Carolyn Butler v. David Whitten, M.D. Jon Beazley, M.D. And Joseph Delprincipe, D.O. ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00306-CV
CAROLYN BUTLER APPELLANT
V.
DAVID WHITTEN, M.D.; JON APPELLEES
BEAZLEY, D.O.; AND JOSEPH
DELPRINCIPE, D.O.
----------
FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 096-267810-13
----------
MEMORANDUM OPINION1
----------
The trial court dismissed Appellant Carolyn Butler’s lawsuit against
Appellees David Whitten, M.D.; Jon Beazley, D.O.; and Joseph DelPrincipe, D.O.
because she failed to file an expert report pursuant to Texas Civil Practice and
Remedies Code section 74.351(a). See Tex. Civ. Prac. & Rem. Code Ann.
1
See Tex. R. App. P. 47.4.
§ 74.351(a) (West Supp. 2014). In three issues, Butler argues that (1) “[i]t is
error to admit expert evidence on issues where no specialized or technical
knowledge was necessary”; (2) “[t]he trial court erred when the court ruled that
Appellant was required to serve expert opinion evidence for unprofessional
conduct”; and (3) “[e]xpert opinion evidence diminishes the right to a jury trial.”2
Butler’s petition alleged that on February 4, 2011, she fell and injured her
leg and back because Defendants Robert Skegrud and Lola Kelley did not
properly maintain their rental property in Arlington, Texas. She alleged that
Appellees did not accurately diagnose her leg injuries so that her leg injuries
were left untreated. She sought money damages from each of the Appellees.3
Butler did not serve any expert report on any of the Appellees or their
attorneys either before or after the statutory, 120-day deadline. On Appellees’
motion, the trial court dismissed Butler’s claims and severed them from her
claims against Skegrud and Kelley.
Butler perfected this appeal from the trial court’s order dismissing her
lawsuit against Appellees.4 In her first and second issues, Butler argues that she
2
Butler appeared pro se in the trial court and, likewise, proceeds pro se in
this appeal.
3
Butler’s petition is brief; it is handwritten, double-spaced, and three pages
long.
4
In the trial court and in this court, Appellee David Whitten, M.D. was
represented by counsel, and Appellees Jon Beazley, D.O. and Joseph
DelPrincipe, D.O. were represented by different counsel. Although two
2
“asserted a[n] unprofessional conduct, and a[n] emotional harm cause of action
that did not require expert evidence, pursuant to the Federal Rules of Evidence,
Article VII, Rule 702 and Citation 956 S.W.2d 635 (1997).” Butler alleges that
Appellees refused to reveal x-ray evidence to her and were rude to her and that
this conduct by Appellees constituted unprofessional misconduct that did not
require an expert report. She argues that a year and a half later she was
diagnosed by a different doctor as having an incomplete fracture of her right tibia
that had caused her pain. She claims that she can testify to Appellees’ conduct
“based on her own personal knowledge” because she “actually observed
[Appellees’] conduct during her emergency visits.”
A trial court must grant a defendant’s motion to dismiss a healthcare-
liability suit with prejudice unless the plaintiff serves a timely expert report within
120 days of filing the original petition. See Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(a), (b). To qualify as a timely expert report, the report must represent a
good faith effort to comply with the statutory requirements for an expert report.
See id. § 74.351(l). An expert report is defined as a written report by an expert
that provides a fair summary of the expert’s opinions regarding (1) the applicable
standard of care; (2) the manner in which the care provided failed to meet that
standard; and (3) the causal relationship between that failure and the injury,
harm, or damages claimed. See id. § 74.351(r)(6); see also Bowie Mem’l Hosp.
Appellees’ briefs were filed in this court, we group all Appellees together for
purposes of our opinion because their positions on appeal are the same.
3
v. Wright, 79 S.W.3d 48, 52 (Tex. 2002); Am. Transitional Care Ctrs. of Tex., Inc.
v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001).
We review a claim that a trial court improperly granted a motion to dismiss
under section 74.351(b) for an abuse of discretion. Wright, 79 S.W.3d at 52
(citing Palacios, 46 S.W.3d at 878). To determine whether the trial court abused
its discretion, we must decide whether the trial court acted in an arbitrary or
unreasonable manner without reference to any guiding rules or principles. Id.;
see also Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996). In making such a
determination, a court of appeals may not substitute its own judgment for the trial
court’s judgment. Wright, 79 S.W.3d at 52.
The law is well-settled that a failure-to-diagnose claim requires that an
expert report be filed. See, e.g., Otero v. Richardson, 326 S.W.3d 363, 370 (Tex.
App.—Fort Worth 2010, no pet.) (holding expert report satisfied causation
component of report involving failure to diagnose left fibula fracture); Barko v.
Genzel, 123 S.W.3d 457, 460–61 (Tex. App.—Eastland 2003, no pet.) (holding
that expert report was inadequate on plaintiff’s failure-to-diagnose-back-injury
claim because report did not indicate that plaintiff would have satisfactorily
recovered from back injury but for the alleged failure to diagnose). To the extent
Butler argues otherwise in her first and second issues, we overrule them.
Butler also argues that her claims against Appellees are not healthcare-
liability claims. We review de novo whether a cause of action is a healthcare-
liability claim. Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex.
4
2012). In determining whether Butler’s claims are healthcare-liability claims, we
examine the underlying nature of the claim and are not bound by the form of the
pleading. See Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 848
(Tex. 2005); Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 (Tex. 2004).
We must focus on the essence of the claims and consider the alleged wrongful
conduct and the duties allegedly breached, rather than the injuries allegedly
suffered. Diversicare, 185 S.W.3d at 851. A healthcare-liability claim may not be
recast as another cause of action to avoid the expert-report requirement. See id.
Butler’s petition alleges that Appellees did not accurately diagnose her leg
injuries so that her leg injuries were left untreated. As set forth above, this
allegation asserts a healthcare-liability claim that requires an expert report to be
filed. The underlying nature of Butler’s claim is to hold Appellees liable for the
medical care they did or did not provide to her; Butler cannot recast her claim on
appeal into a “unprofessional conduct [rude] and emotional harm” claim. See id.
To the extent Butler’s first and second issues seek to recast her pleaded claim
into a nonhealthcare-liability claim to avoid the requirements of chapter 74, we
overrule them.
In her third issue, Butler argues that the expert-report requirement
diminishes the right to a jury trial. Appellees point out that Butler did not raise
this complaint in the trial court and argue that to the extent she purports to make
a constitutional challenge on appeal to the statutory expert-report requirement,
her constitutional challenge is not preserved. We must agree, and we generally
5
do not favor reversing a trial court’s ruling on unpreserved error. See Tex. R.
App. P. 33.1(a)(1) (providing that to preserve a complaint for appellate review,
the complaining party must present the complaint to the trial court by timely
request, objection, or motion); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 222
(Tex. 2002) (holding party failed to raise constitutional argument that trial court’s
ruling violated open-courts provision and thus did not preserve it for appeal);
Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993) (holding party waived due-
process and equal-protection challenges by failing to raise them in trial court);
Birdo v. Ament, 814 S.W.2d 808, 811 (Tex. App.—Waco 1991, writ denied)
(holding pro se appellant waived constitutional complaints to dismissal of his
lawsuit by not raising the constitutional challenges in the trial court). Because the
error alleged in Butler’s third issue was not raised in the trial court, it is waived.
We overrule Butler’s third issue.
Having addressed each of Butler’s three issues and having overruled her
issues and complaints, we hold that the trial court did not abuse its discretion by
dismissing Butler’s claims against Appellees. We affirm the trial court’s dismissal
order.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: GARDNER, WALKER, and MCCOY, JJ.
DELIVERED: September 18, 2014
6