University of Texas Medical Branch at Galveston, Texas v. Marvin Simmons ( 2009 )

Affirmed and Memorandum Opinion filed December 15, 2009.

In The

Fourteenth Court of Appeals

NO. 14-09-00246-CV

University of Texas Medical Branch at Galveston, Texas, Appellant

V.

Marvin Simmons, Appellee

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Cause No. 08CV0832

MEMORANDUM  OPINION

            In this interlocutory appeal,[1] appellant University of Texas Medical Branch at Galveston, Texas (“UTMB”) challenges the trial court’s order denying its motion to dismiss the health care liability claim[2] of appellee Marvin Simmons.  In its sole issue, UTMB contends that the trial court abused its discretion by denying its motion to dismiss because Simmons failed to attach his expert’s curriculum vitae to the expert report pursuant to Texas Civil Practice and Remedies Code section 74.351.  We affirm.

Background

            On August 8, 2006, Simmons filed suit for medical negligence, gross negligence, and breach of fiduciary duty against UTMB seeking damages for alleged personal injuries arising from the treatment and care he received as a patient of UTMB after he suffered a stroke.  In his petition, Simmons alleged that a portion of his skull was removed after the stroke to relieve pressure on his brain. Simmons alleged that UTMB lost this bone flap, which required a cranioplasty to be performed with a titanium mesh instead of his bone flap.  Among other things, Simmons alleged that UTMB acted negligently by failing to safeguard his bone flap.

            On December 4, 2008, 118 days after Simmons filed suit against UTMB, Simmons served UTMB with an expert report by Dr. Kenneth G. Berliner.  Simmons did not separately attach a curriculum vitae to Dr. Berliner’s report.  On December 29, 2008, UTMB filed its motion to dismiss Simmons’s suit for failure to file a curriculum vitae with Dr. Berliner’s expert report.  UTMB also contended that Dr. Berliner’s report was inadequate because it was conclusory.  According to UTMB, the expert report failed “to adequately outline the applicable standard(s) and explain the causal relationship between that alleged breach of the standard of care and the injury, harm or damages claimed.”

            On February 11, 2009, Simmons served Dr. Berliner’s curriculum vitae on UTMB.  Simmons filed a response to UTMB’s motion to dismiss on February 13, 2009, in which he acknowledged that he inadvertently failed to include Dr. Berliner’s curriculum vitae when he served the expert’s report.  Simmons further asserted that nothing in section 74.351(b) “requires that Mr. Simmons’ claim be dismissed because he did not include his expert’s CV along with his timely served expert report.” Alternatively, Simmons requested that the trial court grant him a 30-day extension to cure any defects in his report pursuant to section 74.351(c), and informed the trial court that he already had cured the defect by serving Dr. Berliner’s curriculum vitae on UTMB.

            UTMB filed its reply on February 17, 2009, arguing that dismissal of Simmons’s suit is mandatory under section 74.351(b) because Simmons failed to serve Dr. Berliner’s curriculum vitae with the export report within 120 days of filing his suit.  UTMB also argued that a 30-day extension would be moot because Simmons failed to timely serve an expert report and curriculum vitae within the statutory deadline. Therefore, UTMB contended that section 74.351(c), which allows a trial court to grant a 30-day extension to cure any deficiency in an expert report, could not be triggered.

            The trial court denied UTMB’s motion to dismiss in an order signed on February 20, 2009.  UTMB appeals the trial court’s order.

Analysis

            In its sole issue, UTMB contends that the trial court abused its discretion by denying its motion to dismiss Simmons’s suit for failure to attach his expert’s curriculum vitae to the expert report pursuant to Texas Civil Practice and Remedies Code section 74.351.

We review a trial court’s denial of a motion to dismiss under section 74.351 for abuse of discretion.  See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Group v. Vicento, 164 S.W.3d 724, 727 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).  To determine whether the trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles.  Larson v. Downing, 197 S.W.3d 303, 304-05 (Tex. 2006) (per curiam); see also Wright, 79 S.W.3d at 52.  When reviewing matters committed to the trial court’s discretion, a court of appeals may not substitute its own judgment for the trial court’s judgment.  Wright, 79 S.W.3d at 52.  A trial court does not abuse its discretion merely because it decides a discretionary matter differently than an appellate court would do so in a similar circumstance.  Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

Section 74.351(a) of the Texas Civil Practice and Remedies Code provides that “[i]n a health care liability claim, a claimant shall, not later than the 120th day after the date the original petition was filed, serve on each party or the party’s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted.”  Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2009).

If a plaintiff in a healthcare liability suit does not serve a timely expert report within 120 days of filing suit, a trial court “shall” grant the defendant’s motion to dismiss the case with prejudice.  Id. § 74.351(b) (Vernon Supp. 2009).  However, “[i]f an expert report has not been served within [120 days] because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency.”  Id. § 74.351(c) (Vernon Supp. 2009).

On appeal, UTMB argues that the trial court abused its discretion by denying its motion to dismiss Simmons’s suit for failure to serve his expert’s curriculum vitae with the expert report within the statutory 120-day deadline pursuant to Texas Civil Practice and Remedies Code section 74.351.  Simmons responds that the trial court did not abuse its discretion when it denied UTMB’s motion to dismiss because “Simmons’ failure to serve his medical expert’s CV separate and apart from his expert report does not mandate dismissal of his claim.”  We agree with Simmons that nothing in the statute requires a curriculum vitae be served as a separate document.

An expert’s qualifications and curriculum vitae may be set out in the body of the expert report, and there is no requirement that the report and the curriculum vitae must be separate documents.  Johnson v. Willens, 286 S.W.3d 560, 564 (Tex. App.—Beaumont 2009, pet. filed); Harris County Hosp. Dist. v. Garret, 232 S.W.3d 170, 177 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Carreras v. Marroquin, No. 13-05-082-CV, 2005 WL 2461744, at *2 (Tex. App.—Corpus Christi Oct. 6, 2005, pet. denied) (mem. op.). Section 74.351(a) merely states that a claimant shall serve “one or more expert reports, with a curriculum vitae of each expert.”  Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a); Garret, 232 S.W.3d at 177.  Section 74.402, which addresses the qualifications of an expert in a suit against a health care provider, also does not contain a requirement that a curriculum vitae be served as a separate document.  Tex. Civ. Prac. & Rem. Code Ann. § 74.402 (Vernon 2005); Garret, 232 S.W.3d at 177.  Thus, nothing in the statute requires that a curriculum vitae be produced as a separate document. 

Further, “[t]he purpose of a curriculum vitae requirement is to permit the trial court to perform its ‘gatekeeper’ function by assessing the qualifications, experience, and expertise of the expert.”  Carreras, No. 13-05-082-CV, 2005 WL 2461744, at *2; see also Raney v. Ashford Hall, No. 05-98-01908-CV, 2002 WL 14354, at *6 (Tex. App.—Dallas Jan. 7, 2002, pet. denied) (not designated for publication).  In the trial court, UTMB objected to the failure to serve a separate curriculum vitae with the expert report; it did not contend that Simmons’s expert was unqualified, or that the lack of a separately filed curriculum vitae impeded its ability to determine whether Simmons’s expert was qualified.

The expert report Simmons served on UTMB states as follows:

I am qualified to render the opinions expressed in this report based on my education, training, and experience.  I am a Board Certified Orthopedic Surgeon practicing in Houston, Texas.  I currently attend at University General Hospital, Renaissance Northeast Surgery Center, and Surgery Specialty Hospitals of America, all of which are located in the Houston area. I am also the Medical Director for Lone Star Orthopedics, which is located in Houston.  My curriculum vitae is attached.

I have been performing surgeries since 1994, and am very familiar with the post-surgical treatment and care of surgical patients.  I perform over 250 surgeries a year, on average, including cases that involve autograft; for example, arthroscopic osteochondral autograft transfer, cervical discectomy and fusion, lumbar discectomy and fusion, skeletal osteotomies with autograft and instrumentation, as well as a variety of general orthopedic surgeries.

The trial court acted within its discretion in concluding that the expert report contained sufficient information to determine whether the expert was qualified and, thus, satisfied the curriculum vitae requirement.  See Johnson, 286 S.W.3d at 564; Garret, 232 S.W.3d at 177-78.  Accordingly, the trial court did not abuse its discretion by denying UTMB’s motion to dismiss Simmons’s suit for failure to serve a separate curriculum vitae.

Conclusion

We affirm the trial court’s order denying UTMB’s motion to dismiss.

                                                                        /s/        William J. Boyce

                                                                                    Justice

Panel consists of Chief Justice Hedges, and Justices Anderson and Boyce.

---

[1] See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9) (Vernon Supp. 2009).

[2] “‘Health care liability claim’ means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.”  Tex. Civ. Prac. & Rem. Code Ann. § 74.001(a)(13) (Vernon 2005).  “Health care provider” includes any person, partnership, professional association, corporation, facility, or institution duly licensed, certified, registered, or chartered by the State of Texas to provide health care, including a health care institution.  Id. § 74.001(a)(12)(A) (Vernon 2005).