Fernando J. Otero, M.D., Orestes Molina, M.D., and Heriberto Rodriguez-Ayala, M.D. v. Senaida Alonzo ( 2011 )

NUMBER 13-10-00304-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
FERNANDO J. OTERO, M.D., ORESTES
MOLINA, M.D., AND HERIBERTO
RODRIGUEZ-AYALA, M.D., Appellants,
v.
SENAIDA ALONZO, Appellee.
On appeal from the 93rd District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Perkes
Memorandum Opinion by Justice Rodriguez
Appellants Fernando J. Otero, M.D., Orestes Molina, M.D., and Heriberto
Rodriguez-Ayala, M.D. challenge the trial court's denial of their motions to dismiss
appellee Senaida Alonzo's health care liability claim. By one issue, appellants argue
that the trial court abused its discretion in denying their motions to dismiss because
Alonzo failed to serve an expert report on appellants within the 120 days prescribed by
section 74.351. See TEX. CIV. PRAC. & REM. CODE ANN. §74.351(a)-(b) (Vernon Supp.
2010). We reverse and render, in part, and reverse and remand, in part.
I. BACKGROUND
On April 23, 2009, Alonzo filed suit against appellants and the Women's Clinic of
South Texas (the Clinic) claiming negligence in connection with appellants' alleged failure
to diagnose and treat her ectopic pregnancy before emergency surgery required the
removal of her left fallopian tube and ovary.1 Appellants filed their answers in May 2009.
On August 19, 2009, Alonzo filed a notice with the trial court containing her expert report,
which was authored by Margaret Thompson, M.D.; this was two days before the 120-day
deadline under section 74.351, which would have been August 21, 2009. See id. §
74.351(a). It is undisputed that Alonzo served her expert report on the Clinic on or
before August 21, but failed to serve her report on appellants by that date.
At the beginning of September 2009, appellants each filed motions to dismiss
Alonzo's suit, arguing that Alonzo had failed to timely serve them with her expert report
and, alternatively, that the report was deficient. Alonzo responded to appellants' motions
to dismiss, claiming that her counsel's staff "inadvertently" failed to serve the report on
appellants and arguing that the notice filed with the trial court and service of the report on
the Clinic constituted constructive or a good-faith effort at service of process on
appellants.
1
The Women's Clinic of South Texas is not a party to this appeal.
2
On October 28, 2009, the trial court held a hearing on the motions to dismiss, but
asked the parties for further briefing and closed the hearing without ruling. On March 10,
2010, the trial court held a second hearing on the motions to dismiss, after which it
allowed Alonzo fourteen additional days to file her brief. On May 5, 2010, the trial court
held its final hearing, at which it denied appellants' motions to dismiss. This interlocutory
appeal followed. See TEX. R. APP. P. 28.1; TEX. CIV. PRAC. & REM. CODE. ANN. §
51.014(a)(9) (Vernon 2008) (authorizing an interlocutory appeal of the denial of a motion
to dismiss filed under section 74.351(b)).
II. STANDARD OF REVIEW
We review a trial court's decision on a motion to dismiss under section 74.351 of
the civil practice and remedies code for abuse of discretion. Jernigan v. Langley, 195
S.W.3d 91, 93 (Tex. 2006); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
S.W.3d 873, 878 (Tex. 2001). The trial court abuses its discretion if it acts unreasonably
or arbitrarily or without reference to any guiding rules or principles. Walker v. Gutierrez,
111 S.W.3d 56, 62 (Tex. 2003).
III. DISCUSSION
By one issue, appellants argue that the trial court abused its discretion in denying
their motions to dismiss because Alonzo failed to timely serve her expert reports on
appellants within the 120-day deadline provided by section 74.351. We agree.
Under section 74.351, a claimant must "serve on each party or the party's
attorney" an expert report and curriculum vitae "not later than the 120th day after the date
the original petition was filed." TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). The
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120-day deadline is strict, and although it may lead to harsh results, "the Legislature
[nonetheless] imposed the deadline as part of its effort to reduce excessive frequency . . .
of health care liability claims." Ogletree v. Matthews, 262 S.W.3d 316, 320 (Tex. 2007)
(internal quotations omitted); see Estate of Regis v. Harris County Hosp. Dist., 208
S.W.3d 64, 68 (Tex. App.–Houston [14th Dist.] 2006, no pet.). When a health care
liability plaintiff wholly fails to serve her expert report on a defendant within 120 days, the
trial court is without discretion to deny the defendant's motion to dismiss. Ogletree, 262
S.W.3d 319-20; see Valley Baptist Med. Ctr. v. Azua, 198 S.W.3d 810, 815-16 (Tex.
App.–Corpus Christi 2006, no pet.). Here, it is undisputed that Alonzo failed to serve her
expert report on appellants within the 120-day deadline. Despite this, the trial court
denied appellants' motions to dismiss—it lacked the discretion to do so.
Alonzo responds that by (1) serving the Clinic, at which she alleges appellants
were employees or associates, and (2) filing the expert report with the district court, she
made a good-faith effort to comply with section 74.351. Alonzo also responds that the
120-day deadline should be tolled in this case because appellants failed to timely provide
medical records as required by section 74.051 of the civil practices and remedies code.
See TEX. CIV. PRAC. & REM. CODE ANN. § 74.051(d) (Vernon 2005) ("All parties shall be
entitled to obtain complete and unaltered copies of the patient's medical records from any
other party within 45 days from the date of receipt of a written request for such records . .
. ."). Finally, Alonzo responds that to dismiss under the facts of this case would be an
inequitable death penalty sanction that violates the open courts provision of the Texas
Constitution. See TEX. CONST. art. I, § 13 ("All courts shall be open, and every person for
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an injury done him, in his lands, goods, person or reputation, shall have remedy by due
course of law."). We are not persuaded by Alonzo's responses.
First, the requirement in section 74.351 that a plaintiff serve her expert report on
each party within 120 days is not subject to any good-faith exception. See Offenbach v.
Stockton, 285 S.W.3d 517, 521 (Tex. App.–Dallas 2009, no pet.) ("Unlike former article
4590i, which gave a claimant two opportunities to seek an extension of time in which to
furnish an expert report, former section 74.351(a) does not contain a 'due diligence' or
'good cause' exception." (citations omitted)); Estate of Regis, 208 S.W.3d at 68 ("In
repealing article 4590i and enacting Civil Practice and Remedies Code chapter 74, the
legislature specifically removed the trial court's ability to grant an extension based on a
plaintiff's diligence."); Kendrick v. Garcia, 171 S.W.3d 698, 705 (Tex. App.–Eastland
2005, pet. denied) ("As a result of the omission of the 'accident or mistake' exception in
Section 74.351, we conclude that the new statute precludes the existence of a good faith
exception to the requirement of timely serving expert reports."). Rather, section 74.351
creates only two exceptions to the 120-day deadline: (1) the parties agree to an
extension; or (2) the trial court is permitted to grant one thirty-day extension to the plaintiff
to cure a deficient but otherwise timely report. See TEX. CIV. PRAC. & REM. CODE ANN. §
74.351(a), (c); Badiga v. Lopez, 274 S.W.3d 681, 685 (Tex. 2009); Valley Baptist Med.
Ctr., 198 S.W.3d at 814-15. Neither exception applies in this case. The parties did not
agree to extend the deadline. And no timely but deficient report was served on
appellants such that Alonzo could invoke the thirty-day extension.
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Further, while Alonzo urges us to conclude that "serve" is not defined in section
74.351 and thus rule 21a, governing service of process, does not apply to the expert
report requirement, our precedent and the clear precedent of other courts in Texas
indicate otherwise. See TEX. R. CIV. P. 21a. A health care liability plaintiff's service of
her expert report must comply with rule 21a. Salinas v. Dimas, 310 S.W.3d 106, 108
(Tex. App.–Corpus Christi 2010, pet. denied); Fulp v. Miller, 286 S.W.3d 501, 510 (Tex.
App.–Corpus Christi 2009, no pet.) (op. on reh'g); Univ. of Tex. Health Sci. Ctr. at
Houston v. Gutierrez, 237 S.W.3d 869, 872 (Tex. App.–Houston [1st Dist.] 2007, pet.
denied); Kendrick, 171 S.W.3d at 704. Under rule 21a, service may be accomplished by:
[D]elivering a copy [of the report] to the party to be served, or the party's
duly authorized agent or attorney of record . . . either in person or by agent
or by courier receipted delivery or by certified or registered mail, to the
party's last known address, or by telephonic document transfer to the
recipient's current telecopier number, or by such other manner as the court
in its discretion may direct.
TEX. R. CIV. P. 21a. Service of the expert report on the Clinic—which was sued
separately from and had a different attorney than appellants—was not a method of
service authorized by rule 21a and thus did not effectuate service on appellants. See id.;
see also TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (requiring that the expert report
be served on "each party or the party's attorney" (emphasis added)). And service may
not be accomplished under section 74.351 by filing a copy of the expert report with the
trial court. See Offenbach, 285 S.W.3d at 521 ("[F]iling [the expert report] with the
petition does not comply with the statute."); Thoyakulathu v. Brennan, 192 S.W.3d 849,
851 n.3, 853-54 (Tex. App.–Texarkana 2006, no pet.) (holding that the trial court abused
its discretion in denying the defendant's motion to dismiss where the plaintiff filed its
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expert report with the court but failed to timely serve it on the defendant because of a
facsimile machine malfunction); see also Acosta v. Chheda, No. 01-07-00398-CV, 2007
WL 3227650, at *2 (Tex. App.–Houston [1st Dist.] Nov. 1, 2007, pet. denied) (mem. op.)
("[F]iling an expert report with the district clerk does not satisfy 'service' on a party under
section 74.351(a)." (citations omitted)); Quint v. Alexander, 03-04-00819-CV, 2005 WL
2805576, at *2-3 (Tex. App.–Austin Oct. 28, 2005, pet. denied) (mem. op.) (same); cf.
Kendrick, 171 S.W.3d at 704 n.5 (noting that placement of an expert report in box for
attorneys at district clerk's office did not comply with rule 21a).
Second, a defendant health care provider's failure to provide medical records
requested under section 74.051 does not toll the 120-day expert report deadline. Estate
of Regis, 208 S.W.3d at 68 (rejecting the plaintiff's argument that the defendant's failure to
provide medical records for two years following the plaintiff's request under section
74.051(d) entitled the plaintiff to an equitable extension of time for filing her expert report);
see also Garza v. Saenz, No. 13-09-00111-CV, 2010 WL 746712, at *2 (Tex.
App.–Corpus Christi Mar. 4, 2010, no pet.) (mem. op.) ("A claimant's efforts to obtain
medical records under section 74.051 do not serve to toll or extend the expert report
deadline."). Thus, whether appellants produced the records requested by Alonzo—an
issue that is disputed by the parties—is irrelevant for the purposes of determining
compliance with the expert report requirement.
Finally, it is well-settled that section 74.351's strict requirement for timely service of
an expert report does not violate the open courts provision of the Texas Constitution.
See Powell v. Clements, 220 S.W.3d 138, 140 (Tex. App.–Waco 2007, pet. denied)
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(holding that the expert report requirement does not impose unreasonable or arbitrary
restrictions in violation of the open courts provision of the Texas Constitution); Herrera v.
Seton Nw. Hosp., 212 S.W.3d 452, 461-62 (Tex. App.–Austin 2004, no pet.) (holding that
the statute did not violate the open courts doctrine where the plaintiff "did not produce any
evidence that the requirements of section 74.351 worked to prevent him from pursuing his
claim" and, in fact, admitted that his failure to timely serve his expert report was the "result
of the inadvertent failure to deliver documents"); Perry v. Stanley, 83 S.W.3d 819, 825
(Tex. App.–Texarkana 2003, no pet.) (citing Gill v. Russo, 39 S.W.3d 717, 718-19 (Tex.
App.–Houston [1st Dist.] 2001, pet. denied)) (holding that section 74.351's requirement
for early expert reports is rationally related to the purpose of the statute to discourage
frivolous malpractice suits and does not violate the open courts provision of the Texas
Constitution). In fact, Texas courts have consistently held that the expert report
requirement passes muster on a variety of constitutional grounds. See, e.g.,
Wilson-Everett v. Christus St. Joseph, 242 S.W.3d 799, 802-804 (Tex. App.–Houston [1st
Dist.] 2007, pet. denied) (section 74.351 does not violate separation of powers provision
of Texas Constitution); Thoyakulathu, 192 S.W.3d at 855-56 (Tex. App.–Texarkana 2006,
no pet.) (due process does not require "exceptions [to the expert report requirement] that
would encompass any conceivable complication in order to pass constitutional muster");
Herrera, 212 S.W.3d at 461-62 (section 74.351 does not violate due process of law);
Schrop v. Baptist Mem'l Health Sys., 5 S.W.3d 727, 736-37 (Tex. App.–San Antonio
1999, no pet.) (dismissal of claim due to failure to comply with expert report requirement,
even if claim is meritorious, does not offend due process); see also Etheredge v.
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McCarthy, No. 05-05-00164-CV, 2006 WL 1738258, at *1, (Tex. App.–Dallas June 27,
2006, no pet.) (mem. op.) (dismissal imposed as a direct result of plaintiff's failure to file
an expert report in compliance with the statutory deadline was appropriate and did not
violate the due process clause). We are therefore unpersuaded by Alonzo's
constitutional argument.
In sum, Alonzo did not comply with the plain, clear, and strict requirements of
section 74.351 when she failed to serve her expert reports on appellants within the
120-day period as prescribed by the statute. See TEX. CIV. PRAC. & REM. CODE ANN. §
74.351(a); Ogletree, 262 S.W.3d at 320; Estate of Regis, 208 S.W.3d at 68. In denying
appellant's motion to dismiss, the trial court acted without reference to the guiding laws
and principles enumerated above and, therefore, abused its discretion. See Ogletree,
262 S.W.3d 319-20; Valley Baptist Med. Ctr., 198 S.W.3d at 815-16. Appellants' sole
issue is sustained.
IV. CONCLUSION
We reverse the order of the trial court denying appellants' motion to dismiss;
render judgment dismissing Alonzo's suit against appellants with prejudice; and remand
for a determination of attorneys' fees and costs owed to appellants, as required by section
74.351. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b).
NELDA V. RODRIGUEZ
Justice
Delivered and filed the
3rd day of March, 2011.
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