Deborah Louise Roberts v. Irigoyen, Fructuoso R., Individually and D/B/A the Comprehensive Health Center ( 2000 )

NUMBER 13-99-011-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

DEBORAH LOUISE ROBERTS

, Appellant,

v.

FRUCTUOSO R. IRIGOYEN, INDIVIDUALLY

AND D/B/A THE COMPREHENSIVE HEALTH CENTER

, Appellee.

___________________________________________________________________

On appeal from the 92nd District Court of Hidalgo County, Texas.

___________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Yañez Opinion by Chief Justice Seerden

This is an appeal of the trial court's dismissal of a lawsuit and imposition of sanctions pursuant to section 13.01 of the Medical Liability and Insurance Improvement Act, codified at Tex. Rev. Civ. Stat. Ann. art. 4590i (Vernon Supp. 2000).

Appellant Deborah L. Roberts brought suit against Fructuoso Irigoyen, individually and d/b/a The Comprehensive Health Center, alleging psychiatric malpractice. Appellee Fructuoso Irigoyen moved for dismissal of the lawsuit and for sanctions based on Roberts's failure to produce an expert report as required by the Medical Liability and Insurance Improvement Act (the "Act"). The trial court dismissed the lawsuit and awarded Irigoyen $5,000.00 in attorney's fees.

Roberts raises two issues on appeal. First, Roberts contends that the trial court erred in dismissing the lawsuit because the trial court retroactively applied the "1997" amendments to section 13.01 of the Medical Liability and Insurance Improvement Act. Second, Roberts alleges that Irigoyen failed to produce sufficient evidence to support the award of attorney's fees.

We affirm the trial court's judgment.

Facts

Roberts initially filed suit in this matter on June 10, 1997. On August 14, 1997, Roberts filed responses to interrogatories which included the identity of her expert witness and provided a summary of certain of his opinions, but these interrogatory responses did not establish the standard of care or address the issue of causation. On August 14, 1998, Irigoyen filed a motion to dismiss based on Roberts's failure to provide an expert report, and requested attorney's fees. Roberts did not file a response to this motion to dismiss, nor did she file a request for extension of time to file her expert report.

At the hearing on the motion to dismiss, held on September 9, 1998, Roberts argued that her failure to produce a report was an oversight, and was neither intentional nor the result of conscious indifference. Roberts further argued that her interrogatory responses identified her expert and provided the substance of his opinions. Finally, Roberts orally requested an extension of time to file her report, stating that the report would be filed within ten days of the hearing, if not sooner. Concomitantly, Roberts offered to file a $7,500.00 bond pending the provision of her expert report.

The trial court granted Irigoyen's motion to dismiss without expressly ruling on Roberts's request for an extension of time. Roberts did not thereafter file her expert's report. On October 9, 1998, Roberts filed a motion for reconsideration, again requesting an extension of time, but she did not file an expert report. In her motion for reconsideration, Roberts argued that her interrogatory responses effectively served as an expert report, but she did not supplement those interrogatory responses to address the standard of care or causation. Roberts's motion for reconsideration was overruled by the trial court on December 9, 1998.

Standard of Review

Roberts contends that the dismissal of a lawsuit under section 13.01 is governed by the standard of review applicable to no-evidence summary judgments rather than an abuse of discretion standard, citing Palacios v. American Transitional Care Ctrs. of Texas, Inc., 4 S.W.3d 857 (Tex. App.--Houston [1^st Dist.] 1999, no pet.). In Palacios, the First Court of Appeals refused to apply an abuse of discretion standard to dismissals pursuant to section 13.01 because the abuse of discretion standard was adopted to deal with misconduct in litigation. The First Court chose to apply a more lenient standard to dismissals under section 13.01, stating that "We doubt that a plaintiff must produce more proof now, at this preliminary stage, than he would have to produce in responding to a motion for summary judgment." Id. at 860.

In contrast to the First Court's application of the summary judgment standard of review, all other courts of appeals that have addressed this issue, including this Court, have applied an "abuse of discretion" standard to the dismissal of a suit under section 13.01. See, e.g., Schorp v. Baptist Mem'l Health Sys., 5 S.W.3d 727, 731 (Tex. App.--San Antonio 1999, no pet. h.); Nguyen v. Kim, 3 S.W.3d 146, 151 (Tex. App.--Houston [14^th Dist.] 1999, no pet.); Martinez v. Lakshmikanth, 1 S.W.3d 144, 146 (Tex. App.--Corpus Christi 1999, no pet. h.); Presbyterian Health Care Sys. v. Afangideh, 993 S.W.2d 319, 313 (Tex. App.--Eastland 1999, pet. denied); Roberts v. Medical City Dallas Hosp., 988 S.W.2d 398, 402 (Tex. App.--Texarkana 1999, pet. denied); Estrello v. Elboar, 965 S.W.2d 754, 758 (Tex. App.--Fort Worth 1998, no pet.).

This Court declines to adopt the standard of review applied by the First Court of Appeals in Palacios, and will continue to apply an abuse of discretion standard to the dismissal of a lawsuit under section 13.01. When matters involving both factual determinations and legal conclusions are decided by the trial court, Texas courts generally employ an abuse of discretion standard. See, e.g., Donwerth v. Preston II Chrysler-Dodge, 775 S.W.2d 634, 637 n. 3 (Tex. 1989); Pony Express Courier Corp. v. Morris, 921 S.W.2d 817, 820 (Tex. App.--San Antonio 1996, no writ). By applying the abuse of discretion standard, the reviewing court defers to the trial court's factual determinations while properly fulfilling its role to determine questions of law de novo. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992); Pony Express, 921 S.W.2d at 820.

Medical Liability and Insurance Improvement Act

In her first issue, Roberts alleges that the 1995 provisions of section 13.01 of the Medical Liability and Insurance Improvement Act govern this matter rather than the "1997" amendment to that section applied by the trial court. However, a review of the history of section 13.01 reveals that this section was originally added to the Act in 1993, and amended once in 1995. See Tex. Rev. Civ. Stat. Ann. art. 4590i §13.01 (Vernon Supp. 2000)(originally enacted by Act of June 10, 1993, 73^rd Leg., R.S., ch. 625, §3, 1993 Tex. Gen. Laws 2347, amended by Act of May 18, 1995, 74^th Leg., R.S., ch. 140, §1, 1995 Tex. Gen. Laws 985). There are no "1997" amendments to section 13.01. The 1995 amendments to this section became effective on September 1, 1995, prior to the inception of this suit, and therefore govern this case. See Tex. Rev. Civ. Stat. Ann. art. 4590i §13.01 historical note (Vernon Supp. 2000)[Act of May 18, 1995, 74^th Leg., R.S., ch. 140, §6, 1995 Tex. Gen. Laws 985, 989].

Under the 1995 amendments, the Act requires claimants to file an expert report together with the expert's curriculum vitae no later than 180 days after the suit is filed. Tex. Rev. Civ. Stat. Ann. art. 4590i, §13.01(d) (Vernon Supp. 2000). The Act provides that if the claimant fails to timely provide the report, or alternatively, nonsuit his claim, the trial court "shall" dismiss the suit with prejudice upon defendant's motion. Id. at §13.01(e). The Act further provides that a court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the definition of an expert report. Id. at §13.01(l).

Roberts failed to produce an expert report. However, Roberts contends that her discovery responses effectively constitute an expert report and suffice to meet the statute's requirements. In her discovery responses filed on August 14, 1997, Roberts identified her expert and summarized some of his opinions in her interrogatory answers, and produced her expert's curriculum vitae in response to a request for production.

The statute defines an "expert report" as follows:

[A] written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.

Id. at §13.01(r)(6). Under this provision, Roberts failed to produce a "written" expert report as referenced by the statute because Roberts's interrogatory responses fail to include the substantive requirements for an expert report as identified in the statute. Specifically, Roberts's responses fail to identify the applicable standards of care and fail to establish a causal relationship between the failure to meet the standard of care and the injury claimed. Significantly, section 13.01 of the Act was enacted to address the problem of claims being filed without adequate investigation. See id. at §13.01; see Horsely-Laymann v. Angeles, 968 S.W.2d 533, 537 (Tex. App.--Texarkana 1998, no pet.).

During the hearing on the motion to dismiss, Roberts orally requested an extension of time to file her report. The statute contains two provisions allowing claimants to obtain additional time to file expert reports. See Tex. Rev. Civ. Stat. Ann. art. 4590i §13.01(f), (g) (Vernon Supp. 2000). However, this Court does not reach the issue of whether the trial court's refusal to grant Roberts's oral request for an extension constituted an abuse of discretion because Roberts does not complain on appeal about the refusal to grant an extension.

Sanctions

In her second issue, Roberts challenges the trial court's award of $5,000.00 in attorney's fees. Roberts asserts that the affidavit of Matthew T. McCracken, Irigoyen's attorney, amounts to no evidence because it does not specify the attorney's billing rate per hour or the amount of time spent in defending the lawsuit.

The statute authorizes the trial court to impose sanctions for the failure to produce expert reports. The statute provides:

[T]he court shall, on the motion of the affected physician or health care provider, enter an order awarding as sanctions against the claimant or the claimant's attorney: (1) the reasonable attorney's fees and costs of court incurred by that defendant; (2) the forfeiture of any cost bond respecting the claimant's claim against that defendant to the extent necessary to pay the award; and (3) the dismissal of the action against that defendant with prejudice to the claim's refiling.

Id. at §13.01(e). According to Estrello v. Elboar, 965 S.W.2d 754, 759 (Tex. Civ. App.--Fort Worth 1998, no pet.), nothing in this section modifies the general rule that a party seeking attorney's fees must put on evidence of attorney's fees.

As evidence of attorney's fees, Irigoyen produced the affidavit of Matthew T. McCracken. The affidavit reads as follows:

Attorney's fees incurred in FRUCTUOSO IRIGOYEN, M.D.'s defense in this case are in excess of $5,000.00. Given the amount of time and effort spent on defending FRUCTUOSO IRIGOYEN, M.D. in this suit, as evidenced by the pleadings on file herein and based upon my personal knowledge, as a member of the law firm defending FRUCTUOSO IRIGOYEN, M.D. of what has been entailed in FRUCTUOSO IRIGOYEN, M.D.'s defense and, based on the complexity of the legal issues presented in this case, it is my opinion that these attorney's fees are reasonable and necessary.

Roberts did not object to this affidavit, and therefore waived her complaint about the award of attorney's fees. See Tex. R. App. P. 33.1(a). Moreover, the testimony of an attorney concerning the amount, reasonableness, and necessity of attorney's fees constitutes sufficient evidence to support an award of fees. See, e.g., LaSara Grain v. First Nat'l Bank, 673 S.W.2d 558, 567 (Tex. 1984). In the absence of any objection, the affidavit of Matthew T. McCracken constitutes some evidence to support the award of attorney's fees under the criteria set out in the LaSara Grain case. Id.

Conclusion

We affirm the trial court's judgment.

__________________________________

ROBERT J. SEERDEN, Chief Justice

Do not publish

.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 4th day of May, 2000.