of Lindsay B. McDevitt, a registered nurse. McDevitt’s report stated, in part, that:
Noble was not an appropriate candidate for transfer to the antepartum floor
with severe preeclampsia and the nurses did not advocate for her in this
matter. She was placed in a six patient to one nurse assignment which
does not meet AWHONN[2] safe staffing guidelines for a patient receiving
Magnesium Sulfate. She did not receive appropriate care due to this and
treatment was delayed.
McDevitt’s report did not identify Dr. Infante by name or otherwise indicate negligence on
the part of any treating physicians. On this same date, relator identified Dr. Infante for
the first time as a potentially responsible third party in its second supplemental responses
to Lynda’s requests for disclosure.
Lynda filed an objection to relator’s motion for leave to designate a responsible
third party. She objected to the motion as untimely “because the motion was filed after
the limitations period expired against Dr. Noemi Infante, and defendant did not timely
disclose that this person may be designated as a responsible third party.” Lynda further
objected that relator did not plead enough facts about Dr. Infante’s alleged responsibility
to satisfy the pleading requirements of the Texas Rules of Civil Procedure.
Relator filed a response to Lynda’s objection addressing both the timeliness of the
designation and the sufficiency of its pleading. It argued that its motion for leave was
timely because limitations had not run on Aaralynn’s claims. Relator asserted that the
2 AWHONN stands for the “Association of Women’s Health, Obstetric and Neonatal Nurses.”
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minor child had until April 3, 2035 to file suit against Dr. Infante, citing Texas Civil Practice
and Remedies Code § 74.251(a) and Adams v. Gottwald, 179 S.W.3d 101, 103 (Tex.
App.—San Antonio 2005, pet. denied) (applying the open-courts provision of the Texas
Constitution to § 74.251). Relator asserted that the designation of Dr. Infante as a
responsible third party prior to the expiration of the limitations period for Lynda’s claims
was impossible because limitations as to her claims had expired on April 3, 2017, and
Lynda’s first expert report was not served on relator until April 27, 2017. See TEX. CIV.
PRAC. & REM. CODE ANN. § 74.351(s) (providing that discovery in a health care liability
claim is generally stayed, with specified exceptions, until the claimant has served the
required expert report and curriculum vitae). Relator also asserted that it was unaware
of Dr. Infante’s potential fault until it received the expert reports from Lynda’s nursing
experts, McDevitt and registered nurse Heidi M. Shinn, which were served on relator on
August 20, 2018, in Lynda’s first supplemental responses to requests for disclosure and
designation of experts. Relator supported its response to Lynda’s objection with
McDevitt’s report and the expert report prepared by Shinn. Shinn’s report stated that “[i]n
allowing transfer of this high-risk patient [from] the labor and delivery unit to the Mother–
Baby Unit, the nurses breached the standard of care. Lynda Noble was not an
appropriate candidate to leave a staffing ratio of 1:1 or 1:2 to a unit which self-reports as
a ratio of 1:6.” Shinn’s report did not include any reference to Dr. Infante or any other
physician. Relator asserted that:
To be clear, Defendant is not saying Dr. Infante was negligent; however,
Plaintiff’s experts are offering and will offer evidence alleging that Dr. Infante
was negligent. Based on the logic of Plaintiff’s experts—but for Dr. Infante’s
allegedly improper order to transfer, the nurses would not have been
allegedly negligent in their omission in not advocating against the transfer.
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Lynda filed a sur-reply to the relator’s response. She alleged, inter alia, that relator
had sufficient information to make a timely designation insofar as it investigated the facts
surrounding the incidents made the basis of the suit immediately after they occurred and
took written statements from its nurses on April 6, 2015. She also asserted that she gave
notice to relator on January 16, 2017 that she would be filing a medical malpractice claim.
See id. § 74.051(c) (“Notice given as provided in this chapter shall toll the applicable
statute of limitations to and including a period of 75 days following the giving of the notice,
and this tolling shall apply to all parties and potential parties.”). She further alleged that
her expert reports did not identify Dr. Infante as a potentially responsible party and noted
that the relator’s own internal records indicated that Dr. Hughston, not Dr. Infante, had
ordered daily non-stress tests.
On January 9, 2019, the trial court held a hearing on the relator’s motion to
designate Dr. Infante as a responsible third party and ultimately denied the relator’s
motion to designate by order signed on January 10, 2019. The trial court’s order does
not specify the rationale for its decision. Minor child Aaralynn subsequently passed away
on February 18, 2019.
This original proceeding ensued on March 29, 2019. By two issues, relator
contends that: (1) the trial court’s denial of relator’s motion for leave to designate
responsible third party, without opportunity to replead, was a clear abuse of discretion;
and (2) relator lacks an adequate remedy of law. Relator argues that:
This is a simple case where the trial court clearly abused its discretion in
denying Defendant’s Motion for Leave to Designate Responsible Third
Party. The trial court, although not providing [an] explanation for its ruling,
presumably based its decision on the Plaintiff’s statute of limitations
argument. However, the statute of limitations for Plaintiff Aaralynn Noble
Hanline, as a minor, for potential claims against Noemi Infante, M.D., has
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not yet expired—making Defendant’s designation timely per TEX. CIV. PRAC.
& REM. CODE § 33.004(d). Because the statute of limitations as to the minor
Plaintiff’s claims has not run, this is a clear abuse of discretion. As to
Plaintiff Lynda Noble’s statute of limitations for potential claims against
Noemi Infante, M.D., as an individual, it was impossible for Defendant to
disclose Dr. Infante as a responsible third party prior to the statute of
limitations expiring because the suit was served on Defendant the same
day the statute of limitations expired. Case law is absolute that, in a
situation such as this, when a plaintiff files suit on the eve of limitations,
Defendant cannot be obligated under § 33.004(d) to somehow designate a
responsible third party prior to statute of limitations expiring. Further, even
if the trial court based its decision [on] an erroneous finding that Defendant
pled insufficient facts, Defendant was not granted leave to replead as
required by § 33.004(g).
This Court requested and received a response to the petition for writ of mandamus
from Lynda. She asserts that relator began investigating the facts surrounding this case
on April 6, 2015, when it began taking statements from the nurses involved in caring for
the plaintiff. She also asserts that relator received notice of her lawsuit on January 19,
2017, and the statute of limitations did not expire for her individual claims until June 17,
2017, not April 3, 2017, because she received the 75-day extension authorized by the
medical liability act. See id. § 74.051(a), (c). She contends that the statute of limitations
for Aaralynn’s claims ran on June 17, 2017, in accordance with § 74.251(c), because
Aaralynn died as a result of relator’s negligence on February 18, 2019. She further
alleges, inter alia, that there was no evidence supporting relator’s designation of Dr.
Infante because nurses McDevitt and Shinn cannot provide expert testimony regarding
the negligence of a doctor. Lynda vehemently asserts that Dr. Infante was not responsible
for the damages at issue. 3
3 Lynda’s response to the petition for writ of mandamus includes materials which were not
presented to the trial court, including an April 30, 2019 expert report by an obstetrician, Dr. Steven H.
Eisinger, stating that Dr. Infante was not negligent. We do not consider materials that were not submitted
to the trial court in our mandamus review. In re Cypress Tex. Lloyds, 437 S.W.3d 1, 8 n.6 (Tex. App.—
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II. STANDARD FOR MANDAMUS REVIEW
To obtain relief by writ of mandamus, a relator must establish that an underlying
order is a clear abuse of discretion and that no adequate appellate remedy exists. In re
Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding);
Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding). Under this
standard of review, we defer to the trial court’s factual determinations that are supported
by evidence, but we review the trial court’s legal determinations de novo. See In re Labatt
Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding). An abuse of
discretion occurs when a trial court’s ruling is arbitrary and unreasonable or is made
without regard for guiding legal principles or supporting evidence. In re Nationwide, 494
S.W.3d at 712; Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). A trial court
abuses its discretion when it fails to analyze or apply the law correctly or apply the law
correctly to the facts. In re Nationwide, 494 S.W.3d at 712; In re H.E.B. Grocery Co., 492
S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam).
We determine the adequacy of an appellate remedy by balancing the benefits of
mandamus review against the detriments. In re Essex Ins. Co., 450 S.W.3d 524, 528
(Tex. 2014) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 136. In
deciding whether the benefits of mandamus outweigh the detriments, we weigh the public
and private interests involved, and we look to the facts in each case to determine the
adequacy of an appeal. In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 313 (Tex. 2010)
Corpus Christi–Edinburg 2011, orig. proceeding); In re Nabors, 276 S.W.3d 190, 194 n.5 (Tex. App.—
Houston [14th Dist.] 2009, orig. proceeding).
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(orig. proceeding); In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 469 (Tex. 2008) (orig.
proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d at 136–37.
The Texas Supreme Court has held that mandamus may be appropriate to review
an order denying a defendant’s motion to designate a responsible third party. In re
Coppola, 535 S.W.3d 506, 507–09 (Tex. 2017) (orig. proceeding) (per curiam); see In re
Dawson, 550 S.W.3d 625, 627 (Tex. 2018) (orig. proceeding) (per curiam). This is
because allowing a case to proceed to trial despite the erroneous denial of a responsible-
third-party designation would skew the proceedings, potentially affect the outcome of the
litigation, and compromise the presentation of the relator’s defense in ways unlikely to be
apparent in the appellate record. In re Coppola, 535 S.W.3d at 509. Accordingly, the
relator ordinarily need only establish that the trial court abused its discretion in denying a
timely filed motion to designate a responsible third party to demonstrate entitlement to
mandamus relief. Id. at 510; see In re Dawson, 550 S.W.3d at 630.
III. THIRD PARTY RESPONSIBILITY
The Texas proportionate responsibility statute provides a framework for
apportioning percentages of responsibility in the calculation of damages for any cause of
action based on tort in which more than one person or entity, including the plaintiff, is
alleged to have caused or contributed to causing the harm for which the recovery of
damages is sought. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 33.002(a)(1), 33.003; see
also In re Manon, No. 04-18-00311-CV, 2018 WL 2943562, at *2 (Tex. App.—San
Antonio June 13, 2018, orig. proceeding) (mem. op.). In accordance with this framework,
the Texas Civil Practice and Remedies Code permits defendants to designate responsible
third parties, which it defines as persons who are “alleged to have caused or contributed
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to causing in any way the harm for which recovery of damages is sought,” whether by (1)
negligent act or omission, (2) any defective or unreasonably dangerous product, (3) by
other conduct or activity that violates an applicable legal standard, or (4) by any
combination of these. TEX. CIV. PRAC. & REM. CODE ANN. § 33.011(6); see also id. §
33.004(a); Galbraith Eng’g Consultants, Inc., v. Pochucha, 290 S.W.3d 863, 868 (Tex.
2009).
A defendant may designate a person as a responsible third party by filing a motion
for leave to designate with the trial court. TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(a).
A motion for leave to designate “must be filed on or before the 60th day before the trial
date unless the court finds good cause to allow the motion to be filed at a later date.” Id.;
In re Bustamante, 510 S.W.3d 732, 735 (Tex. App.—San Antonio 2016, orig. proceeding).
A defendant may not designate a person as a responsible third party after the applicable
limitations period has expired with respect to that person “if the defendant has failed to
comply with its obligations, if any, to timely disclose that the person may be designated
as a responsible third party under the Texas Rules of Civil Procedure.” TEX. CIV. PRAC.
& REM. CODE ANN. § 33.004(d).
The trial court “shall” grant leave to designate the named person as a responsible
third party unless another party files an objection on or before the fifteenth day after
service of the motion and the objecting party establishes that “the defendant did not plead
sufficient facts concerning the alleged responsibility of the person to satisfy the pleading
requirement of the Texas Rules of Civil Procedure.” Id. § 33.004(f), (g)(1). The standard
for designating a potentially responsible third party is fair notice pleading under the Texas
Rules of Civil Procedure. In re Bustamante, 510 S.W.3d at 737; In re CVR Energy, Inc.,
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500 S.W.3d 67, 80 (Tex. App.—Houston [1st Dist.] 2016, orig. proceeding); see also In
re Manon, 2018 WL 2943562, at *3 (stating that the pleading requirements for designating
a responsible third party “are not stringent”); In re Greyhound Lines, Inc., No. 05–13–
01646–CV, 2014 WL 1022329, at *2 (Tex. App.—Dallas Feb. 21, 2014, orig. proceeding)
(mem. op.) (same).
A pleading is sufficient when “an opposing party can ascertain from the pleading
the nature, basic issues, and the type of evidence that might be relevant to the
controversy.” Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007); see TEX. R. CIV. P. 47(a);
In re Bustamante, 510 S.W.3d at 737; In re CVR Energy, Inc., 500 S.W.3d at 80. In
determining whether to grant a motion for leave to designate, the trial court is “restricted
to evaluating the sufficiency of the facts” pleaded by the movant and is “not permitted to
engage in an analysis of the truth of the allegations or consider evidence on [the third
party’s] ultimate liability.” In re Unitec Elevator Servs. Co., 178 S.W.3d 53, 62 (Tex.
App.—Houston [1st Dist.] 2005, orig. proceeding); see also In re Manon, 2018 WL
2943562, at *3; In re Lewis Casing Crews, Inc., No. 11-14-00137-CV, 2014 WL 3398170,
at *2 (Tex. App.—Eastland July 10, 2014, orig. proceeding) (mem. op.); In re Greyhound
Lines, Inc., 2014 WL 1022329, at *2.
If a pleading regarding designation of a responsible third party is deficient, the trial
court lacks discretion to deny the motion to designate without affording the movant an
opportunity to replead. In re Coppola, 535 S.W.3d at 508; see TEX. CIV. PRAC. & REM.
CODE ANN. § 33.004(g); In re Smith, 366 S.W.3d 282, 288 (Tex. App.—Dallas 2012, orig.
proceeding); see also In re Manon, 2018 WL 2943562, at *4. The movant need not make
a specific request for time to replead. In re Smith, 366 S.W.3d at 288; see also In re
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Manon, 2018 WL 2943562, at *4. Further, “section 33.004 does not contain a futility
exception to its rule that the movant must be given an opportunity to replead.” In re Smith,
366 S.W.3d at 286. Thus, the objecting party bears the burden of showing that the
designating party was given leave to replead before the trial court has discretion to deny
the motion for leave to designate. Id. at 287; see TEX. CIV. PRAC. & REM. CODE ANN. §
33.004(g)(2).
Finally, a party is entitled to challenge the sufficiency of evidence supporting the
designation of a responsible third party after “adequate” time for discovery:
After adequate time for discovery, a party may move to strike the
designation of a responsible third party on the ground that there is no
evidence that the designated person is responsible for any portion of the
claimant’s alleged injury or damage. The court shall grant the motion to
strike unless a defendant produces sufficient evidence to raise a genuine
issue of fact regarding the designated person’s responsibility for the
claimant’s injury or damage.
TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(l); see Flack v. Hanke, 334 S.W.3d 251, 262
(Tex. App.—San Antonio 2010, pet. denied); see also In re Transit Mix Concrete &
Materials Co., No. 12-13-00364-CV, 2014 WL 1922724, at *3 (Tex. App.—Tyler May 14,
2014, orig. proceeding) (mem. op.).
IV. ANALYSIS
This original proceeding presents two basic issues: the timeliness of relator’s
designation of Dr. Infante regarding the expiration of the statute of limitations and the
sufficiency of the relator’s designation in terms of the sufficiency of its pleading. Because
we consider it to be dispositive, we first address the parties’ arguments regarding the
timeliness of the designation.
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As noted, a defendant may not designate a person as a responsible third party
after the statute of limitations has expired if the defendant failed to “comply with its
obligations, if any, to timely disclose that the person may be designated as a responsible
third party under the Texas Rules of Civil Procedure.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 33.004(d). The timeliness limitation on a defendant’s ability to designate responsible
third parties is a procedural safeguard designed to prevent a defendant from “‘belatedly
pointing its finger at a time-barred responsible third-party against whom the plaintiff has
no possibility of recovery.’” In re Bustamante, 510 S.W.3d at 736 (quoting In re CVR
Energy, Inc., 500 S.W.3d at 73).
The civil practice and remedies code does not define the term “timely” in this
context. In re Bustamante, 510 S.W.3d at 736. In short, however, § 33.004(d) requires
a defendant to disclose a potential responsible third party before the expiration of the
statute of limitations “if that is possible.” Id. In this regard, Rule 194.2 of the Texas Rules
of Civil Procedure obligates a party, upon request, to disclose “the name, address, and
telephone number of any person who may be designated as a responsible third party.”
TEX. R. CIV. P. 194.2(l). The disclosure must be complete and must be “based on all
information reasonably available” to the party at the time. TEX. R. CIV. P. 193.1; see In re
CVR Energy, Inc., 500 S.W.3d at 74.
The Texas Supreme Court recently granted mandamus relief when the trial court
allowed a defendant to designate a responsible third party after the expiration of
limitations when the defendant’s initial discovery responses were not adequate to notify
the plaintiff that it might designate a responsible third party. See In re Dawson, 550
S.W.3d at 628–30. In so ruling, the court stated:
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The rules require parties to timely respond to written discovery with “a
complete response, based on all information reasonably available to the
responding party or its attorney at the time the response is made.” [TEX. R.
CIV. P.] 193.1. The rules also require a party to supplement a response
when it learns the response “was incomplete or incorrect when made” or
has become so since it was made. Id. 193.5(a). And the rules don’t allow
a party to drag its feet—the supplemental or amended response must be
provided “reasonably promptly after the party discovers the necessity for
such a response.” Id. 193.5(b).
Id. at 629–30. With these tenets in mind, we turn to the facts of this case.
Section 74.251 provides the statute of limitations for a health care liability claim.
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.251(a). This section requires the cause to
be filed “within two years from the occurrence of the breach or tort or from the date the
medical or health care treatment that is the subject of the claim” is completed; provided
that “minors under the age of 12 years shall have until their 14th birthday in which to file,
or have filed on their behalf, the claim.” Id. Disregarding any impact that Aaralynn’s death
may have on our analysis because it occurred after the trial court ruled on the motion to
designate, the statute of limitations had not expired as to Aaralynn’s claims at the time
relator filed its motion to designate Dr. Infante. 4 However, utilizing the 75-day extension
period provided by civil practice and remedies code § 74.051(a),(c), limitations expired as
to Lynda’s claims on June 17, 2017, well before relator filed its motion to designate Dr.
Infante. So, the statute of limitations had expired as to one plaintiff, Lynda, but not as to
the other plaintiff, minor Aaralynn, when relator filed its motion to designate Dr. Infante as
a responsible third party.
4 Section 74.251(a)’s tolling provision for minors under age 12 does not apply to an adult’s wrongful-
death claim based on the death of a minor under 12 years of age. See Baptist Mem’l Hosp. Sys. v.
Arredondo, 922 S.W.2d 120, 121 (Tex. 1996) (per curiam) (interpreting former § 10.01); Durham v.
Children’s Med. Ctr. of Dallas, 488 S.W.3d 485, 490 (Tex. App.—Dallas 2016, pet. denied).
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We determine whether relator failed to comply with its obligations, if any, to timely
disclose that Dr. Infante might be designated as a responsible third party as to Lynda’s
claims. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(d). Here, the alleged date of
malpractice is April 3, 2015. The lawsuit, including requests for disclosure requiring a
response within 50 days of service, was filed on March 22, 2017, and relator was served
with the lawsuit on April 4, 2017. See TEX. R. CIV. P. 194.3. Relator filed its answer to
the lawsuit on or about April 24, 2017. According to the 50-day deadline for relator to file
its responses to Lynda’s requests for disclosure, the relator’s responses to the requests
for disclosure were due on May 24, 2017, prior to the expiration of the limitations period
on June 17, 2017, but relator did not file its responses until on or about September 6,
2017. The parties do not address the discrepancy between when the responses to
requests for disclosure were ostensibly due and when they were filed. Relator did not file
the motion for leave to designate Dr. Infante until November 20, 2018, fourteen months
after filing its initial responses to the requests for disclosure. Relator filed its motion for
leave to designate well past the deadline in the trial court’s scheduling order for the
designation of experts and the provision of expert reports, and past the deadline for
completion of discovery.
Relator explains this delay by claiming that Lynda’s expert nursing reports, served
on relator on August 18, 2018, provided its initial indication that Dr. Infante was a
potentially responsible third party and that it had no idea that she might have been
negligent prior to reviewing these reports. It strains credulity to posit that relator was
wholly unaware, prior to its review of these reports, that Lynda’s treating physician might
be a potentially responsible third party in a suit arising from alleged medical malpractice
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at its own hospital. Moreover, and significantly, the nursing reports at issue do not
mention Dr. Infante or otherwise discuss any alleged negligence on the part of a
physician. In fact, neither Lynda nor relator contend that Dr. Infante was negligent.
Relator even advised the trial court that, “[t]o be clear, [relator] is not saying Dr. Infante
was negligent.” See TEX. CIV. PRAC. & REM. CODE ANN. § 33.011(6) (defining a
responsible third party as one “who is alleged to have caused or contributed to causing
in any way the harm for which recovery of damages is sought”). And finally, relator waited
three additional months after receiving these reports on August 20, 2018 before filing its
motion for leave to designate Dr. Infante on November 20, 2018.
The sequence of events here is replete with delay. It seems clear that relator’s
responses to the requests for disclosure regarding the designation of a responsible third
party were not complete and “based on all information reasonably available” at the time.
TEX. R. CIV. P. 193.1; see In re Dawson, 550 S.W.3d at 628–30; In re CVR Energy, Inc.,
500 S.W.3d at 74. Accordingly, we conclude that the trial court did not abuse its discretion
denying relator’s motion for leave to designate Dr. Infante after the statute of limitations
had expired as to Lynda’s claims because relator failed to “comply with its obligations, if
any, to timely disclose that the person may be designated as a responsible third party
under the Texas Rules of Civil Procedure.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 33.004(d). Having so concluded, we need not address the sufficiency of relator’s
pleadings concerning the alleged responsibility of Dr. Infante. See TEX. R. APP. P. 47.4.
V. CONCLUSION
The Court, having examined and fully considered the petition for writ of mandamus,
the response, and the applicable law, is of the opinion that the relator has not met its
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burden to obtain mandamus relief. Accordingly, we deny the petition for writ of
mandamus.
GINA M. BENAVIDES,
Justice
Delivered and filed the
27th day of June, 2019.
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