John T. Nguyen, MD, FACS, FICS v. Mary Lavigne ( 2021 )


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  • Reversed and Rendered in Part and Remanded in Part and Memorandum
    Opinion filed July 6, 2021.
    In The
    Fourteenth Court of Appeals
    NO. 14-20-00185-CV
    JOHN T. NGUYEN, MD, FACS, FICS, Appellant
    V.
    MARY LAVIGNE, Appellee
    On Appeal from the 400th District Court
    Fort Bend County, Texas
    Trial Court Cause No. 19-DCV-263499
    MEMORANDUM OPINION
    Appellee Mary Lavigne filed suit against appellant John T. Nguyen, M.D.,
    FACS, FICS, alleging health care liability claims arising out of surgical procedures
    Nguyen performed. Lavigne failed to file an expert report within the time-period
    provided by the Texas Medical Liability Act. See Tex. Civ. Prac. & Rem. Code
    Ann. § 74.351(a) (requiring health care liability claimants to serve an expert report
    upon each defendant not later than 120 days after the defendant’s answer is filed).
    Nguyen filed a motion to dismiss for Lavigne’s failure to meet the statutory
    deadline. Id. § 74.351(b). The trial court denied the motion and Nguyen timely
    appealed. Because Lavigne failed to meet the statutory deadline to serve an expert
    report, her claims were subject to mandatory dismissal under section 74.351(b) and
    therefore the trial court abused its discretion when it denied Nguyen’s motion to
    dismiss. We reverse the trial court’s order denying Nguyen’s motion to dismiss,
    render judgment dismissing Lavigne’s claims against Nguyen with prejudice, and
    remand for a determination of reasonable attorney’s fees and costs.
    BACKGROUND
    Nguyen is a plastic surgeon who performed surgical procedures on Lavigne
    in April 2017. (CR7-8) Lavigne experienced problems, including severe pain,
    after the surgery. (CR8) Believing Nguyen had failed to exercise reasonable
    medical care during and after the surgery, Lavigne filed suit against Nguyen.
    Nguyen filed his answer and when Lavigne did not serve the required expert report
    and curriculum vitae within the statutory deadline, Nguyen filed a motion to
    dismiss Lavigne’s lawsuit against him. (CR26) Lavigne filed a response opposing
    Nguyen’s motion. Lavigne asserted that Nguyen had not provided her with her
    complete medical records which prevented her from providing “an accurate expert
    report.” (CR78) She further asserted that her counsel was only then “preparing
    discovery requests to send to the Defendant to get the full copy of her medical
    records.” (CR78) The only evidence Lavigne attached to her response was her
    attorney’s affidavit stating that the “failure to file the expert [report] in this cause
    was not an intentional act but a mere error in docketing.” (CR86) The record does
    not contain any motions filed by Lavigne seeking the trial court’s assistance with
    the production of Lavigne’s medical records. After the statutory deadline for filing
    her expert report had passed, Lavigne filed a motion for extension of time to file
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    her expert report citing former article 4590i, the predecessor to chapter 74, the
    Texas Medical Liability Act, in support of her request. (CR71) Lavigne attached
    an affidavit from a surgeon opining that while he did have some of Lavigne’s
    medical records, he could not prepare a proper report addressing Lavigne’s claims
    because he did not have all of Lavigne’s medical records. (CR75) At the oral
    hearing on Nguyen’s motion to dismiss, the trial court indicated she would deny
    Nguyen’s motion and would grant Lavigne a thirty-day extension to file her expert
    report. (RR12-13) The trial court subsequently signed an order denying Nguyen’s
    motion to dismiss. (SuppCR4-5) This appeal followed.
    ANALYSIS
    In three issues Nguyen argues that the trial court abused its discretion when
    it (1) denied his motion to dismiss Lavigne’s claims against him because Lavigne
    failed to file the required expert report within the statutory deadline; and (2) failed
    to award him his attorney’s fees and costs as required by the Texas Medical
    Liability Act. We address these issues together.
    I.    Standard of review and applicable law
    We review a trial court’s ruling on a motion to dismiss for failure to comply
    with section 74.351 under an abuse of discretion standard. Am. Transitional Care
    Cntrs. of Tex., Inc. v. Palacios, 
    46 S.W.3d 873
    , 878 (Tex. 2001); Univ. of Tex.
    Med. Branch at Galveston v. Callas, 
    497 S.W.3d 58
    , 62 (Tex. App.—Houston
    [14th Dist.] 2016, pet. denied).     A trial court abuses its discretion if it acts
    arbitrarily or unreasonably or without reference to guiding rules or principles.
    Bowie Mem’l Hosp. v. Wright, 
    79 S.W.3d 48
    , 52 (Tex. 2002) (per curiam). A trial
    court has no discretion in determining what the law is or applying the law to the
    facts. Callas, 497 S.W.3d at 62 (citing Walker v. Packer, 
    827 S.W.2d 833
    , 840
    (Tex. 1992)). Therefore, the trial court’s failure to analyze or apply the law
    3
    correctly is an abuse of discretion. 
    Id.
    Determining whether the trial court abused its discretion when it denied
    Nguyen’s motion to dismiss Lavigne’s lawsuit presents an issue of statutory
    construction. The primary goal when interpreting a statute is to effectuate “the
    Legislature’s intent as expressed by the plain and common meaning of the statute’s
    words.” F.F.P. Operating Partners, L.P. v. Duenez, 
    237 S.W.3d 680
    , 683 (Tex.
    2007). “Where statutory text is clear, that text is determinative of legislative intent
    unless the plain meaning of the statute’s words would produce an absurd result.”
    Tex. Mut. Ins. Co. v. Ruttiger, 
    381 S.W.3d 430
    , 452 (Tex. 2012).
    “To proceed with a health care liability claim, a claimant must comply with
    the expert report requirement of the Texas Medical Liability Act.” Callas, 497
    S.W.3d at 61 n.1. Section 74.351, entitled “Expert Report,” provides:
    In a health care liability claim, a claimant shall, not later than the
    120th day after the date each defendant’s original answer is filed,
    serve on that party or the party’s attorney one or more expert reports,
    with a curriculum vitae of each expert listed in the report for each
    physician or health care provider against whom a liability claim is
    asserted. The date for serving the report may be extended by written
    agreement of the affected parties. Each defendant physician or health
    care provider whose conduct is implicated in a report must file and
    serve any objection to the sufficiency of the report not later than the
    later of the 21st day after the date the report is served or the 21st day
    after the date the defendant’s answer is filed, failing which all
    objections are waived.
    Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). Section 74.351 also provides:
    If, as to a defendant physician or health care provider, an expert report
    has not been served within the period specified by Subsection (a), the
    court, on the motion of the affected physician or health care provider,
    shall, subject to Subsection (c), enter an order that:
    (1) awards to the affected physician or health care provider
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    reasonable attorney’s fees and costs of court incurred by the
    physician or health care provider; and
    (2) dismisses the claim with respect to the physician or health
    care provider, with prejudice to the refiling of the claim.
    Id. § 74.351(b) (emphasis added).
    Section 74.351 requires the claimant to serve the expert report and
    curriculum vitae on the party or the party’s attorney by such deadline. Id. Section
    74.351(a)’s “strict 120[-]day deadline can lead to seemingly harsh results.”
    Ogletree, 262 S.W.3d at 320.        “Strict compliance with [section 74.351(a)] is
    mandatory.” Zanchi v. Lane, 
    408 S.W.3d 373
    , 376 (Tex. 2013); see Callas, 497
    S.W.3d at 63. If the plaintiff has not served the required expert report by the
    statutory deadline, and the parties have not agreed to extend the deadline, upon the
    motion of the affected physician, the statute requires the trial court to dismiss the
    claim with prejudice. Zanchi, 408 S.W.3d at 376. The trial court does not have
    discretion to do anything else. Estate of Regis v. Harris Cty. Hosp. Dist., 
    208 S.W.3d 64
    , 67 (Tex. App.—Houston [14th Dist.] 2006, no pet.). This includes
    being denied the discretion to grant an extension for equitable reasons. 
    Id. at 68
    .
    While this strict deadline may result in harsh consequences, it is the province of the
    legislature, not courts, to provide for extensions or grace periods regarding the
    expert report deadline. 
    Id.
    II.   The trial court abused its discretion when it failed to dismiss Lavigne’s
    claims.
    Here, it is undisputed that Lavigne alleged a health care liability claim
    against Nguyen and was therefore required to comply with the Chapter 74 expert
    report requirement. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). It is also
    undisputed that Lavigne did not serve an expert report within the 120-day time-
    period mandated by the statute. There was no agreement between the parties to
    5
    extend that deadline. In this situation, the trial court was required to dismiss
    Lavigne’s lawsuit and then award the defendant physician his reasonable
    attorney’s fees and costs of court. Id. § 74.351(b). It had no discretion to do
    otherwise. Estate of Regis, 
    208 S.W.3d at 67
    . This includes situations where the
    health care liability claimant alleges that she did not receive her complete medical
    records. 
    Id. at 66
    –67 (rejecting argument claimant was entitled to an equitable
    extension because the defendant failed to provide her with her medical records). It
    also includes cases where the claimant alleges the failure to timely file an expert
    report was due to accident or mistake. See Univ. of Tex. Health Sci. Ctr. v. Joplin,
    
    525 S.W.3d 772
    , 778–79 (Tex. App.—Houston [14th Dist.] 2017, pet. denied)
    (“As a result, Texas courts, including this one, have refused to read into the statute
    any other exception to the deadline for effecting service of the expert report and
    CV, whether based on good faith, due diligence, mistake, or other unintentional
    conduct.”). In addition, because Lavigne did not serve any report before the
    statutory deadline, the trial court did not have the discretion to grant a thirty-day
    extension to file an amended report. See Estate of Regis, 
    208 S.W.3d at 67
    (“Although section 74.351(c) gives a court discretion to grant 30 days to amend a
    deficient report, this section applies only when an initial report is timely filed; it is
    not available to extend the deadline for first filing a report.”); Valley Baptist Med.
    Ctr. v. Azua, 
    198 S.W.3d 810
    , 815 (Tex. App.—Corpus Christi 2006, no pet.)
    (“[A] trial court does not have authority to grant an extension when no report is
    served within 120 days of filing the claim.”). Based on the plain language of the
    statute, we conclude that because the parties did not agree to extend the deadline,
    section 74.351 required Lavigne, not later than the 120th day after Nguyen filed his
    original answer, to serve Nguyen with the statutorily-required expert report and
    curriculum vitae. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). Because
    she did not, the trial court abused its discretion when it failed to grant Nguyen’s
    6
    motion to dismiss. An award of reasonable attorney’s fees and costs is required
    when a trial court dismisses a claimant’s health care liability claim for failing to
    serve an expert report; we must therefore remand to the trial court for a
    determination of the amount of this award. See Univ. of Tex. Health Sci. Ctr., 525
    S.W.3d at 784.
    CONCLUSION
    Having sustained Nguyen’s issues on appeal, we reverse the trial court’s
    order denying his motion to dismiss and render judgment dismissing Lavigne’s
    claims against Nguyen with prejudice. Because Nguyen requested an award of
    reasonable attorney’s fees and court costs, we remand for a determination of the
    amount of this award.
    /s/       Jerry Zimmerer
    Justice
    Panel consists of Justices Wise, Zimmerer, and Poissant.
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Document Info

Docket Number: 14-20-00185-CV

Filed Date: 7/6/2021

Precedential Status: Precedential

Modified Date: 7/12/2021