Corvetta Y. Daniel, by Her Next Friend, Beverly Jones v. Timothy L. Beck, M.D. and Trinity Mother Frances Health System ( 2002 )

NO. 12-01-00328-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CORVETTA Y. DANIEL, BY HER NEXT

§ APPEAL FROM THE 241ST

FRIEND, BEVERLY JONES,

APPELLANT

V.

§ JUDICIAL DISTRICT COURT OF

TIMOTHY L. BECK, M.D. AND TRINITY

MOTHER FRANCES HEALTH SYSTEM,

APPELLEES

§ SMITH COUNTY, TEXAS

Appellant Corvetta Y. Daniel, by her next friend, Beverly Jones, appeals the trial court's dismissal of her claims against Appellees Timothy L. Beck, M.D. and Trinity Mother Frances Health System. Daniel raises two issues on appeal. We affirm.

Background  

On January 12, 1999, Corvetta Daniel ("Daniel") underwent surgery on her left foot at Trinity Mother Frances Hospital ("TMFH") to remove a foreign object. Dr. Timothy Beck ("Dr. Beck") was the attending physician. Daniel's right foot was prepared for surgery, and Dr. Beck made an incision on her right foot to remove the object. Dr. Beck soon realized that he had opened the wrong foot and closed the incision on Daniel's right foot. Daniel's left foot was then prepared for surgery and Dr. Beck successfully removed the object.

On January 16, 2001, Corvetta Daniel, through her next friend, Beverly Jones, brought a medical malpractice action against Dr. Beck and TMFH. In support of her allegations and in order to comply with the requirements of the Medical Liability and Insurance Improvement Act ⁽¹⁾ ("the Act"), Daniel filed an expert report prepared by Dr. Martin M. Pomphrey, Jr. with the district clerk on April 17, 2001. Although Daniel's counsel filed the report with the district clerk, he failed to attach Dr. Pomphrey's curriculum vitae and also failed to provide a copy of the report and curriculum vitae to counsel for Dr. Beck and TMFH. Believing that Daniel had failed to provide any report and curriculum vitae, Dr. Beck and TMFH filed motions to dismiss. In response, Daniel filed a "Motion for Extension of Time to File Expert Report," contending that she was entitled to a thirty-day grace period in which to file Dr. Pomphrey's curriculum vitae and provide a copy of his report and curriculum vitae to counsel for Dr. Beck and TMFH because her failure to file the curriculum vitae and provide the documents to defense counsel was not the result of conscious indifference, but was the result of a mistake.

On September 6, 2001, the trial court held a hearing on Dr. Beck's and TMFH's motions to dismiss. The trial court granted the motions and denied Daniel's motion for extension of time. Daniel now appeals, raising two issues. ⁽²⁾

Adequacy of Expert Report

  In her first issue, Daniel argues that the trial court abused its discretion in dismissing her case because the expert report she filed with the court complied with the Act's requirements.  

Requirements for Expert Reports  

In medical malpractice cases, plaintiffs must, within 180 days, either provide each defendant physician and healthcare provider with an expert report and the expert's curriculum vitae, or nonsuit the claims. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d) (Vernon Supp. 2002). An "expert report" is defined as a written report that provides a fair summary of (1) the expert's opinions as of the date of the report regarding applicable standards of care, (2) the manner in which the care rendered by the physician or healthcare provider failed to meet the standards, and (3) the causal relationship between that failure and the injury, harm, or damages claimed. Id. § 13.01(r)(6). If a plaintiff fails within the time allowed to provide the expert reports and curriculum vitae, or to nonsuit the case, the trial court must sanction the plaintiff by dismissing the case with prejudice, awarding costs and attorney's fees to the defendant, and ordering the forfeiture of any applicable cost bond necessary to pay that award. Id. § 13.01(e). If a plaintiff timely provides a defendant with a document that he or she believes is an appropriate expert report, the defendant can move to challenge the adequacy of the expert report and argue that the report does not represent a good faith effort to comply with the statutory requirements for an expert report. To constitute a good-faith effort, the report must inform the defendant of the specific conduct the plaintiff has called into question and provide a basis for the trial court to determine that the claims have merit. American Transitional Care v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). A report that only states the expert's conclusions about the standard of care, breach, and causation does not fulfill these two purposes. Id. Nor can a report meet these purposes and thus constitute a good faith effort if it omits any of the statutory requirements. Id. The court should look no further than the report in conducting a good faith inquiry. Id. at 878. If a trial court determines that an expert report does not meet these statutory requirements and the plaintiff's time for filing a report has passed, the court must dismiss with prejudice the claims against the defendant who challenged the report. Id. § 13.01(e). A trial court's determination regarding the adequacy of an expert report will be reviewed under an abuse of discretion standard. See Palacios, 46 S.W.3d at 877.

Report of Dr. Martin M. Pomphrey, Jr.

  In order to comply with the Act's requirements, Daniel submitted the report of Dr. Martin M. Pomphrey, Jr., a board certified orthopedic surgeon. Before he wrote the report, Dr. Pomphrey reviewed the preoperative, operative, and postoperative notes Dr. Beck dictated to document his treatment of Daniel's condition. Dr. Pomphrey noted that an "error was made and a surgical approach was made on the wrong foot."

Dr. Pomphrey opines that

[o]perating on the wrong extremity or wrong site is certainly an error and would constitute a breach of the standard of medical care. On the other hand, there was no tissue removed, no loss of limb, and I would expect no permanent damage or impairment to result from a small incision on the incorrect foot. I therefore feel that it would be difficult to make much of a case out of this particular

event. . . . I think this case would have very little merit.   

Dr. Pomphrey's report adequately addresses the standard of care and the manner in which Dr. Beck's treatment failed to meet that standard when he "operat[ed] on the wrong extremity or wrong site." However, Dr. Pomphrey does not discuss the third element of an adequate expert report: the causal relationship between Dr. Beck's conduct and Daniel's injury, harm or damages claimed. In fact, Dr. Pomphrey's opinion omits any mention of Daniel's alleged injury. His report establishes only that no damages were sustained, and we cannot presume that damages were sustained when there is no expert opinion on any causal connection between the breach of the standard of care and damages. An opinion solely addressing a breach of the standard of care is inadequate. Dr. Pomphrey's report fails to state any causal relationship between Dr. Beck's failure to meet those standards of care and Daniel's injury, harm, or damages claimed; therefore, it cannot be considered a good-faith effort to comply with the statutory requirements for expert reports. See Palacios, 46 S.W.3d at 879. Daniel's first issue is overruled.

Denial of Extension of Time to File Supplemental Report  

Daniel contends that the trial court erred in denying her an extension of time to file a supplemental report that adequately addresses the Act's expert report requirements. We review the trial court's decision to deny a request for a grace period under an abuse of discretion standard. Marquez v. Providence Mem. Hosp., 57 S.W.2d 585, 590 (Tex. App.-El Paso 2001, no pet.); Hargrove v. Denno, 40 S.W.3d 714, 716 (Tex. App.-San Antonio 2001, no pet.).

The defendants argue that once a claimant files a report, no other supplemental reports can be filed in order to constitute a good-faith effort to comply with the Act's requirements. We disagree.

The Dallas, Waco, and Eastland courts have all held that a claimant can cure a deficient report if he or she seeks an extension of time to comply with the Act's requirements. See Whitworth v. Blumenthal, 59 S.W.3d 393, 400 (Tex. App.-Dallas 2001, pet. dism'd by agr.); Hightower v. Saxton, 54 S.W.3d 380, 385 (Tex. App.-Waco 2001, no pet.); Richburg v. Wolf, 48 S.W.3d 375, 378-79 (Tex. App.-Eastland 2001, no pet.). In light of the supreme court's holding in Palacios, we agree with these courts. In Palacios, the court held that a trial court's determination regarding the inadequacy of an expert report will be reviewed under an abuse of discretion standard. See Palacios, 46 S.W.3d at 877. If an expert report does not put the defendant or the trial court on notice of the conduct complained of, section 13.01(l) affords the trial court no discretion but to conclude that the report does not 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. Id. at 880. Palacios therefore holds that if a report is not found to be a "good-faith effort" to comply with the statutory requirements for expert reports, that is the same as if the plaintiff had filed no report at all because the inadequate report does not meet the definition of an "expert report." See Whitworth, 59 S.W.3d at 399 (holding that if a report does not adequately set forth the elements required by statute, it is not, by definition, an "expert report").

If a plaintiff does not adequately comply with the statutory requirements regarding expert reports, he has three avenues to seek more time to comply with the statute and provide a good-faith effort to comply with the Act's requirements. Under subsection (f), the trial court may extend the 180-day period for filing an expert report for an additional thirty days if the motion is filed before the end of the 180-day period and, after a hearing, the trial court finds there is good cause to grant the extension. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(f). Subsection (h) allows parties to make an enforceable, binding agreement to extend the 180-day period if the agreement is reduced to writing, signed and filed with the trial court. Id. § 13.01(h). A plaintiff can also seek additional time to meet the requirements for an expert report under subsection (g), which states:

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 a 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.  

Id. at § 13.01(g).

In the case at bar, before the hearing on the defendants' motions to dismiss but 231 days after the lawsuit was filed, Daniel filed her motion for a thirty-day grace period pursuant to subsections (f) and (g) of section 13.01. Under subsection (f), a motion filed more than 210 days after the date the lawsuit was filed is not timely. See Whitworth, 59 S.W.3d at 397; Landry v. Ringer, 44 S.W.3d 271, 274 (Tex. App.-Houston [14th Dist.] 2001, no pet.). Accordingly, Daniel's motion, to the extent it seeks relief under subsection (f), was untimely because it was filed more than 210 days after she filed her lawsuit.

Daniel further contends that pursuant to subsection (g), she should have been allowed a thirty-day grace period to file a supplemental expert report. A motion for a grace period under subsection (g) is timely if it is filed before a hearing on a motion to dismiss. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(g). Daniel's motion for a subsection (g) grace period was filed one day before the hearing on the defendants' motions to dismiss; therefore, it was timely filed. We now focus on whether Daniel's failure to provide an adequate report was not intentional or due to conscious indifference but rather the result of an accident or mistake.

In order for Daniel to prevail on her subsection (g) motion and be entitled to a thirty-day grace period to file an adequate report, she had to demonstrate that her failure or her attorney's failure to comply with the Act's requirements was accidental and not the result of conscious indifference. Id. To make the required showings, Daniel had to support her argument with evidence. Landry, 44 S.W.3d at 275.

Daniel's motion merely states that her failure to comply with the requirements was not the result of conscious indifference or "malicious intentions" but does not state the reason she did not file an adequate report. Daniel also omits any mention of a mistake in her brief and does not point to anywhere in the record to demonstrate that either she or her attorney was mistaken about the Act's requirements for expert reports. Id. at 276; see also Gutierrez v. Walker, 50 S.W.3d 61 (Tex. App.-Corpus Christi 2001, pet. granted). Therefore, we find that no evidence was offered by Daniel to support her contention that her failure to file an adequate report was the result of an accident and was not due to conscious indifference.

Assuming, arguendo, that the court were to find that Daniel was entitled to a thirty-day grace period in which to file Dr. Pomphrey's curriculum vitae and make his expert report complete, the report would still be inadequate because it does not address the causal connection between the breach of the standard of care and any injuries Daniel suffered. Accordingly, Daniel failed to establish that the trial court abused its discretion in dismissing the case. Daniel's second issue is overruled.

The judgment of the trial court is affirmed.  

JIM WORTHEN

Justice

Opinion delivered October 9, 2002.

Panel consisted of Gohmert, Jr., C.J., Worthen, J., and Griffith, J.  

(DO NOT PUBLISH)

1.

Tex. Rev. Civ. Stat. Ann. art. 4590i (Vernon Supp. 2002).

2.

Daniel presents three issues for review in her brief; however, the body of her argument only addresses two of those issues. Therefore, we will address the two issues properly raised: (1) whether the expert report was sufficient and (2) whether she should have been granted an extension of time to supplement her expert report. See Tex. R. App. P. 38.1(h); Larson v. Family Violence & Sexual Assault Prevention Ctr. of S. Tex., 64 S.W.3d 506, 512 (Tex. App.-Corpus Christi 2001, no pet.)