Walter Earl Taylor v. Correctional Medical Services, Inc. and Octavia McCoy ( 2013 )

Opinion issued May 21, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00836-CV
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WALTER EARL TAYLOR, Appellant
V.
CORRECTIONAL MEDICAL SERVICES, INC. AND OCTAVIA MCCOY,
Appellees
On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Case No. 10-CV-4108
MEMORANDUM OPINION
Appellant, Walter Earl Taylor, sued appellees, Correctional Medical
Services, Inc. and Octavia McCoy (collectively, “Correctional Medical”), for
medical malpractice pursuant to Texas Civil Practice and Remedies Code Chapter
74. Taylor failed to serve Correctional Medical with an expert report, and
Correctional Medical moved to dismiss Taylor’s claim for failure to serve a timely
expert report. The trial court granted Correctional Medical’s motion to dismiss. In
one issue, Taylor argues that the trial court abused its discretion in granting the
motion to dismiss.
We affirm.
Background
In November 2010, Taylor sued Correctional Medical for medical
malpractice. He alleged that, while he was being held in the Galveston County
Jail, he was given another prisoner’s medication, which caused him to pass out.
On December 23, 2010, Taylor moved the trial court to appoint an expert witness.
In January 2011, the parties entered into an agreed discovery and docket control
order, providing October 20, 2011 as the date by which “experts for all Plaintiffs
shall be designated” and November 21, 2011 as the date by which “experts for all
other parties shall be designated.” Taylor failed to file an expert report.
More than 120 days after Taylor had filed his petition, Correctional Medical
moved to dismiss his claim based on his failure to file the required expert report.
At the hearing on Correctional Medical’s motion to dismiss, the trial court
informed Taylor that it would “continue” its ruling for thirty days to allow Taylor
time to file the expert report. Thirty days later, Correctional Medical moved the
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trial court to rule on its motion to dismiss, and the trial court granted the motion to
dismiss. This appeal followed.
Standard of Review
Texas Civil Practice and Remedies Code section 74.351 requires a claimant
in a health care liability claim to file an expert report and serve it on each party not
later than the 120th day after the petition was filed. TEX. CIV. PRAC. & REM. CODE
ANN. § 74.351(a) (Vernon 2011). If the plaintiff fails to serve an expert report, the
trial court must, on the motion of the affected health care provider, dismiss the
plaintiff’s claim with prejudice. Id. § 74.351(b); Heriberto Sedeno, P.A. v.
Mijares, 333 S.W.3d 815, 818 (Tex. App.—Houston [1st Dist.] 2010, no pet.).
We review a trial court’s ruling on a section 74.351 motion to dismiss for an
abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46
S.W.3d 873, 875 (Tex. 2001) (construing predecessor statute). A trial court abuses
its discretion if it acts arbitrarily or unreasonably or without reference to any
guiding rules or principles. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.
2002) (per curiam).
Expert Report Requirement
Taylor asserts several arguments in support of his contention that the trial
court abused its discretion in dismissing his case. He argues that: (1) we can
dismiss the trial court’s judgment because the trial court did not file findings of
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fact and conclusions of law; (2) Texas Rule of Civil Procedure 165a allows a court
to reinstate a case upon a finding that the party’s failure was due to accident or
mistake; (3) the trial court “should have granted or at least had a hearing on
[Taylor’s] motion to appoint an expert witness at county expense” because Taylor
is indigent; (4) the parties signed an agreed docket control order that extended the
date for serving the expert report; and (5) section 74.351 is unconstitutional as
applied to him because it has prevented him, an indigent inmate, from pursuing his
claims and thus raises “due process concerns” and violates the Texas
Constitution’s open courts provision.
A. Failure to File Findings of Fact and Conclusions of Law
Taylor argues, “Since the trial court did not file findings and conclusions,
the Court of Appeals can dismiss a judgment, then use any legal theory that finds
support in the evidence.” However, we do not dismiss a judgment for a trial
court’s failure to file findings or conclusions. Rather, in a case like this in which
there are no findings of fact or conclusions of law from the trial court, a judgment
dismissing a health care liability claim under section 74.351 will be upheld on any
legal theory supported by the record, and findings necessary to that holding will be
implied. Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766 (Tex. 2011) (per curiam).
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B. Rule of Civil Procedure 165a
Taylor further argues that Rule of Civil Procedure 165a requires a court to
reinstate a case upon finding “that the failure of the party or his attorney was not
intentional or the result of conscious indifference, but was due to an accident or
mistake or that the failure has been otherwise reasonably explained.” He argues
that, as an inmate who is not knowledgeable about the law, he should have been
“provided an opportunity after being informed that he needed an expert witness to
remedy that mistake.”
First, we observe that Rule 165a applies to dismissals for want of
prosecution and is not applicable in Taylor’s case. See TEX. R. CIV. P. 165a.
Furthermore, parties, like Taylor, who appear pro se must comply with all
applicable laws and rules of procedure and are held to the same standards as are
licensed attorneys. See Milton v. Nguyen, No. 01-11-00958-CV, 2012 WL
3228835, at *1 (Tex. App.—Houston [1st Dist.] Aug. 9, 2012, pet. denied) (mem.
op.) (citing Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978)
and Kanow v. Brownshadel, 691 S.W.2d 804, 806 (Tex. App.—Houston [1st Dist.]
1985, no writ)).
C. Appointment of an Expert Witness
Taylor asserts that the trial court erred in failing to appoint an expert witness
for him at the county’s expense. Taylor cites no authority, nor do we find any,
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supporting his contention that he is entitled to appointment of an expert witness at
the county’s expense. To the contrary, several courts, including this Court, have
stated that a trial court is not obligated to appoint a free expert to indigent plaintiffs
in health care liability claims. See Gill v. Russo, 39 S.W.3d 717, 719 (Tex. App.—
Houston [1st Dist.] 2001, pet. denied) (“No statute provides for free experts to
support an indigent plaintiff’s case.”); Fails v. Basse, No. 07-08-00445-CV, 2010
WL 877537, at *2 (Tex. App.—Amarillo Mar. 11, 2010, pet. denied) (mem. op.)
(stating that federal authority cited by indigent plaintiff seeking appointment of
free expert “makes it clear that the appointment of an expert is within the
discretion of the trial court” and observing that, even in criminal cases,
appointment of expert is not automatic); cf. Gibson v. Tolbert, 102 S.W.3d 710,
713 (Tex. 2003) (addressing issue of appointed counsel in medical malpractice
cases brought by indigent inmates and finding no automatic right to appointed
counsel); Bankhead v. Spence, 314 S.W.3d 464, 467–69 (Tex. App.—Waco 2010,
pet. denied) (holding that indigent inmate was not entitled to appointed counsel in
medical malpractice suit).
D. Docket Control Order
Taylor argues that the parties agreed to extend the deadline to file the expert
report in their January 2011 docket control order. However, the docket control
order was a generic order and did not contain any reference to the deadlines
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imposed by Chapter 74. In Spectrum Healthcare Resources, Inc. v. McDaniel, the
supreme court held that a generic docket control order agreed to by the parties,
which made no reference to the deadlines imposed by Chapter 74, did not establish
the intent of the parties to extend the statutory expert report deadline. 306 S.W.3d
249, 253–54 (Tex. 2010). To extend the deadline to file an expert report, the order
must explicitly indicate the parties’ intention to extend the deadline and reference
that specific deadline. Id. at 254. That is not the case here. Thus, the docket
control order did not extend Taylor’s deadline to file the expert report, and
Correctional Medical’s right to mandatory dismissal in the event that Taylor failed
to file a timely expert report was not affected by the agreed docket control order.
See id.; Heriberto Sedeno, P.A., 333 S.W.3d at 824 (holding right to mandatory
dismissal not affected by agreed docket control order that failed to explicitly
indicate parties’ intention to affect their rights under Chapter 74).
E. Constitutionality of Section 74.351
Finally, Taylor argues that section 74.351 is unconstitutional both on its face
and as applied to him. Specifically, he argues that the statute is arbitrary and
unreasonable and that it violated his due process rights and the Texas
Constitution’s open courts provision. However, Taylor failed to present to the trial
court any arguments based on the constitutionality of section 74.351. To preserve
a complaint for appellate review, a party must generally present it to the trial court
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in a timely request or motion. TEX. R. APP. P. 33.1(a)(1). This rule applies to
constitutional issues. Wilson-Everett v. Christus St. Joseph, 242 S.W.3d 799, 801
(Tex. App.—Houston [14th Dist.] 2007, pet. denied) (citing In re L.M.I., 119
S.W.3d 707, 710–11 (Tex. 2003) and Dreyer v. Greene, 871 S.W.2d 697, 698
(Tex. 1993)). Thus, his complaints on this issue are waived.
However, even if Taylor’s constitutional challenges had been preserved for
our review, he still would not meet with success. To sustain a facial challenge to a
statute’s constitutionality, a party must show that the statute, by its own terms,
always operates unconstitutionally, and merely asserting that a provision is
arbitrary and unreasonable fails to demonstrate that the statute always operates
unconstitutionally. See Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 461 (Tex.
App.—Austin 2006, no pet.) (holding that mere assertion that section 74.351 is
“arbitrary and unreasonable” fails to demonstrate that statute always operates
unconstitutionally).
Furthermore, while the Texas Constitution’s open courts guarantee prohibits
the Legislature from making “a remedy by due course of law contingent upon an
impossible condition,” a person claiming an open courts violation must raise a fact
issue establishing that he did not have a “reasonable opportunity to be heard.”
Stockton v. Offenbach, 336 S.W.3d 610, 617–18 (Tex. 2011) (quoting Diaz v.
Westphal, 941 S.W.2d 96, 100 (Tex. 1997) and citing Yancy v. United Surgical
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Partners Int’l, Inc., 236 S.W.3d 778, 785 (Tex. 2007)); see also TEX. CONST. art I,
§ 13 (“All courts shall be open, and every person for an injury done him, in his
lands, goods, person or reputation, shall have remedy by due course of law.”).
Taylor has failed to raise a fact issue that he did not have a reasonable opportunity
to be heard—in fact, the trial court granted him an additional thirty days to procure
an expert report and he failed to do so. See Stockton, 336 S.W.3d at 618; see also
Bankhead, 314 S.W.3d at 466 (noting that Texas courts have held that expert
report requirement itself does not violate open courts guarantee because it is
rationally related to purpose of statute to discourage frivolous malpractice suits)
(citing Offenbach v. Stockton, 285 S.W.3d 517, 522–24 (Tex. App.—Dallas 2009),
aff’d, 336 S.W.3d 610 (Tex. 2011) and Smalling v. Gardner, 203 S.W.3d 354,
370–71 (Tex. App.—Houston [14th Dist.] 2005, pet. denied)).
Regarding Taylor’s claim that the dismissal of his case denied him due
process of law because it prevented him from pursuing his claims, we observe that
multiple courts of appeal have held that section 74.351 was not unconstitutional as
applied. See, e.g., Bankhead, 314 S.W.3d at 469 (holding section 74.351 was not
unconstitutional as applied in dismissing health care liability claim of indigent
inmate); Herrera, 212 S.W.3d at 461 (holding section 74.351 did not violate due
course of law provision of Texas Constitution); Thoyakulathu v. Brennan, 192
S.W.3d 849, 855–56 (Tex. App.—Texarkana 2006, no pet.) (holding section
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74.351 was not unconstitutional as applied to plaintiff who failed to meet expert
report deadline due to malfunctioning fax machine and stating, “[W]e conclude
that [the] statute need not provide exceptions that would encompass any
conceivable complication in order to pass constitutional muster”); see also Walker
v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003) (applying predecessor to section
74.351 and determining that dismissal of suit due to claimant’s failure to file expert
report does not violate due process guarantees).1
Thus, we conclude that the trial court did not abuse its discretion in
dismissing Taylor’s case, and we overrule Taylor’s sole issue.
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In his reply brief, Taylor argues for the first time that the trial court abused its
discretion in dismissing his case because Correctional Medical did not provide
him with his medical records. Generally, we should not consider issues raised for
the first time in a reply brief filed on appeal. See City of San Antonio v.
Schautteet, 706 S.W.2d 103, 104 (Tex. 1986) (per curiam); see also TEX. R. APP.
P. 38.3 (providing that appellant may file reply brief “addressing any matter in the
appellee’s brief” but that court may consider and decide case before reply brief is
filed). Furthermore, even assuming that Correctional Medical improperly failed to
provide Taylor with his own medical records, the failure of a defendant to produce
medical records does not excuse a health care liability plaintiff’s duty to file a
timely expert report. Ramirez v. Doctors Hosp. at Renaissance, Ltd., 336 S.W.3d
352, 354 (Tex. App.—Corpus Christi 2011, no pet.). Nor does “a claimant’s
efforts to obtain medical records . . . serve to toll or extend the expert report
deadline.” Id.; see also Estate of Regis v. Harris Cnty. Hosp. Dist., 208 S.W.3d
64, 68 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (holding that plaintiff was
not entitled to equitable extension of expert report deadline on basis that she made
good faith effort to obtain her medical records and defendant did not provide
them); Offenbach v. Stockton, 285 S.W.3d 517, 521 (Tex. App.—Dallas 2009),
aff’d, 336 S.W.3d 610 (Tex. 2011) (holding that section 74.351 does not contain
“good faith” or “due diligence” exception to 120-day expert report deadline).
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Conclusion
We affirm the trial court’s dismissal of Taylor’s case.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
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