Richard White v. Dr. Michael J. Willenborg, M.D. and Columbia Medical Center of Lewisville Subsidiary, L.P. A/K/A Lewisville Medical Center ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00272-CV
RICHARD WHITE APPELLANT
V.
DR. MICHAEL J. WILLENBORG, APPELLEES
M.D. AND COLUMBIA MEDICAL
CENTER OF LEWISVILLE
SUBSIDIARY, L.P. A/K/A
LEWISVILLE MEDICAL CENTER
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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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Appellant Richard White filed a health care liability claim against Appellees
Dr. Michael J. Willenborg, M.D. and Columbia Medical Center of Lewisville
Subsidiary, L.P. a/k/a Lewisville Medical Center. White failed to serve Appellees
with an expert report within 120 days of the date he filed suit as required by
1
See Tex. R. App. P. 47.4.
chapter 74 of the Texas Civil Practice and Remedies Code. Both Appellees
moved to dismiss White’s suit. White filed a motion requesting an extension of
time to serve his expert report; this motion was also filed after the 120-day
deadline. The trial court granted both Appellees’ motions to dismiss, and White
perfected this appeal.
In two issues, White complains that the trial court erred by denying his
request for additional time to serve an expert report and that he was entitled to
additional time to file his expert report because he did not receive from Appellees
a full and unaltered copy of his medical records despite Appellees’ statutory duty
to provide him with such within forty-five days of receipt of written notice
requesting the records. See Tex. Civ. Prac. & Rem. Code Ann. § 74.051(d)
(Vernon 2005) (providing that “[a]ll 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”). White
claims that without a complete and unaltered copy of his medical records he was
unable to obtain an expert report and should have been granted additional time
to serve an expert report on Appellees.2
2
At the hearing on Appellees’ motions to dismiss, White did not offer
evidence concerning the allegation he asserts on appeal—that Appellees did not
provide him with a full and unaltered copy of his medical records. White offered
no evidence concerning exactly what portions of his medical records he claimed
were incomplete or how the alleged incompleteness caused him to be unable to
obtain an expert report.
2
Unless the date for serving the expert report is extended by written
agreement of the parties, the trial court possesses a mandatory, nondiscretionary
duty to dismiss a health care liability claim on a defendant’s motion when the
plaintiff has failed to serve an expert report within 120 days of filing his or her
original petition. See id. § 74.351(b), (c) (Vernon Supp. 2010); Badiga v. Lopez,
274 S.W.3d 681, 684 (Tex. 2009) (holding trial court has no discretion to grant an
extension if no report is filed by the 120-day deadline); Estate of Regis ex rel.
McWashington v. Harris County Hosp. Dist., 208 S.W.3d 64, 67 (Tex. App.—
Houston [14th Dist.] 2006, no pet.) (rejecting contention that defendant’s failure
to provide copy of medical records entitled plaintiff to equitable extension of time
to serve expert report); see also Lone Star HMA, L.P. v. Wheeler, 292 S.W.3d
812, 814 (Tex. App.—Dallas 2009, no pet.) (holding plaintiff not entitled to
extension of 120-day deadline to serve expert report despite documented
difficulties serving defendant with citation).
Based on the appellate record before us and based on the lack of a written
agreement by the parties extending the deadline for White to serve an expert
report, we hold that the trial court did not abuse its discretion by denying White’s
motion for an extension of time to serve an expert report and that Appellees’
alleged failure in this particular case to provide a complete and unaltered copy of
White’s medical records to White did not entitle him to additional time to serve an
expert report; we affirm the trial court’s orders granting Appellees’ motions to
dismiss. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b), (c); Badiga, 274
3
S.W.3d at 684; Estate of Regis ex rel. McWashington, 208 S.W.3d at 67. We
overrule both of White’s issues.
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
DELIVERED: February 24, 2011
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