Margaret Reid v. Seton Hospital, Dr. Michael Breen and Dr. Ann Czarnik

ACCEPTED
03-16-00301-CV
12727457
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/15/2016 3:18:12 PM
JEFFREY D. KYLE
NO. 03-16-00301-CV CLERK
FILED IN
In the Third Court of Appeals 3rd COURT OF APPEALS
AUSTIN, TEXAS
Austin, Texas 9/15/2016 3:18:12 PM
JEFFREY D. KYLE
Clerk
Margaret Reid,
Appellant-Plaintiff,
v.
Seton Hospital, Michael Breen, and Ann Czarnik,
Appellees-Defendants.
On Appeal From Cause No. D-1-GN-15-003300
In the 53rd Judicial District Court of Travis County, Texas
Honorable Karen Crump, Presiding Judge
APPELLEES’ RESPONSE BRIEF ON THE MERITS
NORTON ROSE FULBRIGHT US LLP
Yvonne K. Puig (yvonne.puig@nortonrosefulbright.com)
State Bar No. 16385400
Daphne Andritsos Calderon (daphne.calderon@nortonrosefulbright.com)
State Bar No. 00793266
Eric J. Hoffman (eric.hoffman@nortonrosefulbright.com)
State Bar No. 24074427
98 San Jacinto Boulevard, Suite 1100
Austin, Texas 78701-4255
Telephone: (512) 474-5201
Facsimile: (512) 536-4598
Counsel for Appellees Seton Family of Hospitals and Michael Breen, M.D.
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Texas Rule of Appellate Procedure 38.1, Appellees supplement
Appellant’s list of trial and appellate counsel with the following:
• The correct names of Appellees are Seton Family of Hospitals,
Michael Breen, M.D., and Ann Czarnik, M.D.
• The correct name of the undersigned Appellees’ counsel is
Daphne Andritsos Calderon, not “Daphne Andritsos” as
Appellant states on Page 2 of her opening brief on the merits.
• The correct email address of Daphne Andritsos Calderon is
daphne.calderon@nortonrosefulbright.com, not
emmaprice@nortonrosefulbright.com as Appellant states on
Page 2 of her opening brief on the merits.
• The correct phone number of Daphne Andritsos Calderon is
512-536-2451, not 512-536-5452 as Appellant states on Page 2
of her opening brief on the merits.
• Trial and appellate counsel for the undersigned Appellees also
includes Norton Rose Fulbright US LLP, Yvonne K. Puig, 98
San Jacinto Blvd., Suite 1100, Austin, Texas 78701-4255.
• Appellate counsel for Appellees also includes Norton Rose
Fulbright US LLP, Eric J. Hoffman, 98 San Jacinto Blvd., Suite
1100, Austin, Texas 78701-4255.
-i-
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL ............................................................i
INDEX OF AUTHORITIES....................................................................................iv
RECORD REFERENCES ........................................................................................1
STATEMENT OF THE CASE .................................................................................2
STATEMENT REGARDING ORAL ARGUMENT ..............................................4
ISSUES PRESENTED..............................................................................................5
STATEMENT OF FACTS .......................................................................................6
SUMMARY OF THE ARGUMENT .....................................................................10
ARGUMENT ..........................................................................................................13
I. Standard of Review ............................................................................13
II. The Trial Court Did Not Abuse Its Discretion in Granting
Appellees’ Motion to Dismiss ............................................................14
A. Ms. Reid’s Belated Attempt to Comply with Texas Civil
Practice & Remedies Code Section 74.051 Did Not
Abate the Suit ...........................................................................15
1. Essential elements of notice under Chapter 74..............15
2. Ms. Reid’s abatement theory is groundless ...................18
B. An Abatement Cannot Alter Ms. Reid’s Deadline to
Serve an Expert Report ............................................................22
1. Abatement under Section 74.052(a) does not toll or
extend the 120-day deadline ..........................................23
2. There is no written agreement to extend the expert
report deadline ...............................................................30
3. Lim v. West is inapposite to this case ............................33
4. A “prejudice” analysis is inappropriate .........................37
III. The Trial Court Did Not Err by Declining to Enter Findings of
Fact and Conclusions of Law .............................................................41
A. Findings of Fact and Conclusions of Law Are Not
Required For Dismissals Under Section 74.351 ......................42
- ii -
B. Alternatively, the Record Thoroughly Indicates the Bases
of the Trial Court’s Decision ...................................................45
C. The Proper Remedy for Error, if Any, is to Abate the
Appeal to Allow the Entry of the Missing Findings ................48
CONCLUSION .......................................................................................................49
CERTIFICATE OF COMPLIANCE ......................................................................50
CERTIFICATE OF SERVICE ...............................................................................51
- iii -
INDEX OF AUTHORITIES
CASES PAGE(S)
Am. Online, Inc. v. Williams,
958 S.W.2d 268 (Tex. App.—Hous. [14th Dist.] 1997, no pet.) .............................................24
Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios,
46 S.W.3d 873 (Tex. 2001)......................................................................................................25
Badiga v. Lopez,
274 S.W.3d 681 (Tex. 2009)....................................................................................................39
Barker v. Eckman,
213 S.W.3d 306 (Tex. 2006)..............................................................................................43, 45
In re Blair,
408 S.W.3d 843 (Tex. 2013)....................................................................................................17
BMC Software Belg., N.V. v. Marchand,
83 S.W.3d 789 (Tex. 2002)......................................................................................................35
Brock v. Sutker,
215 S.W.3d 927 (Tex. App.—Dall. 2007, no pet.) ..................................................................32
Busch v. Hudson & Keyse, LLC,
312 S.W.3d 294 (Tex. App.—Hous. [14th Dist.] 2010, no pet.) .............................................48
Sw. Bell Tel. Co., L.P. v. Mitchell,
276 S.W.3d 443 (Tex. 2008)....................................................................................................14
Carreras v. Marroquin,
339 S.W.3d 68 (Tex. 2011)....................................................................................16, 17, 21, 30
Carroll v. Humsi,
342 S.W.3d 693 (Tex. App.—Austin 2011, no pet.) ...............................................................13
Certified EMS, Inc. v. Potts,
355 S.W.3d 683 (Tex. 2011)..............................................................................................14, 18
Chamberlain v. Chamberlain,
788 S.W.2d 455 (Tex. App.—Hous. 1990, writ denied) .........................................................44
CHCA Woman’s Hosp., L.P. v. Lidji,
403 S.W.3d 228 (Tex. 2013)....................................................................................................39
Cherne Indus., Inc. v. Magallanes,
763 S.W.2d 768 (Tex. 1989)....................................................................................................45
- iv -
City of Rockwall v. Hughes,
246 S.W.3d 621 (Tex. 2008)..............................................................................................14, 30
City of San Antonio v. City of Boerne,
111 S.W.3d 22 (Tex. 2003)......................................................................................................13
Cont’l Cas. Co. v. Downs,
81 S.W.3d 803 (Tex. 2002)......................................................................................................14
Crouch v. Tenneco, Inc.,
853 S.W.2d 643 (Tex. App.—Waco 1993, writ denied) .........................................................43
Davis v. Spring Branch Med. Ctr., Inc.,
171 S.W.3d 400 (Tex. App.—Hous. [14th Dist.] 2005, no pet.) .................................14, 42, 45
Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238 (Tex. 1985)....................................................................................................13
Drewery v. Adventist Health Sys./Tex., Inc.,
344 S.W.3d 498 (Tex. App.—Austin 2011, pet. denied).............................................13, 37, 38
Emeritus Corp. v. Highsmith,
211 S.W.3d 321 (Tex. App.—San Antonio 2006, pet. denied) ....................................... passim
Estate of Allen ex rel. Allen v. Scott & White Clinic,
No. 03-08-00576-CV, 2011 WL 2993259 (Tex. App.—Austin July 22, 2011,
no pet.) (mem. op.) ...................................................................................................................38
Etheredge v. McCarty,
No. 05-05-00164-CV, 2006 WL 1738258 (Tex. App.—Dall. June 27, 2006,
no pet.) (mem. op.) .............................................................................................................37, 38
Gajewski v. Jackson,
351 S.W.3d 608 (Tex. App.—El Paso 2011, no pet.) ..............................................................39
Garcia v. Gomez,
319 S.W.3d 638 (Tex. 2010)....................................................................................................17
Gulf Coast Med. Ctr., LLC v. Temple,
No. 13-09-00350-CV, 2010 WL 196972 (Tex. App.—Corpus Christi-
Edinburgh Jan. 21, 2010, no pet.) (mem. op.) ...................................................................28, 29
Hagedorn v. Tisdale,
73 S.W.3d 341 (Tex. App.—Amarillo 2001, no pet.) ..................................................... passim
HCBeck, Ltd. v. Rice,
284 S.W.3d 349 (Tex. 2009)..............................................................................................14, 40
-v-
IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp.,
938 S.W.2d 440 (Tex. 1997)........................................................................................42, 43, 45
Intracare Hosp. N. v. Campbell,
222 S.W.3d 790 (Tex. App.—Hous. [1st Dist.] 2007, no pet.) ...............................................39
In re J.I.T.P.,
99 S.W.3d 841 (Tex. App.—Hous. [14th Dist.] 2003, no pet.) ...............................................47
Lal v. Harris Methodist Fort Worth,
230 S.W.3d 468 (Tex. App.—Fort Worth 2007, no pet.) ..................................................37, 38
Lim v. West,
No. 01-08-00469-CV, 2008 WL 4670991 (Tex. App.—Hous. [1st Dist.] Oct.
23, 2008, pet. denied) (mem. op.) .................................................................................... passim
McWashington v. Harris Cnty. Hosp. Dist.,
208 S.W.3d 64 (Tex. App.--Hous. [14th Dist.] 2006, no pet.) ..............................22, 28, 29, 34
Mocega v. Urquhart,
79 S.W.3d 61 (Tex. App.—Hous. [14th Dist.] 2002, pet. denied) .................................. passim
Mokkala v. Mead,
178 S.W.3d 66 (Tex. App.—Hous. [14th Dist.] 2005, pet. denied) ..................................39, 40
Olgetree v. Matthews,
262 S.W.3d 316 (Tex. 2007)..............................................................................................39, 41
Permanente Med. Assoc. of Tex. v. Johnson,
917 S.W.2d 515 (Tex. App.—Waco 1996, no writ) ................................................................22
Quint v. Alexander,
No. 03-04-00819-CV, 2005 WL 2805576 (Tex. App.—Austin Oct. 28, 2005,
pet. denied) (mem. op.) ................................................................................................19, 20, 21
Sandles v. Howerton,
163 S.W.3d 829 (Tex. App.—Dall. 2005, no pet.) ..................................................................45
Schepps v. Presbyterian Hosp. of Dall.,
652 S.W.2d 934 (Tex. 1983)....................................................................................................21
Scoresby v. Santillan,
346 S.W.3d 546 (Tex. 2011)....................................................................................................40
Smalling v. Gardner,
203 S.W.3d 354 (Tex. App.—Hous. [14th Dist.] 2005, pet. denied) ..........................42, 43, 45
- vi -
SMI/USA, Inc. v. Profile Techs., Inc.,
38 S.W.3d 205 (Tex. App.—Waco 2001, no pet.)...................................................................43
Spectrum Healthcare Res. v. McDaniel,
306 S.W.3d 249 (Tex. 2010)........................................................................................32, 36, 37
Stockton v. Offenbach,
336 S.W.3d 610 (Tex. 2011)....................................................................................................38
Sullivan v. Barnett,
471 S.W.2d 39 (Tex. 1971)......................................................................................................43
Tenery v. Tenery,
932 S.W.2d 29 (Tex. 1996)......................................................................................................44
Tex. Dep’t of Transp. v. City of Sunset Valley,
146 S.W.3d 637 (Tex. 2004)....................................................................................................14
Tomasi v. Liao,
63 S.W.3d 62 (Tex. App.—San Antonio 2001, no pet.) ..........................................................42
Vick v. Rangel,
No. 04-05-00362-CV, 2005 WL 2438375 (Tex. App.—San Antonio Oct. 5,
2005, no pet.) (mem. op.) .........................................................................................................40
Watts v. Oliver,
396 S.W.3d 124 (Tex. App.—Hous. [14th Dist.] 2013, no pet.) .............................................47
Winters v. Chubb & Son, Inc.,
132 S.W.3d 568 (Tex. App.—Hous. [14th Dist.] 2004, no pet.) .............................................42
STATUTES
TEX. CIV. PRAC. & REM. CODE Chapter 74 ............................................................................ passim
TEX. CIV. PRAC. & REM. CODE § 74.051 ................................................................................ passim
TEX. CIV. PRAC. & REM. CODE § 74.051(a) .......................................................................15, 16, 26
TEX. CIV. PRAC. & REM. CODE § 74.051(c) .......................................................................15, 16, 30
TEX. CIV. PRAC. & REM. CODE § 74.052 ................................................................................ passim
TEX. CIV. PRAC. & REM. CODE § 74.052(a) ........................................................................... passim
TEX. CIV. PRAC. & REM. CODE § 74.052(c) ...................................................................................18
TEX. CIV. PRAC. & REM. CODE § 74.351 ................................................................................ passim
- vii -
TEX. CIV. PRAC. & REM. CODE § 74.351(a) ........................................................................... passim
TEX. CIV. PRAC. & REM. CODE § 74.351(b) .............................................................................15, 41
TEX. CIV. PRAC. & REM. CODE § 74.351(b)(2) ........................................................................37, 38
TEX. CIV. PRAC. & REM. CODE § 74.351(r)(6) ...............................................................................41
TEX. FAM. CODE § 154.130(a)(3) ...................................................................................................44
TEX. GOV’T CODE § 311.016(2) .....................................................................................................17
TEX. GOV’T CODE § 311.016(3) .....................................................................................................17
TEX. GOV’T CODE § 311.023(1) .....................................................................................................14
TEX. GOV’T CODE § 311.023(5) .....................................................................................................14
TEX. REV. CIV. STAT. art. 4590i ...............................................................................................25, 40
TEX. REV. CIV. STAT. art. 4590i, § 13.01(d) ..................................................................................24
TEX. REV. CIV. STAT. art. 4590i, § 13.01(d)(1)..............................................................................38
RULES OF PROCEDURE
TEX. R. APP. P. 44.4 .......................................................................................................................48
TEX. R. APP. P. 44.4(b)...................................................................................................................48
TEX. R. CIV. P. 11 ...........................................................................................................................31
TEX. R. CIV. P. 296 ...........................................................................................................................8
TEX. R. CIV. P. 297 ...........................................................................................................................8
TEX. R. CIV. P. 329b(c) ................................................................................................................3, 9
- viii -
RECORD REFERENCES
The record on appeal is composed of one volume of the Clerk’s Record.
The Clerk’s Record will be abbreviated “CR” and will be cited by reference to the
appropriate page number within the single-volume transcript. (e.g., CR 26). The
Reporter’s Record consists of one volume of transcription of a hearing on
Appellees’ Motions to Dismiss. The Reporter’s Record will be abbreviated “RR”
and will be cited by reference to the appropriate page number within the single-
volume transcript. (e.g., RR 10).
Selected documents are included in Appellees’ Appendix, which will be
cited as “Appx. Tab ___”, followed by the corresponding tab number (e.g., Appx.
Tab 1).
-1-
STATEMENT OF THE CASE
On August 10, 2015, Appellant-Plaintiff Margaret Reid (“Ms. Reid”)
brought suit against Michael Breen, M.D. (“Dr. Breen”), Ann Czarnik, M.D (“Dr.
Czarnik”), and Seton Family of Hospitals (“Seton”) (collectively, “Appellees”) for
alleged medical negligence associated with a total hysterectomy. CR 3-8. As to
Dr. Breen, Ms. Reid specifically alleged he was negligent in the performance of
the surgery and as to Dr. Czarnik, that she was negligent in the provision of
emergency medical services. CR 7-8. Seton was sued only under vicarious
liability theories for the conduct of the physicians. CR 9-10.
It is undisputed that the underlying matter is a health care liability case
subject to the requirements of Chapter 74 of the Texas Civil Practice & Remedies
Code. CR 47.
On September 4, 2015, Seton and Dr. Breen each timely filed Original
Answers to the Original Petition denying liability and noting that Ms. Reid failed
to comply with Chapter 74’s notice requirements. CR 11, 13, 19-20. Seton and
Dr. Breen subsequently filed a Motion to Dismiss Ms. Reid’s Original Petition
with prejudice when she failed to timely serve any Chapter 74 expert report within
120 days of the filing of Seton’s and Dr. Breen’s Original Answers. CR 29-35.
Dr. Czarnik filed a separate but similar motion to dismiss. CR 38-46. On February
4, 2016, the trial court held a hearing on all pending motions and after argument
-2-
from the parties, the trial court granted Seton’s and Dr. Breen’s Motion to Dismiss
with prejudice by Order of the same date. CR 86-87 (Appx. Tab 1).
Ms. Reid filed a request for Findings of Fact and Conclusion of Law on
February 4, 2016. CR 88. She subsequently timely filed a Motion for New Trial,
CR 94-100, which was overruled by operation of law on April 19, 2016. See TEX.
R. CIV. P. 329b(c). This appeal followed. CR 101-102.
-3-
STATEMENT REGARDING ORAL ARGUMENT
Dr. Breen and Seton respectfully request oral argument on this case as such
argument will aid the court in resolution of this appeal.
-4-
ISSUES PRESENTED
1. Did the trial court abuse its discretion in granting Seton’s and Dr.
Breen’s Motion to Dismiss under Texas Civil Practice & Remedies Code Chapter
74? [Restatement of Appellant’s Issues 1, 2, and 3]
A. Did Ms. Reid’s notice of claim and medical authorization
automatically abate the lawsuit? [Restatement of Appellant’s
Issues 1 and 2]
B. If the lawsuit was abated, did such abatement toll the 120-day
period in which Ms. Reid was required to serve an expert report
where the deadline fell after the conclusion of the abatement
period? [Restatement of Appellant’s Issue 3]
2. Did the trial court abuse its discretion in declining to file Findings of
Fact and Conclusions of Law as requested by Ms. Reid? [Restatement of
Appellant’s Issue 5]
-5-
STATEMENT OF FACTS
This is a health care liability case arising out of injuries allegedly sustained
by Appellant-Plaintiff Margaret Reid after she underwent a hysterectomy surgery
performed by Dr. Breen. CR 4-5, 7-8. On August 10, 2015, Ms. Reid filed suit
against Seton, Dr. Breen, and Dr. Czarnik alleging that negligent care and
treatment rendered by Dr. Breen during the surgery, and rendered by Dr. Czarnik
after the surgery, proximately caused her injuries. CR 3, 7-8. Apparently due her
experiences post-surgery, Ms. Reid asserted a claim for intentional infliction of
emotional distress against Dr. Czarnik only, arising out of Dr. Czarnik’s medical
treatment in the emergency room setting. CR 9. Ms. Reid also asserted that Seton
was vicariously liable for the conduct of Dr. Breen and Dr. Czarnik based on
agency and respondeat superior theories. CR 9-10.
On September 4, 2015, Seton and Dr. Breen each timely filed Original
Answers, Special Exceptions, and Verified Denials to the Original Petition. CR
11, 19. Both responsive pleadings included verified denials stating under oath that
Ms. Reid did not provide a notice of claim letter with medical authorization to
Seton and Dr. Breen before the filing of her petition as required by Texas Civil
Practice & Remedies Code Section 74.051, et seq. CR 13, 17, 20, 23. Dr. Czarnik
subsequently filed an Original Answer and General Denial, which included as an
-6-
affirmative defense that Ms. Reid had failed to provide the required pre-suit notice
and authorization under the Texas Medical Liability Act. CR 27.
On October 1, 2015, counsel for Ms. Reid sent notice of claim letters and
accompanying medical authorizations to Seton and Dr. Breen. CR 70, 77-78
(Appx. Tab 2; Appx. Tab 3). In a section entitled “STIPULATION”, the letters
stated “[w]e hereby stipulate, in response to the exception raised in your original
answer to plaintiff’s suit, that the plaintiff’s lawsuit has been filed without prior
notice to you and without furnishing you with a medical authorization form as
required in 74.052 of the code.” CR 76. The letters continued that the notice was
“therefore intended to cure that pleading defect[,]” and was “also intended to abate
the lawsuit for sixty days after your receipt of this letter in accordance with the
relevant rules.” Id.
At no time did Seton or Dr. Breen file pleas in abatement or otherwise
request an abatement from the trial court. At no time after Seton and Dr. Breen
answered the lawsuit did Ms. Reid tender to Seton or Dr. Breen any proposed order
on abatement for consideration or negotiation and, as the record reflects, no order
granting abatement was ever entered by the court. Further, neither Seton nor Dr.
Breen ever entered into any Rule 11 or other agreement with Ms. Reid to abate the
case or to extend her deadline to serve expert reports under Texas Civil Practice &
Remedies Code Section 74.351. RR 32.
-7-
The deadline for Ms. Reid to serve a Chapter 74 expert report as to Seton
and Dr. Breen expired on January 4, 2016, without service of any report upon
them. RR 37. Thus, on January 19, 2016, Seton and Dr. Breen filed a Motion to
Dismiss Ms. Reid’s Original Petition with prejudice for failure to serve an expert
report within 120 days of Seton’s and Dr. Breen’s Original Answers pursuant to
Texas Civil Practice & Remedies Code Section 74.351. CR 29-35. Dr. Czarnik
also filed a Chapter 74 Motion to Dismiss as to the claims against her. CR 38-46.
Ms. Reid responded to the motions by urging that the deadline to provide the
Chapter 74 report was subject to abatement, CR 49-51, and also moved for
sanctions against Seton and Dr. Breen, asserting that the motion to dismiss was
frivolous and groundless. CR 51-52. On February 4, 2016, the trial court held a
hearing on the pending motions and granted Seton’s and Dr. Breen’s Motion to
Dismiss with prejudice and denied Ms. Reid’s motion for sanctions. CR 86-87,
Appx. Tab 1. The trial court also granted Dr. Czarnik’s Motion to Dismiss with
prejudice on the same day. CR 81.
Later on February 4, 2016, Ms. Reid filed a Request for Findings of Fact and
Conclusions of Law pursuant to Rules 296 and 297 of the Texas Rules of Civil
Procedure and subsequently filed a Notice of Past-Due Findings of Fact and
Conclusions of Law. CR 88-89, 92-93. Ms. Reid then filed a Motion for New
-8-
Trial on March 2, 2016, CR 94-100, which Motion was overruled by operation of
law at the expiration of 75 days. See TEX. R. CIV. P. 329b(c).
This appeal followed. CR 101-102.
-9-
SUMMARY OF THE ARGUMENT
It is undisputed that Ms. Reid asserted health care liability claims against
Seton and Dr. Breen but wholly failed to serve Seton or Dr. Breen with any expert
report as required by Chapter 74 of the Texas Civil Practice & Remedies Code. It
is equally undisputed that there is no court order granting a plea in abatement or
extending any deadlines in the underlying case, and that the parties never entered
into a Rule 11 Agreement to extend the deadline for Ms. Reid to serve an expert
report. Thus, the trial court’s order dismissing Ms. Reid’s claims against Seton
and Dr. Breen for failing to serve any report must be affirmed.
That Ms. Reid provided a notice of claim and medical authorization on
October 1, 2015—after the filing of her original petition—is of no consequence.
Her belated provision of the notice and authorization required by Texas Civil
Practice & Remedies Code Sections 74.051 and 74.052 did not automatically abate
the lawsuit for 60 days because there was no court order or other affirmative act by
the parties effectuating such an abatement. Concomitantly, an abatement cannot
alter the 120-day period to serve expert reports in this lawsuit, and nothing in the
statute or case law can support Ms. Reid’s interpretation.
To the contrary, pursuant to the statute, an abatement is intended to provide
the defendant with a 60-day period upon receipt of a proper pre-suit notice and
medical authorization in which he or she can evaluate whether to resolve a claim,
- 10 -
not to extend deadlines attendant to health care claims after they are filed. To that
end, even where abatement does occur, Texas courts have consistently held that
abatement does not toll a plaintiff’s 120-day deadline to serve an expert report
where the 120-day deadline falls after the conclusion of the abatement period.
Pursuant to mandatory provisions of Chapter 74, the only mechanism
available to extend the statutory deadline to serve an expert report is the filing of a
Rule 11 Agreement between the affected parties. There was no Rule 11
Agreement as between the parties here. Thus, in the absence of an agreement, Ms.
Reid failed to serve an expert report within 120 days of the filing of Seton’s and
Dr. Breen’s Original Answers, and the trial court had no discretion but to grant the
Motion to Dismiss with prejudice. Because Ms. Reid cannot establish that the trial
court abused its discretion in ruling that she failed to timely serve any expert report
as to Seton or Dr. Breen, the trial court’s order granting the Motion to Dismiss
cannot and should not be reversed.
Ms. Reid also contends the trial court erred in declining to file findings of
fact and conclusions of law pursuant to her request, but has failed to cite any case
law requiring such action by the trial court in the context of a Chapter 74 dismissal.
Alternatively, even if the trial court erred in declining to file findings of fact and
conclusions of law, Ms. Reid has failed to establish she suffered any harm by the
trial court’s decision to not file findings of fact and conclusions of law, and is in no
- 11 -
way prevented from presenting her case on appeal. To be sure, the correct
procedure when a party is harmed by the absence of findings of fact and
conclusions of law is not to reverse the trial court’s decision, but to abate the
appeal and remand to the trial court to enter findings of fact and conclusions of
law.
Consequently, Seton and Dr. Breen respectfully request that this Court
affirm the trial court’s grant of their motion to dismiss.
- 12 -
ARGUMENT
I. Standard of Review
A trial court’s decision to grant a motion to dismiss for failure to timely file
an expert report under Texas Civil Practice & Remedies Code Section 74.351 is
reviewed for an abuse of discretion. Carroll v. Humsi, 342 S.W.3d 693, 696 (Tex.
App.—Austin 2011, no pet.). A trial court abuses its discretion by acting
arbitrarily, unreasonably, or without consideration of guiding legal principles. See,
e.g., Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
Where an expert report is not timely served, however, the trial court has no
discretion but to dismiss a health care liability claim. See Drewery v. Adventist
Health Sys./Tex., Inc., 344 S.W.3d 498, 507 (Tex. App.—Austin 2011, pet.
denied).
When the issue requires interpretation of the statute itself, the standard of
review is de novo. See Carroll, 342 S.W.3d at 696 (“[T]o the extent that our
analysis requires us to construe chapter 74—a question of law—we apply a de
novo standard.” (citing City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25
(Tex. 2003))). Likewise, the standard of review for determining whether an
abatement occurred and whether an abatement tolled the deadline for filing expert
reports under Chapter 74 is also de novo. Hagedorn v. Tisdale, 73 S.W.3d 341,
347-49 (Tex. App.—Amarillo 2001, no pet.).
- 13 -
In conducting this analysis, the appellate court relies “on the plain meaning
of the text unless such a construction leads to absurd results.” Certified EMS, Inc.
v. Potts, 355 S.W.3d 683, 690 (Tex. 2011) (citing City of Rockwall v. Hughes, 246
S.W.3d 621, 625-26 (Tex. 2008)). The court is to consider the statute as a whole,
not its provisions in isolation, Cont’l Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex.
2002), abrogated on other grounds by Sw. Bell Tel. Co., L.P. v. Mitchell, 276
S.W.3d 443, 444 (Tex. 2008), and also “consider the objective the Legislature
sought to achieve through the statute, as well as the consequences of a particular
construction.” HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 352 (Tex. 2009) (citing Tex.
Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004); TEX.
GOV’T CODE § 311.023(1), (5)).
A trial court’s decision to decline to file findings of fact and conclusions of
law following a Chapter 74 dismissal is reviewed for an abuse of discretion. See
Davis v. Spring Branch Med. Ctr., Inc., 171 S.W.3d 400, 413-14 (Tex. App.—
Hous. [14th Dist.] 2005, no pet.).
II. The Trial Court Did Not Abuse Its Discretion in Granting Appellees’
Motion to Dismiss
The threshold question on appeal is whether the notice of claim and medical
authorization provided by Ms. Reid in October 2015 automatically abated the
lawsuit for 60 days. Because the plain language of the statute and applicable case
law dictate a “no” answer to the question, and because Ms. Reid did not serve an
- 14 -
expert report upon Seton and Dr. Breen within 120 days of the filing of their
Original Answers, RR 37, the trial court’s decision to grant Seton’s and Dr.
Breen’s Motion to Dismiss was proper. See TEX. CIV. PRAC. & REM. CODE §§
74.351(a)-(b) (requiring dismissal with prejudice where health care liability
claimant fails to serve expert report within 120 days of the filing of defendant’s
answer) (Appx. Tab 4).
A. Ms. Reid’s Belated Attempt to Comply with Texas Civil Practice
& Remedies Code Section 74.051 Did Not Abate the Suit
1. Essential elements of notice under Chapter 74.
In this health care liability suit, Ms. Reid was required to comply with the
notice provisions of Chapter 74 including Section 74.051, which specifically
provides:
Any person or his authorized agent asserting a health care liability
claim shall give written notice of such claim by certified mail, return
receipt requested, to each physician or health care provider against
whom such claim is being made at least 60 days before the filing of a
suit in any court of this state based upon a health care liability claim.
The notice must be accompanied by the authorization form for release
of protected health information as required under Section 74.052.
TEX. CIV. PRAC. & REM. CODE § 74.051(a) (emphasis added) (Appx. Tab 5).
Notice provided in accordance with Sections 74.051 and 74.052 “shall toll the
applicable statute of limitations to and including a period of 75 days following the
giving of the notice, and this tolling shall apply to all parties and potential parties.”
Id. § 74.051(c).
- 15 -
A plain reading of Section 74.051 reveals that timely provision of the notice
and medical authorization form affords a would-be plaintiff a tolling of the statute
of limitations for the filing of a health care liability lawsuit for a period of 75 days,
not a tolling of the 120 day deadline to file an expert report under Section 74.351.
See Carreras v. Marroquin, 339 S.W.3d 68, 69 (Tex. 2011) (“[P]roviding notice of
a health care liability claim will toll the statute of limitations for seventy-five days,
if the notice is ‘given as provided’ in Chapter 74.” (quoting TEX. CIV. PRAC. &
REM. CODE § 74.051(c))).
As set forth in controlling Texas case law, the Chapter 74 notice must be
accompanied by a medical authorization in accordance with Section 74.052(a) and
it is the failure to provide the authorization with the notice that may result in
abatement of further proceedings against the health care provider for 60 days. See
Carreras, 339 S.W.3d at 72 (citing TEX. CIV. PRAC. & REM. CODE §§ 74.051(a),
.052(a)). To be clear, Section 74.052(a) expressly provides that the failure of the
plaintiff to provide the requisite authorization “along with the notice of health care
claim shall abate all further proceedings against the physician or health care
- 16 -
provider receiving the notice until 60 days following receipt” of the authorization
by the defendant. TEX. CIV. PRAC. & REM. CODE § 74.052(a) (Appx. Tab 6).1
It is axiomatic that a pre-suit notice requirement is just that—it is intended to
be furnished before the lawsuit is filed, not after. Indeed, case law interpreting this
provision explains that the purpose of the pre-suit notice and authorization is
intended to allow potential defendants the opportunity to obtain information and
determine whether the claim should be resolved without litigation. See, e.g.,
Carreras, 339 S.W.3d at 73 (holding purpose of notice provision “is to encourage
negotiations and settlement of disputes, prior to suit, thereby reducing litigation
costs.” (citing Garcia v. Gomez, 319 S.W.3d 638, 643 (Tex. 2010))). That the
statute provides abatement only if the authorization is not provided with the notice
is significant in explaining the purpose of the pre-suit notice at the start. A valid
medical authorization for the release of protected health information allows a
potential defendant to obtain the medical records of the claimant in advance of
litigation so that the extent of injury or damages can arguably be assessed by the
would-be defendant and a determination can be made regarding pre-suit resolution.
In fact, the form prescribed by the statute expressly states that the authorization is
1
Contrary to any suggestion by Ms. Reid that the statute provides that such proceedings “must
be abated” until 60 days after receipt of the authorization, Open. Br. at 15 (emphasis added), the
operative term is “shall abate.” TEX. CIV. PRAC. & REM. CODE § 74.052(a); cf. In re Blair, 408
S.W.3d 843, 861 (Tex. 2013) (“[W]ith limited exceptions, when a statute uses the term ‘must,’ it
‘creates or recognizes a condition precedent[;]’ when a statute uses the term ‘shall,’ it imposes a
duty . . . .” (quoting TEX. GOV’T CODE § 311.016(3), .016(2))).
- 17 -
intended to facilitate “investigation and evaluation of a health care claim.” TEX.
CIV. PRAC. & REM. CODE § 74.052(c). Here, the filing of the lawsuit before Ms.
Reid provided notice and authorization entirely precluded Seton and Dr. Breen
from that pre-suit opportunity.
2. Ms. Reid’s abatement theory is groundless.
It is clear that Ms. Reid failed to comply with the notice provisions of
Sections 74.051 and 74.052. CR 76. Nonetheless, Ms. Reid argues that by
providing the notice of claim and medical authorization in October 2015—after the
filing of her lawsuit—her claims were “effectively abated for 60 days from the
receipt of that notice . . . even if these documents were not filed with the court; or
even if abatement was not agreed upon by the parties.” Open. Br. at 10. In support
of this argument, Ms. Reid appears to contend that because Section 74.052 does
not contain language explicitly requiring a plea in abatement or the invocation of a
“court’s involvement for this abatement to apply[,]” id. at 15, the opposite must be
true—that a plaintiff can unilaterally “self-abate” a case at will where she failed to
comply with the notice provisions of Section 74.051 before filing suit. Ms. Reid’s
interpretation is not supported by any authority or a plain reading of the statute.
See Certified EMS, 355 S.W.3d at 690.
By their Original Answers, Seton and Dr. Breen each asserted by Verified
Denial that Ms. Reid failed to provide the pre-suit notice required by Section
- 18 -
74.051. CR 13, 20. At no time, however, did Seton or Dr. Breen ever
affirmatively seek an abatement of the proceedings, CR 11-24, nor did their
Verified Denials even mention abatement. CR 13, 20. Their Verified Denials
simply asserted that Ms. Reid filed suit in violation of Section 74.051. CR 13, 20.
Ms. Reid belatedly provided the required notice and authorization, which
contained a “Stipulation” indicating that the notice was “intended to abate the
lawsuit for sixty days after your receipt of this letter in accordance with the
relevant rules.” CR 76, Appx. Tab 2; Appx. Tab 3. However, neither before the
trial court, nor in this appeal, has Ms. Reid identified any authority in support of
the proposition that a plaintiff can bypass the court and unilaterally cause a health
care liability claim to be abated without court order.
To the contrary, this Court has held that a plaintiff cannot unilaterally abate
a case without court order for the purpose of extending the expert report deadline.
See Quint v. Alexander, No. 03-04-00819-CV, 2005 WL 2805576, at *4 (Tex.
App.—Austin Oct. 28, 2005, pet. denied) (mem. op.). In Quint, the plaintiff
asserted a health care liability claim but filed the original petition only five days
after providing the notice of intent to file suit. Id. After the plaintiff failed to serve
an expert report on the physician defendant or his attorney before the 120-day
deadline, upon the defendant’s motion, the district court dismissed the plaintiff’s
- 19 -
claim for failure to timely serve an expert report under Section 74.351(a).2 Id. at
*2. Among several appellate arguments, the plaintiff urged she had “self-abated”
the case because she voluntarily waited 60 days before amending the original
petition, serving the defendant with the petition, or taking any other action. Id. at
*4. Because of such “self-abatement,” the plaintiff contended that the 120-day
window for service of the expert report actually commenced at the end of her 60-
day period of voluntary delay, such that the deadline did not expire until a full 180
days after the filing of the original petition. Id.
This Court rejected the plaintiff’s argument, finding that the plain language
of Section 74.351 required service of the expert report to be made within 120 days
after the date the claim was filed under the former version of the statute. Id. (citing
TEX. CIV. PRAC. & REM. CODE § 74.351(a) (West 2005)). This Court held the “fact
that [the plaintiff] filed the claim before the expiration of the 60-day pre-suit notice
period in no way changes the requirement that she serve the expert report by the
120th day after filing the original petition.” Id.
Significantly, this Court found that the defendant “never requested, and the
court never entered, an order of abatement” in that case. Id. This Court stated that
2
At the time Quint was decided, Section 74.351(a) required the service of an expert report not
later than the 120th day after the date the claim was filed. See TEX. CIV. PRAC. & REM. CODE §
74.351(a) (West 2005). Under the 2013 amendments to Chapter 74, Section 74.351 was
amended so that the 120-day deadline is now triggered by the date the defendant’s answer is
filed. TEX. CIV. PRAC. & REM. CODE § 74.351(a) (West 2016).
- 20 -
although the defendant in a health care liability claim may request the abatement of
a case when the plaintiff fails to provide the required pre-suit notice, “we are
unaware of any authority that allows a plaintiff to abate a case without judicial
permission in order to extend the statutory service deadline.” Id. (citing Schepps v.
Presbyterian Hosp. of Dall., 652 S.W.2d 934, 938 (Tex. 1983)) (emphasis added).
Accordingly, this Court rejected the plaintiff’s position that her voluntary delay
extended the time for filing the expert report, and affirmed the trial court’s
dismissal of her claims. Id. at *4-5.
As in Quint, Seton and Dr. Breen never affirmatively requested abatement,
nor did the trial court ever enter any order abating the case. Consistent with this
Court’s holding in Quint, the Court must reject Ms. Reid’s contention that a
plaintiff can unilaterally abate a case on account of her failure to initially comply
with Chapter 74’s notice and medical authorization requirements.
In the absence of any authority in support of her “self-abatement” argument,
Ms. Reid urges that “it is not reasonable to expect that there will be any filing with
any court or any Rule 11 agreement before the triggering of 74.052(a).” Open. Br.
at 11. Ms. Reid’s argument simply belies the fact that numerous cases—including
several cases referenced in Appellant’s Brief—addressing whether abatement can
extend the expert report deadline implicated an order of abatement entered by the
court. See, e.g., Carreras, 339 S.W.3d at 70 (Tex. 2011) (trial court granted plea
- 21 -
in abatement); Hagedorn, 73 S.W.3d at 347 (trial court entered agreed order of
abatement); Permanente Med. Assoc. of Tex. v. Johnson, 917 S.W.2d 515, 516
(Tex. App.—Waco 1996, no writ) (trial court granted plea in abatement); Lim v.
West, No. 01-08-00469-CV, 2008 WL 4670991, at *2 (Tex. App.—Hous. [1st
Dist.] Oct. 23, 2008, pet. denied) (mem. op.) (trial court entered agreed order of
abatement).
B. An Abatement Cannot Alter Ms. Reid’s Deadline to Serve an
Expert Report
Even assuming Ms. Reid unilaterally abated the case by her belated
provision of notice and authorization, Texas case law is clear that service of a pre-
suit notice with authorization after a lawsuit is filed and after the defendants have
answered does not toll or extend the 120-day period for service of the expert
report, regardless of whether it achieves a 60-day abatement. See, e.g.,
McWashington v. Harris County Hosp. Dist., 208 S.W.3d 64, 69 (Tex. App.—
Hous. [14th Dist.] 2006, no pet.) (abatement of case under TEX. CIV. PRAC. & REM.
CODE § 74.052(a) does not toll or extend 120-day period for filing expert report);
Hagedorn, 73 S.W.3d at 347-49 (without agreement to extend time to serve expert
report, agreed abatement on plaintiff’s failure to provide 60 days written notice of
claim did not affect deadline to serve the report). Therefore, despite the fact that
Ms. Reid ultimately provided a notice letter and authorization, the 120-day expert
- 22 -
report deadline continued to run and then expired on January 4, 2016, without Ms.
Reid ever having timely served the requisite report on Dr. Breen or Seton. RR 37.
Ms. Reid erroneously contends that, assuming abatement occurred, the issue
for this Court is whether an expert report was due during the abatement period.
Open. Br. at 16-21 (section entitled “No Expert Report Due During Abatement of
Suit”); id. at 16 (“Thus the question remaining as a matter of law is whether an
expert report is required to be filed for a lawsuit in abatement.”); id. at 21
(“Plaintiff only asserts that by sending the notice and authorization, her lawsuit
was abated; and that during an abatement of the suit, there is no requirement that
she file her expert report.”). However, the applicable issue here, if any, is whether
an abatement of the suit would have tolled or extended the 120-day deadline for
Ms. Reid to serve the expert report required by Section 74.351(a). Therefore, any
arguments by Ms. Reid regarding whether any proceedings could occur during the
purported abatement period or whether an expert report could be served during a
period of abatement are entirely irrelevant to this case, and should be rejected by
the Court.
1. Abatement under Section 74.052(a) does not toll or extend
the 120-day deadline.
Numerous Texas courts have held that any abatement period following the
belated service of notice and authorization under Section 74.052(a) does not toll or
extend the statutory deadline for service of the expert report.
- 23 -
In Hagedorn v. Tisdale, a patient asserted a health care liability claim
against his physician but failed to give the required pre-suit notice. 73 S.W.3d
341, 345 (Tex. App.—Amarillo 2002, no pet.). The defendant filed a plea in
abatement, and the case was abated by agreed order under the predecessor of
Section 74.051, for 60 days. Id. at 347. After the period of abatement ended, the
plaintiff served an expert report past the 180-day expert report deadline. Id. (citing
TEX. REV. CIV. STAT. art. 4590i, § 13.01(d) (repealed)). The trial court dismissed
the case, finding that the report was not timely served. Id. at 345.
On appeal, the plaintiff made the same argument as Ms. Reid here. Id. at
347 (“[Plaintiff] contends the abatement left him with no power to prosecute his
claims, and he could not have filed his report during the time of abatement.
However, we note that [plaintiff] still had almost three months after the abatement
ended to file his report. Thus, the issue for determination is whether the abatement
extended the time period.”). The Amarillo Court of Appeals acknowledged that
abatement is often considered a suspension of all proceedings in a lawsuit, but
noted that certain actions may be taken during an abatement, such as the joinder of
parties and the dismissal of the cause of action. Id. (citations omitted). The court
also noted that the “effect of the abatement is to keep the defendant free of
litigation during the abatement period.” Id. at 348 (citing Am. Online, Inc. v.
- 24 -
Williams, 958 S.W.2d 268, 277 (Tex. App.—Hous. [14th Dist.] 1997, no pet.))
(emphasis added).
The court then focused on the purpose of Article 4590i, the predecessor to
Chapter 74, which was “to curtail frivolous claims against physicians and other
health care providers.” Id. In light of the purpose of Article 4590i, the court
reasoned that to extend the time to serve expert reports because of a plaintiff’s
failure to comply with the pre-suit notice requirement would reward the plaintiff
for not complying with the law. Id. The court noted that the resulting Hobson’s
choice for defendants was unacceptable:
[A] health care provider would be placed in the position of having to
choose whether to seek an abatement for the failure of the plaintiff to
give him the statutorily required 60-day notice or to hold the plaintiff
to the statutorily required deadline for filing the expert report. We
cannot believe that the intent of the legislature to discourage frivolous
lawsuits and encourage settlement of claims would be served by such
a construction, since the legislature has determined that failing to
timely file an expert report means that the claim is either frivolous or
at best has been prematurely brought.
Id. (citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,
878 (Tex. 2001)).
The court further “fail[ed] to see how the claimant is damaged by being
required to adhere to the statutory requirement[,]” noting that the plaintiff “to some
extent chooses when to file his lawsuit and, at the time of filing, knows he has 180
days to serve his expert medical report.” Id. Accordingly, the court held that the
- 25 -
abatement did not extend the plaintiff’s deadline for providing expert reports, and
affirmed the trial court’s dismissal. Id. at 349, 354.
Ms. Reid criticizes any reliance on Hagedorn because that “court reached no
decision as to whether a medical expert report could be filed during the abatement
period if the 180 day deadline occurred during that time.” Open. Br. at 20. But the
question for the Hagedorn Court—whether an intervening abatement tolled the
deadline to file an expert report where the deadline fell outside of the abatement
period—is precisely the question for consideration here. And the court in
Hagedorn concluded the expert report was untimely because it was filed after the
180-day period (as required under Section 74.351’s predecessor statute) had run,
despite the fact that a portion of the 180-day period was abated. Hagedorn, 73
S.W.3d at 349.3
Similarly, in Emeritus Corporation v. Highsmith, the trial court abated the
lawsuit for 60 days after the plaintiff failed to provide the defendants with the
statutorily required pre-suit notice under Section 74.051(a). 211 S.W.3d 321, 324
(Tex. App.—San Antonio 2006, pet. denied). Because the court’s order simply
abated the case “until 60 days from the date [defendant] receive[d] notice of a
3
Appellant states that Hagedorn “explicitly states that even after the abatement, the plaintiff
failed to file the report although he had three months to do so.” Open. Br. at 20. Though the
plaintiff in Hagedorn had slightly less than three months to file, see Hagedorn, 73 S.W.3d at
341, Dr. Breen and Seton agree that the plaintiff in that case had time after the abatement period
ended in which to comply with the expert report deadline, much like Appellant would have had
here if abatement actually occurred.
- 26 -
health care claim . . . and authorization[,]” without specifying a specific date for
the conclusion of the abatement period, the parties agreed that the abatement
period would end on a specific date. Id. The plaintiff’s deadline to serve an expert
report fell after the period of abatement ended, but the plaintiff failed to serve a
report by this date. Id. The trial court denied the defendants’ motion to dismiss,
and instead retroactively granted an extension for the plaintiff to comply with
Chapter 74’s expert report deadline. Id. at 325.
The San Antonio Court of Appeals reversed the trial court’s decision,
finding that “an agreement to abate a case to permit a plaintiff to comply with the
sixty-day notice requirement does not in and of itself extend the time for serving an
expert report.” Id. at 330. The court found persuasive the Hagedorn court’s
reasoning that a plaintiff should neither be rewarded for failing to comply with
Chapter 74’s pre-suit notice requirements, nor would a plaintiff be damaged by
being required to adhere to the statutory requirement to timely serve expert reports.
Id. at 329-30 (citing Hagedorn, 73 S.W.3d at 348). The court in Emeritus
concluded that if “a plaintiff wants an extension of time, it must either enter an
explicit written extension agreement with the defendant or assume the risk of
serving a deficient report and seeking an extension to cure the deficiency from the
trial court.” Id. at 330. Because the plaintiff did neither, the court held the “trial
- 27 -
court was required to dismiss [plaintiff’s] health care liability claims with
prejudice.” Id. (emphasis added).
In McWashington v. Harris County Hospital District, the Fourteenth Court
of Appeals rejected the plaintiff’s argument that the case should have been abated
for a 60-day period due to her failure to provide a proper medical authorization
form and that her deadline to serve an expert report was extended correspondingly.
208 S.W.3d at 69. Without deciding whether the plaintiff effectively abated the
case, the court held that “an abatement of the proceedings under Section 74.052(a)
does not toll or extend the 120-day period for filing an expert report[,]” id. (citing
Emeritus, 211 S.W.3d at 327), and echoed the concerns expressed by the Emeritus
and Hagedorn courts that to hold otherwise would reward the plaintiff with
additional time to comply with Chapter 74’s expert report deadline by his failure to
comply with the statutory notice requirement. Id. (citing Emeritus, 211 S.W.3d at
327; Hagedorn, 73 S.W.3d at 348).
Finally, in Gulf Coast Medical Center, LLC v. Temple, one of several
defendants filed a notice of abatement stating that “all further proceedings against
this defendant in this matter are hereby ABATED for a period of 60 days following
receipt of the required authorization by this Defendant.” No. 13-09-00350-CV,
2010 WL 196972, at *4 (Tex. App.—Corpus Christi-Edinburgh Jan. 21, 2010, no
pet.) (mem. op.). The trial court did not enter an order of abatement, nor did the
- 28 -
other defendants request, receive, or agree to any abatement in the case. Id. at *5.
The plaintiffs’ expert report deadline fell within the 60-day period following the
filing of the notice of abatement, and the defendants moved to dismiss, which the
trial court denied. Id. at *1.
The Thirteenth Court of Appeals reversed. Id. at *5. Assuming, without
deciding, that abatement occurred and the abatement applied to all parties to the
suit, the court “nevertheless conclude[d] that such an abatement does not serve to
toll or extend the 120-day expert report deadline.” Id. (citing Emeritus, 211
S.W.3d at 330; McWashington, 208 S.W.3d at 69; Hagedorn, 73 S.W.3d at 348-
49). In so holding, the court in Gulf Coast found persuasive the Hagedorn court’s
reasoning that “the legislature could not have intended to allow plaintiffs to benefit
by their failure to comply with the notice and authorization requirements.” Id.
(citing Hagedorn, 73 S.W.3d at 348).
The reasoning behind Hagedorn and its progeny is particularly applicable
here, where Ms. Reid not only wholly failed to comply with Section 74.051 and
74.052’s notice requirements, but claims that due to such failure, she can extend
the expert report deadline by unilaterally abating the case. Thus, if Ms. Reid’s
logic were employed, any time a plaintiff failed to comply with Chapter 74’s pre-
suit notice and medical authorization requirements, the plaintiff could unilaterally
engage a 60-day extension to serve expert reports upon service of the notice and
- 29 -
medical authorization form within 120 days of the filing of the defendant’s answer.
Unless statute of limitations were at issue,4 there would be no consequences for
failing to comply with Sections 74.051 and 74.052. By utilizing this self-serving
procedural mechanism, a plaintiff would avoid any repercussion in the event he or
she was unable to serve an expert report within 120 days of the filing of a
defendant’s answer. Such a distorted result could not be one intended by the
drafters of the notice and authorization requirements, nor one condoned by this
Court. See Carreras, 339 S.W.3d at 68 (“We . . . interpret statutes to avoid an
absurd result.” (citing City of Rockwall, 246 S.W.3d at 625-26)).
2. There is no written agreement to extend the expert report
deadline.
There is only one statutory exception to the 120-day expert report deadline.
Under Texas Civil Practice & Remedies Code Section 74.351, the date for serving
the expert report may be extended by written agreement of the affected parties.
TEX. CIV. PRAC. & REM. CODE § 74.351(a).
Ms. Reid can point to no written agreement by the parties to extend the
expert report deadline. Instead, she relies solely upon the purported stipulation
contained in her notice letter that the notice was “intended to abate the lawsuit for
4
As stated above, under Texas Civil Practice & Remedies Code Section 74.051(c), proper pre-
suit notice results in the tolling of the applicable statute of limitations for a period of 75 days
following the provision of notice.
- 30 -
sixty days after [Appellees’] receipt of this letter in accordance with the relevant
rules[,]” CR 76, as evidence that all proceedings in the lawsuit were abated and
that such abatement extended the expert report deadline. Notwithstanding the fact
that nowhere in the notice letter did Ms. Reid reference an extension of the expert
report deadline, the argument regarding the stipulation of an abatement
effectuating an extension of the deadline fails because the purported stipulation
was unilateral.
Pursuant to Rule 11 of the Texas Rules of Civil Procedure, “no agreement
between attorneys or parties touching on any suit pending will be enforced unless
it be in writing, signed and filed with the papers as part of the record, or unless it
be made in open court and entered of record.” TEX. R. CIV. P. 11 (emphasis
added). Here, because there was no agreement ever made between the attorneys
touching upon this lawsuit, logically the record fails to reflect the existence of a
Rule 11 agreement regarding an extension of the Chapter 74 expert report deadline
pursuant to Section 74.351(a) or the filing of such an agreement or stipulation with
the court by any party. Ms. Reid’s counsel’s unilateral statement that Ms. Reid’s
pleading defects were cured by the service of the notice letter and that the lawsuit
was abated for 60 days is of no legal consequence with respect to the 120-day
expert report deadline. See Emeritus, 211 S.W.3d at 329 (holding that a unilateral
understanding is not an agreement between the parties).
- 31 -
Even if the parties had executed a Rule 11 Agreement or had obtained an
agreed order from the trial court reflecting an agreement that the case would be
abated after Ms. Reid provided a notice letter and medical authorization, any such
agreement or order would not effectively extend the expert report deadline in the
absence of explicit language indicating the parties’ intention to extend the
deadline. See, e.g., Spectrum Healthcare Res. v. McDaniel, 306 S.W.3d 249, 254
& n.5 (Tex. 2010) (holding that for an agreed order or written agreement to extend
the section 74.351 threshold expert report deadline, the order “must explicitly
indicate the parties’ intention to extend the deadline and reference that specific
deadline” to be effective); Brock v. Sutker, 215 S.W.3d 927, 929 (Tex. App.—Dall.
2007, no pet.) (scheduling order that did not address expert report deadline did not
extend expert report deadline). What is more, Ms. Reid’s unilateral “stipulation”
regarding abatement made no reference to the expert report deadline at all, let
alone any statement regarding Ms. Reid’s counsel’s purported belief that the
belated provision of the notice letter and medical authorization extended the expert
report deadline. Thus, there is absolutely no showing by Ms. Reid that she was
entitled to any extension of the expert report deadline based on any agreement or
stipulation by the parties.
- 32 -
3. Lim v. West is inapposite to this case.
Ms. Reid relies on the First Court of Appeals’ decision in Lim v. West as the
only authority ostensibly in support of her contention that an abatement can serve
to extend Section 74.351’s expert report deadline. Open. Br. at 20 (citing Lim,
2008 WL 4970991). In an entirely false characterization, Ms. Reid contends that,
in Lim, the court stated “that the trial court’s decision to grant defendant’s motion
to dismiss based on Plaintiff’s failure to file an expert report during the period of
abatement was abuse [sic] of discretion.” Id. But in Lim, the trial court denied the
defendant’s motion to dismiss, and the First Court of Appeals considered whether
the denial of the motion to dismiss constituted an abuse of discretion. Lim, 2008
WL 4970991, at *1. Further, contrary to Ms. Reid’s contention, the court in Lim
never held that “if the time period falls within the period of abatement, no expert
report is due.” Open. Br. at 20.
In Lim, the plaintiff filed a health care liability claim against his physician,
but failed to provide a pre-suit medical authorization as required by Sections
74.051 and 75.052. Lim, 2008 WL 4970991, at *1 & n.1. The defendant
subsequently drafted an agreed order, which was signed by the parties and the trial
court, to abate the case “in accordance with Chapter 74 of the Texas Civil Practice
and Remedies Code.” Id. at *1. The expert report was due during the agreed
period of abatement. Id. at *1 n.1. The plaintiff failed to serve an expert report
- 33 -
within the statutory deadline, and the defendant moved to dismiss. Id. at *1. At
the hearing on the motion to dismiss, the defendant argued that the agreed
abatement applied only to abate further proceedings against him under Section
74.052(a), but did not serve as a written agreement of the parties to extend the time
to serve the expert report under Section 74.351(a). Id. The trial court denied the
defendant’s motion. Id.
On appeal, the First Court of Appeals considered the legal significance of
the agreed order abating the case “in accordance with Chapter 74 of the Texas
Civil Practice and Remedies Code.” Id. The court noted that, therefore, Lim
involved a different question than the question addressed by the courts in Emeritus,
McWashington, and Hagedorn, all of which held that an abatement based solely on
Section 74.052(a) did not affect the expert report deadline. Id. (citing Emeritus,
211 S.W.3d at 328-330; McWashington, 208 S.W.3d at 69; Hagedorn, 73 S.W.3d
at 347-49).
Instead, the court in Lim considered whether the broad language of the
agreed order entered by the trial court could “refer to the section 74.052(a)
abatement, the section 74.351(a) agreed extension of time, or both.” Id. at *2. In
other words, the court in Lim considered whether the basis of the agreed order
could have been a written agreement by the parties to extend the expert report
deadline under Section 74.351(a). Id. Because of the absence of a reporter’s
- 34 -
record or findings of fact, however, the court concluded that it could not dispense
with the presumption that the trial court found all facts necessary to support its
ruling, and was therefore unable to conclude that the trial court abused its
discretion in denying the motion to dismiss. Id. (citing BMC Software Belg., N.V.
v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002)).
Lim is therefore clearly inapplicable to this appeal for several reasons. First,
in contrast to the facts here and any suggestions by Ms. Reid to the contrary, Lim
considered whether the expert report deadline was extended where the deadline fell
during the period of abatement, id. at *1 n.1, not after the conclusion of any
abatement period. Second, the only statutory exception to the expert report
deadline—a written agreement of the parties to extend the deadline—was
potentially at issue in Lim in light of the vague language of the parties’ agreed
order. Id. at *1-2. Here, it is undisputed that the parties never agreed to extend the
deadline, whether written or otherwise, see RR 32 (MR. SARFO: “We have never
asserted in any way that there was any agreement.”), and that no order abating the
case was ever entered. Open. Br. At 15 (“The statute . . . does not require any act
on the part of the Plaintiff or Defendant to invoke the court’s involvement for this
abatement to apply.”).
Third, the court in Lim simply found it was unable to conclude that the trial
court abused its discretion in the absence of a sufficient record. Lim, 2008 WL
- 35 -
4970991, at *2. Particularly in light of the presumption that the trial court found
all facts necessary to support its ruling in the absence of a sufficient record, see id.,
the holding in Lim is far from a pronouncement that “if the time period falls within
the period of abatement, no expert report is due.” Open. Br. at 20.
Finally, Lim was issued in 2008, two years before the Texas Supreme Court
held in Spectrum Healthcare that an agreed order to extend an expert report
deadline “must explicitly indicate the parties’ intention to extend the deadline and
reference that specific deadline” and that, “[o]therwise, the agreed order is
ineffective to extend the section 74.351 deadline.” Spectrum Healthcare, 306
S.W.3d at 254. Thus, to the extent Lim stood for the proposition that an agreed
order abating a case “in accordance with Chapter 74 of the Texas Civil Practice
and Remedies Code” could constitute an agreed extension of time to serve the
expert report under Section 74.351(a), it has been implicitly overruled by the
holding in Spectrum Healthcare that an agreed order to extend the expert report
deadline “must explicitly indicate the parties’ intention to extend the deadline and
reference that specific deadline.” Spectrum Healthcare, 306 S.W.3d at 254
(emphasis added).
As the agreed order in Lim did not specifically reference Section 74.351 or
any intention by the parties to extend the expert report deadline, the order would
not have been effective to extend the expert report deadline under the current
- 36 -
Spectrum Healthcare standard and the trial court in Lim would have had no
discretion but to grant the defendant’s motion to dismiss. See Drewery, 344
S.W.3d at 507 (“Dismissal for failure to follow the mandates of section 74.351 is
not discretionary.”); Lal v. Harris Methodist Fort Worth, 230 S.W.3d 468, 476
(Tex. App.—Fort Worth 2007, no pet.) (“Appellant’s failure to serve the expert
report in a timely manner left the trial court with no discretion but to dismiss her
claims with prejudice.” (citing TEX. CIV. PRAC. & REM. CODE § 74.351(b)(2);
Etheredge v. McCarty, No. 05-05-00164-CV, 2006 WL 1738258, at *1 (Tex.
App.—Dall. June 27, 2006, no pet.) (mem. op.))). Accordingly, Ms. Reid’s
reliance on Lim is entirely misplaced.
4. A “prejudice” analysis is inappropriate.
Devoid of any authority in support of Ms. Reid’s argument that her belated
provision of notice and a medical authorization extended the expert report
deadline, Ms. Reid apparently invites this Court to engage in a “prejudice”
analysis, arguing that whether “one files the lawsuit before the notice and medical
authorization or soon thereafter is of no consequence because the waiting period
and the time for the filing of the expert report will still be the same 180 days.”
Open. Br. at 17. This argument, of course, ignores the fact that 180 days from the
filing of her lawsuit is February 6, 2016, almost two months before April 4, 2016,
the date Ms. Reid claims her expert report was due. Open. Br. at 12.
- 37 -
Regardless, Section 74.351 does not afford a plaintiff 180 days between the
filing of a health care liability claim and the filing of an expert report, and was
specifically amended to change the deadline from 180 days from the date the
lawsuit was filed to 120 days from the date the defendant filed its answer. See
Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex. 2011) (“Article 4590i required
that the expert report be ‘furnished’ to opposing counsel within 180 days of filing
suit, but Chapter 74 shortened the deadline to 120 days and now requires the
claimant to ‘serve’ (rather than ‘furnish’) the expert report ‘on each party or the
party’s attorney.’” (citing TEX. CIV. PRAC. & REM. CODE § 74.351(a); TEX. REV.
CIV. STAT. art. 4590i, § 13.01(d)(1) (repealed))).
More importantly, however, whether Dr. Breen or Seton were harmed or
prejudiced by Ms. Reid’s failure to serve an expert report by January 4, 2016 is not
the applicable standard, as the trial court “has no discretion but to dismiss” a
plaintiff’s claims with prejudice for failure to timely serve expert reports. Lal, 230
S.W.3d at 476 (citing TEX. CIV. PRAC. & REM. CODE § 74.351(b)(2); Etheredge,
2006 WL 1738258, at *1) (emphasis added); see also Drewery, 344 S.W.3d at 507.
The 120-day deadline is analogous to a statute of limitations in that it requires the
plaintiff to file a sufficient expert report and expert’s curriculum vitae within a
fixed deadline or face mandatory dismissal with prejudice of their claims. See,
e.g., Estate of Allen ex rel. Allen v. Scott & White Clinic, No. 03-08-00576-CV,
- 38 -
2011 WL 2993259, at *1 (Tex. App.—Austin July 22, 2011, no pet.) (mem. op.),
abrogated on other grounds by CHCA Woman’s Hosp., L.P. v. Lidji, 403 S.W.3d
228, 232 (Tex. 2013) (“By enacting [the expert report deadline], the legislature
created ‘a statute of limitations type deadline within which expert reports must be
served.” (quoting Ogletree v. Matthews, 262 S.W.3d 316, 319 (Tex. 2007)));
Gajewski v. Jackson, 351 S.W.3d 608, 612 (Tex. App.—El Paso 2011, no pet.)
(“[T]he 120-day deadline has become a ‘statute-of-limitations-type deadline,’
leaving trial courts with no discretion to recalculate a plaintiff’s 120-day deadline.”
(quoting Badiga v. Lopez, 274 S.W.3d 681, 683 (Tex. 2009))).
One of the purposes for the Legislature’s adoption of Section 74.351(a)’s
expert report requirement was “to remove unwarranted delay and expense, to
accelerate the disposition of non-meritorious cases, and to give hard-and fast
deadlines for the serving of expert reports.” Intracare Hosp. N. v. Campbell, 222
S.W.3d 790, 797 (Tex. App.—Hous. [1st Dist.] 2007, no pet.); see also Mokkala v.
Mead, 178 S.W.3d 66, 74-76 (Tex. App.—Hous. [14th Dist.] 2005, pet. denied),
abrogated on other grounds by Lidji, 403 S.W.3d at 232 (citing Section 74.351’s
legislative history to demonstrate that expert report requirement was intended to
serve Chapter 74’s dual purposes of reducing excessive frequency and severity of
health care liability claims and decreasing the cost of those claims). Therefore, any
construction of Section 74.351(a) that would allow a plaintiff to toll the 120-day
- 39 -
deadline for serving an expert report for a minimum of 60 days by belatedly
providing notice and a medical authorization form would eviscerate the deadline
and fatally undermine Chapter 74’s underlying purpose. See HCBeck, Ltd., 284
S.W.3d at 352.
In recodifying the prior version of the expert report requirement (set forth in
TEX. REV. CIV. STAT. art. 4590i) in Section 74.351(a), the Legislature pointedly
removed the provision previously authorizing courts to extend the deadline for
serving expert reports absent written agreement of the parties. Mokkala, 178
S.W.3d at 75-76. Ms. Reid, in essence, is requesting this Court to create an
exception to Section 74.351(a)’s absolute 120-day deadline for serving an expert
report where the plaintiff failed to comply with Chapter 74’s pre-suit notice and
medical authorization requirements but subsequently provided notice and an
authorization form after filing suit. This Court should decline that invitation and
apply Section 74.351(a) as it is written. See Vick v. Rangel, No. 04-05-00362-CV,
2005 WL 2438375, at *1 (Tex. App.—San Antonio Oct. 5, 2005, no pet.) (mem.
op.) (“[C]rafting an exception to the 120 day deadline is within the province of the
Legislature, not this court”).
Here, no report was timely served by Ms. Reid and there is no expert report
in the record containing any of the elements required under the statute. See
Scoresby v. Santillan, 346 S.W.3d 546, 557 (Tex. 2011). Therefore, because Ms.
- 40 -
Reid failed to meet the requirements of Texas Civil Practice & Remedies Code §
74.351(r)(6), the trial court had no discretion but to statutorily dismiss her claims
against Dr. Breen and Seton with prejudice. TEX. CIV. PRAC. & REM. CODE §
74.351(b); Ogletree, 262 S.W.3d at 319-20 (“If no report is served within the 120
day deadline provided by 74.351(a), the Legislature denied trial courts the
discretion to deny motions to dismiss or grant extensions . . . .” (citing TEX. CIV.
PRAC. & REM. CODE § 74.351(b))).
III. The Trial Court Did Not Err by Declining to Enter Findings of Fact and
Conclusions of Law
Ms. Reid argues that the trial court erred by refusing to file findings of fact
and conclusions of law “because in a medical malpractice case in which a Rule
[sic] 74 Motion to dismiss is granted, a request for Findings of Fact and
Conclusions of Law should be filed when requested.” Open. Br. at 22 (citing
Mocega v. Urquhart, 79 S.W.3d 61 (Tex. App.—Hous. [14th Dist.] 2002, pet.
denied). As a result of the trial court’s refusal to enter findings of fact and
conclusions of law, Ms. Reid contends she was harmed because she “has no
knowledge of the facts and grounds upon which her lawsuit was abridged.” Id.
Ms. Reid’s contentions are belied by well-established precedent and the record in
this case.
- 41 -
A. Findings of Fact and Conclusions of Law Are Not Required For
Dismissals Under Section 74.351
Texas courts have repeatedly held that a trial court is not required to enter
findings of fact and conclusions of law when dismissing a health care liability
claim for the plaintiff’s failure to comply with Chapter 74’s expert report
requirements. See, e.g., Davis, 171 S.W.3d at 413-14 (holding trial court did not
abuse its discretion in declining to file findings of fact and conclusions of law after
dismissal of case under predecessor to Section 74.351); Smalling v. Gardner, 203
S.W.3d 354, 371-72 (Tex. App.—Hous. [14th Dist.] 2005, pet. denied) (same);
Mocega, 79 S.W.3d at 64 (holding that trial court did not err in refusing to file
findings of fact and conclusions after dismissal of case under predecessor to
Section 74.351 and stating that “findings of fact and conclusions of law are
appropriate but not required.” (citing IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp.,
938 S.W.2d 440, 442-43 (Tex. 1997); Tomasi v. Liao, 63 S.W.3d 62, 64-65 (Tex.
App.—San Antonio 2001, no pet.))).
Beyond the context of health care liability claims, the Texas Supreme Court
has held that in cases other than those finally adjudicated after a conventional
bench trial on the merits, “findings and conclusions are proper, but a party is not
entitled to them.” IKB Indus., 938 S.W.2d at 442; see also Winters v. Chubb &
Son, Inc., 132 S.W.3d 568, 580 (Tex. App.—Hous. [14th Dist.] 2004, no pet.)
(“[F]indings of fact are not required in an abuse of discretion review.” (citing
- 42 -
Crouch v. Tenneco, Inc., 853 S.W.2d 643, 646 (Tex. App.—Waco 1993, writ
denied))). Even where a trial court may otherwise be required to make findings of
fact and conclusions of law, a trial court is not required to make findings of fact as
to undisputed facts. See Barker v. Eckman, 213 S.W.3d 306, 310 (Tex. 2006)
(“[F]act findings are not necessary when the matters in question are not disputed.”
(citing Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex. 1971))); SMI/USA, Inc. v.
Profile Techs., Inc., 38 S.W.3d 205, 209 (Tex. App.—Waco 2001, no pet.) (“[T]he
trial court is not required to make findings of fact as to undisputed facts.”
(citations omitted)).
Findings of fact and conclusions of law are not required after a Chapter
74.351 dismissal for two reasons. First, findings of fact and conclusions of law are
“often unnecessary;” therefore, “requiring them in every case would unduly burden
trial courts.” Smalling, 203 S.W.3d at 371-72 (citing IKB Indus., 938 S.W.2d at
442). Second, appellate courts are not required to give the trial court’s findings the
same level of deference as is required following a bench trial on the merits. See
IKB Indus., 938 S.W.2d at 442.
Ms. Reid cites Mocega for the proposition that findings of fact “are helpful
when the court dismisses a plaintiff’s suit for filing of [sic] late (or no) report[,]”5
Open. Br. at 23, but fails to mention that the court in Mocega—in the same
5
The court in Mocega used the word “appropriate,” not “helpful.” Mocega, 79 S.W.3d at 64.
- 43 -
sentence as its statement that findings of fact and conclusions of law are
appropriate for a dismissal under the predecessor to Section 74.351—held that
such findings of fact and conclusions of law are not required. Mocega, 79 S.W.3d
at 64. When viewed in context, Mocega stands for the simply unremarkable
position that the filing of findings of fact and conclusions of law may be
appropriate in certain circumstances, but that a trial court does not err by declining
to do so. See id.
Although Ms. Reid cites no other authority for the proposition that a trial
court errs by declining to file findings of fact and conclusions of law after ruling on
a motion to dismiss under Chapter 74, she cites Tenery v. Tenery for the
proposition that when a court declines to file findings of fact and conclusions of
law in response to a party’s request, “the failure is presumed harmful on appeal
unless the record affirmatively shows that the party suffered no injury.” 932
S.W.2d 29, 30 (Tex. 1996). Ms. Reid fails to mention, however, that Tenery
involved a trial court’s division of marital assets, subject to a Texas Family Code
provision requiring the entry of findings of fact in certain circumstances applicable
to that case, see id. (citing TEX. FAM. CODE § 154.130(a)(3); Chamberlain v.
Chamberlain, 788 S.W.2d 455, 455 (Tex. App.—Hous. 1990, writ denied)), and
does not fall within the category of cases—like this one—in which the Texas
- 44 -
Supreme Court has held do not require findings of fact and conclusions of law.
IKB Indus., 938 S.W.2d at 442.
Ms. Reid has cited no authority for the novel proposition that, even though
the trial court has no duty to file findings of fact and conclusions of law in this
circumstance, the trial court’s decision to decline to file such findings and
conclusions is presumed harmful unless the record affirmatively shows the party
suffered no injury. In fact, this proposition is contradicted by applicable case law.
See Sandles v. Howerton, 163 S.W.3d 829, 834 & n.5 (Tex. App.—Dall. 2005, no
pet.) (declining to presume harm from trial court’s failure to issue findings of fact
and conclusions of law where findings were not required for dismissal under
predecessor statute to Section 74.351).
Consistent with the holdings in IKB Industries, Davis, Smalling, and
Mocega, the trial court did not err in declining to file findings of fact and
conclusions of law, particularly in light of the fact that the key facts in this case are
not disputed. See Barker, 213 S.W.3d at 310.
B. Alternatively, the Record Thoroughly Indicates the Bases of the
Trial Court’s Decision
Alternatively, assuming the trial court was required to file findings of fact
and conclusions of law, the failure to do so “is not harmful error if the record
before the appellate court affirmatively shows that the complaining party suffered
no injury.” Cherne Indus., Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989).
- 45 -
Ms. Reid’s assertion that she was harmed because she “has no knowledge of the
facts and grounds upon which her lawsuit was abridged” is controverted by the
record as well as Ms. Reid’s own Brief. The record contains a 111-page Clerk’s
Record, CR 1-111, and a 56-page Reporter’s Record. RR 1-56. The parties
extensively briefed the issues before the trial court, CR 29-78, 82-85, and the trial
court unequivocally indicated her understanding that the question for consideration
was whether Ms. Reid’s notice and medical authorization served to extend the
expert report deadline:
THE COURT: . . . But I’m going to read the cases to see if, by any
stretch of the imagination, your -- what you communicated to counsel
without any filing or without any written agreement between the
parties pertaining to an abatement, if somehow I can still determine
that, one, that there was a stay in place, and two, if there was
somehow a stay in place based upon what you provided or what they
included in their answer to you, that that stay allowed you to not file
your expert report.
RR 51.
Moreover, Ms. Reid’s Opening Brief demonstrates her awareness of the
legal questions on which the trial court based its decision, Open Br. at 13-21, and
even summarizes two possible implicit legal conclusions that the trial court made
by granting the Motion to Dismiss. Id. at 23 (“[T]he Court erred by implicitly
finding that plaintiff’s suit was not in abatement, or that a lawsuit in abatement still
requires the filing of an expert report because there is no evidence or, in the
alternative, insufficient evidence to support that finding.”). It being undisputed
- 46 -
that Section 74.351 requires the service of an expert report within 120 days of the
filing of a defendant’s answer absent an exception, Ms. Reid’s brief addresses
whether the belated provision of notice and authorization effectively abated the
suit, and if so, whether such abatement served to extend the expert report deadline.
Id.
That the trial court did not make explicit findings regarding both questions is
of no moment, as Ms. Reid addressed the issues relevant to either possibility in her
Brief. In re J.I.T.P., 99 S.W.3d 841, 849 (Tex. App.—Hous. [14th Dist.] 2003, no
pet.) (holding appellant was not harmed by trial court’s decision not to file findings
and conclusions where there was a complete reporter’s record and appellant was
able to brief, and the appellate court was able to fully review, whether the
judgment was supported by legally and factually sufficient evidence under
standard applicable to involuntary termination proceedings). Tellingly, Ms. Reid
has failed to identify any issue that she has not been able to brief because of the
trial court’s decision to decline to file findings of fact and conclusions of law. Cf.
Watts v. Oliver, 396 S.W.3d 124, 131 (Tex. App.—Hous. [14th Dist.] 2013, no
pet.) (holding appellant was not forced to guess the grounds of the trial court’s
decision where he addressed issues related to alternate possible grounds of trial
court’s decision and where he was unable to identify any issue that he was unable
to brief due to the trial court’s decision not to file findings and conclusions).
- 47 -
C. The Proper Remedy for Error, if Any, is to Abate the Appeal to
Allow the Entry of the Missing Findings
Even if this Court were to conclude that Ms. Reid was not only entitled to
findings of fact and conclusions of law entered by the trial court, but that the trial
court’s decision not to file such findings and conclusions caused injury, the proper
remedy is not to reverse the trial court’s judgment, but to abate the appeal and
remand the case to the trial court to make findings of fact and conclusions of law.
See TEX. R. APP. P. 44.4; Busch v. Hudson & Keyse, LLC, 312 S.W.3d 294, 298
(Tex. App.—Hous. [14th Dist.] 2010, no pet.) (“If proper presentation of a case on
appeal is prevented by a trial court’s failure to make requested findings of fact and
conclusions of law, the proper remedy is to abate the appeal and direct the trial
court to make findings and conclusions pursuant to [TEX. R. APP. P. 44.4(b)].”
(citations omitted)). Accordingly, any error on the part of the trial court or harm
caused by the trial court’s decision to not file findings or conclusions requires
abatement of the appeal and a remand to the trial court to make findings of fact and
conclusions of law.
- 48 -
CONCLUSION
For the reasons stated above, Dr. Breen and Seton respectfully request that
this Court affirm the trial court’s order granting Dr. Breen’s and Seton’s Motion to
Dismiss with prejudice. Appellees further request all other relief to which they are
entitled.
Respectfully submitted,
NORTON ROSE FULBRIGHT US LLP
By: /s/ Yvonne K. Puig
Yvonne K. Puig
State Bar No. 16385400
yvonne.puig@nortonrosefulbright.com
Daphne Andritsos Calderon
State Bar No. 00796788
daphne.calderon@nortonrosefulbright.com
Eric J. Hoffman
State Bar No. 24074427
eric.hoffman@nortonrosefulbright.com
98 San Jacinto Boulevard, Suite 1100
Austin, Texas 78701-4255
Telephone: (512) 474-5201
Facsimile: (512) 536-4598
Counsel for Appellees Seton Family of
Hospitals and Michael Breen, M.D.
- 49 -
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned
counsel – in reliance upon the word count of the computer program used to prepare
this document – certifies that this brief contains 10,500 words, excluding the words
that need not be counted under Texas Rule of Appellate Procedure 9.4(i)(1).
/s/ Daphne Andritsos Calderon
Daphne Andritsos Calderon
- 50 -
CERTIFICATE OF SERVICE
The undersigned counsel hereby certifies that a copy of Appellees’ Response
Brief on the Merits was served by electronic filing and electronic mail in
compliance with Texas Rule of Appellate Procedure 9.5 on September 15, 2016,
upon:
Mr. Samuel Adjei Sarfo
1703B Burton Drive
Austin, Texas 78741
lawyersarfo@yahoo.com
(Counsel for Appellant)
Mr.Tim Flocos
Brustkern, Flocos & Associates
611 West 14th Street, Suite 200
Austin, Texas 78701
tim@timflocos.com
(Counsel for Appellee Ann Czarnik, M.D.)
/s/ Daphne Andritsos Calderon
Daphne Andritsos Calderon
- 51 -
INDEX TO APPENDIX
1. Trial Court’s Order on Dr. Breen’s and Seton’s Motion to Dismiss
2. Notice and Medical Authorization Form provided by Ms. Reid to Seton
3. Notice and Medical Authorization Form provided by Ms. Reid to Dr. Breen
4. Texas Civil Practice & Remedies Code § 74.351
5. Texas Civil Practice & Remedies Code § 74.051
6. Texas Civil Practice & Remedies Code § 74.052
Appendix Tab 1
Filed in The District Court
of Travis County, Texas
FEB -4 2016
NO. D-l-GN-15-003300
At '-h'5S M.
Velva L. Price, District lerk
5
MARGARET REID, § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. §
§ TRAVIS COUNTY, TEXAS
SETON'S HOSPITALS, ET AL. §
§
§
Defendants. § 53rd JUDICIAL DISTRICT
ORDER GRANTING DEFENDANTS SETON FAMILY OF HOSPITALS AND MICHAEL
BREEN, M.D.'S CHAPTER 74 MOTION TO DISMISS WITH PREJUDICE
ON THIS DAY the Court considered Defendants Seton Family of Hospitals and Michael
Breen, M.D.'s Chapter 74 Motion to Dismiss with prejudice, the Plaintiff's response thereto,
including Motion for Sanctions, arguments of counsel and the case file as a whole. The Court is of
the opinion that the Motion to Dismiss is meritorious and should be granted. Accordingly,
IT IS HEREBY ORDERED that because no expert report was timely served by Plaintiff as
against Defendants Seton Family of Hospitals or Michael Breen, M.D., Defendants Chapter 74
Motion to Dismiss with prejudice is GRANTED;
IT IS FURTHER ORDERED that because Defendants' Chapter 74 Motion to Dismiss was
filed in good faith and is not groundless, Plaintiff's Motion for Sanctions pursuant to Rule 13 of the
Texas Rules of Civil Procedure and Chapter 10 of the Texas Civil Practice and Remedies Code is
DENIED;
IT IS FURTHER ORDERED, ADJUDGED and DECREED that the above-styled and
numbered cause be, and the same is, hereby DISMISSED with prejudice, as to Defendants SETON
FAMILY OF HOSPITALS and MICHAEL BREEN, M.D., only, to the rights of the Plaintiff, with
each party to bear their own costs.
-I -
111111111111 11111 111111111111111 11111111111111111111111
004423142
SO ORDERED this the !j_tf;.yofFebruary, 20 16.
APPROVED AS TO FORM ONLY:
Samuel Adjei Sarfo
The Sarfo Law Firm
Attorney for Plaintiff
``
~....
Norton Rose Fulbright US LLP
Attorneys for Defendants Seton Family ofHospitals
A nd Michael Breen, M.D.
-2-
Appendix Tab 2
THE SARFO LAW FIRM
7901CAMERON ROAD, SUITE 2-242, AUSTIN, TEXAS 78754
SAMUEL ADJEI SARFO FAX: 512-523-5911 TELEPHONE: 512-297-0227
AlTORNEY AT LAW OFFICE: 512-537-7121 lawyersarfo@yahoo.com
The Chief Executive Officer
Seton Hospital
17900 FM 1826
Austin, Texas 78737-1407
October 01, 2015
Dear Sir/Madam .
NOTICE OF INTENT TO PROCEED WITH SUIT
INTRODUCTION
As per Sec. 74.051 of the Texas Practice and Remedies Code, I Samuel Adjei Sarto, Esq. write on behalf of
my client Margaret Reid to notify you of an intent to proceed with a medical malpractice suit already
filed with the Travis County District court.
Accompanying this notice is also a medical authorization form executed by the claimant in the form
required by Section 74.052 of the Code.
FACTS
Around July of 2014, petitioner, Mrs. Margaret Reid who had been experiencing some discomfort
around her pelvic area for the prior six months, was advised by her Pre-Medicare Physician (PCP), Dr.
Terri Bagwell, to have an ultra sound exam. After the exam, petitioner was found to have cyst in her
ovaries, and two small fibroids in her uterus, in addition to symptoms akin to that of endometriosis. As a
result, Dr. Terri Bagwell referred her to a specialist surgeon called Dr. Michael Breen. Dr. Breen gave
petitioner appointment for evaluation on January 26, 2015.
But on January 12, 2015, petitioner experienced a severe abdominal pain aroun·d her pelvic area and
called 911 which took her to the St. David's Hospital. At the hospital, they did the test and discovered
that petitioner had a raptured cyst. She was therefore advised to see an OBGYN as soon as possible.
Petitioner therefore called Dr. Michael Breen and impressed on him to see her earlier before January 26.
Petitioner was able to see Dr. Breen on January 14, 2015 .
1
After examining petitioner on this date, Dr. Breen scheduled a surgery for total hysterectomy for
petitioner on February 17, 2015. Consequently, Dr. Breen performed the said surgery on that date which
involved the removal of petitioner's uterus, cervix, ovaries and other surrounding reproductive organs.
Dr. Breen stated to petitioner before the surgery on that day that if he found petitioner with too much
scar tissue due to petitioner's previous surgeries, he was going to open petitioner up, but somehow, he
later decided to maneuver the previous scar area without opening up petitioner. He therefore went
ahead to perform the surgery, which involved a maneuver of the previous scar areas without actually
opening up petitioner's stomach. Petitioner stayed overnight at the hospital and was discharged the
following day on February 18, 2015.
When petitioner arrived home that day, she began experiencing a lot of pain and bleeding, which she
considered normal as per the doctor's post-surgery advice. But ten days after the surgery (i.e. on
February 27, 2015}, both the pain and the bleeding were elevated. Petitioner, who happens to be a
nurse, also found out that the blood was issuing from the bladder, and not from the vagina, as the
doctor advised.
Petitioner therefore tried to contact Dr. Breen to report her situation, but because it was after hours at
5.30. p.m., the doctor was not available; but the on-call doctor advised her to go to the emergency room
at Seton Hospital as soon as possible. By the time she arrived at the emergency room, petitioner was
also experiencing chest pain in addition to the bleeding and general pain . The nurse immediately took a
specimen of her urine, which presented as virtual blood.
After some time, Dr. Ann Czarnik arrived and observed petitioner, who described her condition to the
doctor and informed her of her recent surgery. The doctor then asked petitioner if she was sure the
blood was issuing from the bladder, to which petitioner answered in the affirmative. The doctor then
performed a pelvic exam after which she disclosed to petitioner that there was a collection of blood in
the vagina, and therefore the blood was probably coming from the vagina, and not the bladder.
She also informed petitioner that she was going to order an x-ray of the chest to determine whether
petitioner had pneumonia. After the chest x-ray was performed, the result came normal. Thereafter,
the doctor ordered CT scan on petitioner's chest to determine whether there was any blood clot around
petitioner's heart area. That scan also came out normal. After the chest x-ray and CT scan, there was no
further test done on petitioner to determine where the blood was actually coming from. Instead, the
doctor firmly informed petitioner that she was suffering from urinary tract infection (UTI}.
At this time, petitioner had already been at the emergency room for three and half hours, during which
t ime she had been given intravenous infusion and morphine because she was suffering from a lot of
pain and discomfort. Around 9.00 p.m., Dr. Czarnik returned and asked petitioner whether she urinated
blood again, to which petitioner responded in the affirmative that she had urinated blood three times
but had flushed it off. At this point, Dr. Anne Czarnik told petitioner that she was waiting to seek advice
from another doctor and left petitioner's side. But around 11.00 p.m., petitioner began to experience
more extreme pain and went to the bathroom where she urinated excessive amounts of blood,
whereupon she called the nurse assigned to her to come and see. The nurse, after seeing the blood,
exclaimed, "Oh my God!" and rushed to call the doctor.
2
At this point in time, the doctor, without further ado, arrived with discharge forms to discharge
petitioner. Petitioner prompted the doctor to go to the bathroom to observe the blood petitioner had
urinated, but the doctor declined, stating that she did not have to see the bloody urine because the
nurse already told her, but she was now certain petitioner was suffering from UTI. She further stated
that she was going to start petitioner on some antibiotics (i.e. Cipro, 500 milligrams) and advised her to
follow up with the doctor that performed her surgery two weeks previously. She also asked petitioner to
see an urologist, based on her conclusion that petitioner had UTI.
Without further checks on petitioner despite petitioner's protestations, petitioner was duly discharged
on February 28, 2015 on the orders of Dr. Ann Czarnik. When petitioner arrived home, she was in
extreme pain but tried hard to sleep. However at 4.00 a.m., petitioner felt that her bladder was full and
distended and went to the bathroom to try to urinate; but she could not. She also felt something
hanging out from her vagina, and when she checked further, she discovered that it was blood clot
traceable from the bladder. Petitioner construed this to mean that the blood was issuing from the
bladder. Petitioner took a picture of this hanging blood clot.
She then called the hospital and asked to speak with Dr. Ann Czarnik, and when the operator asked for
her reason, petitioner explained her condition to her, whereupon the operator advised her to come to
the emergency room as soon as possible. Petitioner then headed straight with her husband to the
emergency room on March 01, 2015. On her way to the hospital, petitioner felt weaker and weaker and
was in a lot of pain and sweating all over. At the emergency room, she could hardly speak because of her
condition. She was then placed in the care of another doctor called Dr. Dille who explained that she was
taking over from Dr. Ann Czarnik. She then ordered for Foley Catheter to be inserted on petitioner to
drain the urine which was now almost black. The quantity of the urine was 550 cc.
Dr. Dille then scanned petitioner's bladder and observed that there was some blood clot blocking the
passage of the blood. She then immediately ordered a CT scan of the bladder. But before petitioner was
transported to do the CT scan, Dr. Dille called another doctor who came and interviewed petitioner.
After she listened to petitioner's full account of events as happened, she stated that Dr. Ann Czarnik
must have caused petitioner extreme trauma. While talking to petitioner, another doctor also came over
to listen to petitioner's account. The two doctors now invited another male doctor, and after conferring
among themselves for some time, thereafter told petitioner that they were going to first perform a
pelvic exam to find out whether the first doctor that performed the surgery might have poked the
bladder while sewing petitioner up after the surgery.
They finally performed this pelvic exam and made a visual conclusion that the stitches were all intact
and everything was healing well. But they repeated to petitioner their decision to do the CT scan. They
then transported petitioner to the CT scan room where for some unknown reason, petitioner spent a
whole forty-five minutes for a process that normally takes not more than twenty minutes. After they
took petitioner back to the emergency room, the doctors disclosed to her that there was a hole in her
bladder as a result of the surgery performed by Dr. Michael Breen.
Thereafter, plaintiff was informed that they were going to keep the Catheter for two weeks, and that
she was going to be discharged immediately. But a good friend of the plaintiff who was also a nurse
made a loud protest against the decision to discharge plaintiff because she observed that petitioner's
urine was still dark. Thereafter the doctors immediately reversed their decision and secured a room for
plaintiff who stayed on admission for a further three days.
3
For the entire time after the surgery spanning plaintiffs traumatic distress, he never set eyes on Dr.
Michael Breen, t he doctor that originally performed the total hysterectomy. However after her
discharge was delayed, Dr. Michael Breen who was on call on that particular day (i.e. March 01, 2015)
came and saw plaintiff, whereupon plaintiff reiterat ed that she was not leaving the hospital until she felt
reasonably well. Dr. Breen concurred and informed plaintiff that she was being recommended to see a
very good urologist called Dr. Singh Herb. The Doctor came to see plaintiff who explained to Dr. Herb
her situation. Dr. Singh also wondered aloud how the ER doctor prematurely discharged plaintiff without
finding out where the blood was coming from.
The following day, (i.e. on March 03, 2015), plaintiff was taken to the operation room and had general
anesthesia done again. The doctor did not consider the five millimeter hole to be big enough for stitches
and therefore left the catheter intact. Finally, plaintiff was discharged on March 03, 2015 and was given
a lot of pain medication. When plaintiff went home, he started bleeding again after only three days. She
called Dr. Singh who advised her to come to her clinic. She examined plaintiff the following day and
advised her that her insurance did not cover for the visit but she was going to examine plaintiff for free
on that particular day because he felt very sad about what happened. He then referred her t o another
urologist called Dr. Lorene Jones who was within her HMO network.
Before seeing Dr. Jones, plaintiff was invited by Dr. Michael Breen for a follow-up. He advised plaintiff
that she needed a cystogram (a type of CT scan) to ensure that the hole was no more leaking. The
procedure was so painful that plaintiff nearly stopped them. The results of that cystogram was
thereafter faxed to Dr. Jones who inspected it and concluded that the hole in plaintiff's bladder had not
healed and was still leaking, and that plaintiff therefore needed to keep the catheter on for another two
weeks.
After two weeks, plaintiff had to endure another CT scan after which Dr. Lorene Jones discontinued the
catheter on March 31, 2015.
CAUSES OF ACTION
Plaintiff has brought a cause of action in negligence against Dr. Michael Breen. Dr. Michael Breen owed
the duty of providing standard medical care to Ms. Margaret Reid during her hysterectomy surgery
which involved the removal of petitioner's uterus, cervix, ovaries and other surrounding reproductive
organs. Upon discovery of petitioner's manifold scar tissue due to prior surgery, this standard would
have required the defendant to open petitioner up, as he himself stated to the understanding of
petitioner prior to the operation. Dr. Michael Breen breached this standard when he maneuvered
around the scar tissue, putting undue stress on petitioner's bladder region and leading to the physical
injury of a tear in her bladder and thereby proximately causing her the damage and distress and pain
and suffering.
This failure amounts to a breach of the applicable standard of medical care.
As a direct and proximate result of the breach of the applicable standard of medical care by the
Defendant, the Plaint iff: i. suffered conscious pain and suffering both in the past and, it is expected by
4
her physicians, the future, ii. incurred medical expenses in the past and will incur future medical
expenses, iii. suffered mental and emotional sorrow and anguish, iv. was required to undergo additional
medical procedures and has sustained other damages.
That the initial bladder damage sustained by the Plaintiff was the direct and proximate result of the
negligent actions and breaches of the applicable standards of medical care by the Defendant without
any act or omission on the part of the Plaintiff directly thereunto contributing.
That the Plaintiff did not assume the risk of her injuries.
Plaintiff alleges that on or about February 17, 2015 and thereafter, Defendant Michael Breen breached
the applicable standard of medical care owed to the Plaintiff Margaret Reid, which directly caused a
physical injury to the Plaintiff and was the direct and proximate cause of the Plaintiff's injuries and
damages.
WHEREFORE: The Plaintiff claims monetary damages against Michael Breen individually in an amount to
be determined at trial, plus costs, and for any further relief that this Honorable Court determines
necessary and appropriate.
Furthermore, Ms. Margaret Reid intends to proceed against Dr. Ann Czarnik in negligence.
Dr. Ann Czarnik had a duty to provide a reasonable standard of medical care to petitioner as per their
doctor-patient relationship. But defendant deviated from this standard of medical care during the care
and treatment of the Plaintiff on or about February 28, 2015, when during care of plaintiff, she did not
exercise acceptable standard of care in determining plaintiff's source of ailment, viz. where blood was
issuing from and insisted that petitioner was suffering from urinary tract infection, despite that
petitioner sufficiently described her condition to defendant.
Dr. Ann Czarnik deviated from the reasonable standard of medical care by her refusal to inspect the
urine of petitioner despite having information that petitioner's urine was dark, and also by her
premature discharge of petitioner. This deviation was the direct and proximate cause of a physical injury
to the plaintiff and the direct and proximate cause of all of the plaintiffs consequent pain and suffering.
WHEREFORE: plaintiff claims money damages against Dr. Ann Czarnik in an amount to be determined at
trial, plus costs, and for any further relief that the Court determines necessary and appropriate.
Again, as to Dr. Ann Czarnik, plaintiff will proceed with a cause of action in intentional infliction of
emotional distress (liED).
Plaintiff re-a lieges and incorporates by reference herein all of the allegations contained in
paragraphs 34 to 37 against second defendant Dr. Ann Czarnik and in addition, asserts a cause of action
in Intentional Infliction of Emotional Distress ("liED") against same.
The elements for a cause of action for liED are as follows:
i. The plaintiff is a person. ii. The defendant acted intentionally or recklessly. iii. The emotional distress
suffered by the plaintiff was severe. 4. The defendant's conduct was extreme and outrageous. iv. The
5
defendant's conduct proximately caused the plaintiff's emotional distress. v. No alternative cause of
action will provide a remedy for the severe emotional distress caused by the defendant's conduct.
Kroger Tex. L.P. v. Suberu, 216 S.W.3d 788,796 (Tex.2006); Hoffman-La Roche, Inc., v. Zeltwanger, 144,
S.W.3d 438,447 (Tex.2004); Tiller v. Mclure, 121 S.W.3d 709, 713 (Tex.2003).
Petitioner is a person who had a patient-doctor relationship with second defendant on whom she
thereby entrusted her health. But defendant's action, from the onset was patently reckless, if not totally
intentional. She initiated a battery of tests on petitioner and came up with her own misdiagnosis despite
petitioner's protestations. She ignored the dignity and feelings of petitioner and the suggestion of
nurses when she was called to come and see patient's urine, but instead, came with discharge papers
and totally ignored petitioner's painful protestations.
Given the nature of defendant's conduct, it meets the threshold for being extreme and outrageous
because of the level of sheer disregard for professional care and decorum for the petitioner, and her
insistence in the face of plaintiff's denial that plaintiff was suffering from UTI. Defendant's action is the
direct and proximate cause of plaintiff's distress.
Defendant is therefore liable to plaintiff for her emotional distress.
Given the severity of plaintiff's distress, no alternative cause of action would provide a remedy for the
severe emotional distress caused by the defendant's conduct.
WHEREFORE: The Plaintiff claims monetary damages against Defendant Anne Czarnik in an amount to
be determined at trial, plus costs, and for any further relief that this Honorable Court deems necessary
and appropriate.
As to Seton Hospital, plaintiff will proceed in medical malpractice based on the theory of Respondeate
Superior and/or Agency
This is because during all of the times that the plaintiff was receiving medical care and treatment from
defendants Michael Breen M.D. and Ann Czarnik, MD, these defendants were employed by Seton
Hospital, and that they were agents of their employer acting within the scope of their employment.
Thus Defendant Seton Hospital is responsible, via the theories of agency and respondeate superior for
the breach of applicable medical care caused by their employees, the defendants herein, which resulted
in a physical injury to the Plaintiff.
WHEREFORE: The Plaintiff claims monetary damages against Defendant Seton Hospital in an amount to
be determined at trial, plus costs, and for any further relief that this Honorable Court deems necessary
and appropriate.
6
STIPULATION
We hereby stipulate, in response to the exception raised in your original answer to plaintiffs suit, that
the plaintiff's lawsuit has been filed without prior notice to you and without furnishing you with a
medical authorization form as required in 74.052 ofthe code.
This notice is therefore intended to cure that pleading defect. It is also intended to abate the lawsuit for
sixty days after your receipt of this letter in accordance with the relevant rules.
It also tolls the applicable statute of limitations to and including a period of 75 days following the giving
of the notice. This tolling shall apply to all parties and potential parties.
Please also note that 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; provided, however, that the receipt of a medical authorization in the form
required by Section 74.052 executed by the claimant herein shall be considered compliance by the
claimant with this subsection.
CONCLUSION
You may contact my office for any questions, concerns or proposals for possible settlement.
Thank you.
Respectfully submitted,~ • f\
1
..........``:~ .......
Samuel Adjei Sarto
Texas Bar No.: 24071896
ATTORNEY FOR MARGARET REID
7
AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION
A. I, Margaret Reid, hereby authorize Setons Hospital to obtain and disclose (within the
parameters set out below) the protected health information described below for the following
specific purposes:
1. To facilitate the investigation and evaluation of the health care claim described in the
accompanying Notice of Health Care Claim; or
2. Defense of any litigation arising out of the claim made the basis of the accompanying Notice
of Health Care Claim.
B. The health information to be obtained, used, or disclosed extends to and includes the verbal as
well as the written and is specifically described as follows:
I. The health information in the custody of the following physicians or health care providers who
have examined, evaluated, or treated Margaret Reid in connection with the injuries alleged to
have been sustained in connection with the claim asserted in the accompanying Notice of Health
Care Claim. (Here list the name and current address of all treating physicians or health care
providers):
I. Dr. Ann Czarnik
I7900 FM 1896
Austin, Texas 78737-1407
2. Dr. Michael Breen
17900 FM 1896
Austin, Texas 78737-1407
This authorization shall extend to any additional physicians or health care providers that may in
the future evaluate, examine, or treat Margaret Reid (patient) for injuries alleged in connection
with the claim made the basis of the attached Notice of Health Care Claim;
2. The health information in the custody of the following physicians or health care providers who
have examined, evaluated, or treated Margaret Reid (patient) during a period commencing five
years prior to the incident made the basis of the accompanying Notice of Health Care Claim.
(Here list the name and current address of such physicians or health care providers, if
applicable.)
Dr. Terri Bagwell
1710 Red River Street, Ste. 2104
Austin, Texas 78701
1
C. Excluded Health Information--the following constitutes a list of physicians or health care
providers possessing health care information concerning Margaret Reid to which this
authorization does not apply because I contend that such health care information is not relevant
to the damages being claimed or to the physical, mental, or emotional condition of Margaret
Reid arising out of the claim made the basis of the accompanying Notice of Health Care Claim.
(Here state "none" or list the name of each physician or health care provider to whom this
authorization does not extend and the inclusive dates of examination, evaluation, or treatment to
be withheld from disclosure.)
NONE
D. The persons or class of persons to whom the health information of Margaret Reid will be
disclosed or who will make use of said information are:
1. Any and all physicians or health care providers providing care or treatment to Margaret Reid;
2. Any liability insurance entity providing liability insurance coverage or defense to any
physician or health care provider to whom Notice of Health Care Claim has been given with
regard to the care and treatment of Margaret Reid;
3. Any consulting or testifying experts employed by or on behalf of Seton Hospital.
4. Any attorneys (including secretarial, clerical, or paralegal staff) employed by or on behalf of
Seton Hospital with regard to the matter set out in the Notice of Health Care Claim
accompanying this authorization;
5. Any trier of the law or facts relating to any suit filed seeking damages arising out of the
medical care or treatment of Margaret Reid.
E. This authorization shall expire upon resolution of the claim asserted or at the conclusion of
any litigation instituted in connection with the subject matter of the Notice of Health Care Claim
accompanying this authorization, whichever occurs sooner.
F. I understand that, without exception, I have the right to revoke this authorization in writing. I
further understand the consequence of any such revocation as set out in Section 74.052, Civil
Practice and Remedies Code.
G. I understand that the signing of this authorization is not a condition for continued treatment,
payment, enrollment, or eligibility for health plan benefits.
H. I understand that information used or disclosed pursuant to this authorization may be subject
to redisclosure by the recipient and may no longer be protected by federal HIP AA privacy
regulations.
````~-:::_f'~tl::~-~--------- - - - - -
MARGARET REID
[o1.cll,\ 2
Appendix Tab 3
THE SARFO LAW FIRM
7901CAMERON ROAD, SUITE 2-242, AUSTIN, TEXAS 78754
SAMUEL ADJEI SARFO FAX: 512-523-5911 TELEPHONE: 512-297-0227
ATTORNEY AT LAW OFFICE: 512-537-7121 lawyersarfo@yahoo.com
Dr. Michael Breen
Seton Hospital
17900 FM 1826, Austin
Texas 78737-1407
October 01, 2015
Dear Sir,
NOTICE OF INTENT TO PROCEED WITH SUIT
INTRODUCTION
As per Sec. 74.051 of the Texas Practice and Remedies Code, I Samuel Adjei Sarfo, Esq . write on behalf of
my client Margaret Reid to notify you of an intent to proceed with a medical malpractice suit already
filed with the Travis County District court.
Accompanying this notice is also a medical authorization form executed by the claimant in the form
required by Section 74.052 of the Code.
FACTS
Around July of 2014, petitioner, Mrs. Margaret Reid who had been experiencing some discomfort
aro und her pelvic area for the prior six months, was advised by her Pre-Medicare Physician (PCP), Dr.
Terri Bagwell, to have an ultra sound exam. After the exam, petitioner was found to have cyst in her
ovaries, and two small fibroids in her uterus, in addition to symptoms akin to that of endometriosis. As a
result, Dr. Terri Bagwell referred her to a specialist surgeon called Dr. Michael Breen. Dr. Breen gave
petitioner appointment for eva luation on January 26, 2015.
But on January 12, 2015, petitioner experienced a severe abdominal pain around her pelvic area and
called 911 which took her to the St. David's Hospital. At the hospita l, they did the test and discovered
that petitioner had a raptured cyst. She was therefore advised to see an OBGYN as soon as possible.
Petitioner therefore called Dr. Michael Breen and impressed on him to see her earlier before January 26.
Petitioner was able to see Dr. Breen on January 14, 2015.
1
After examining petitioner on this date, Dr. Breen scheduled a surgery for total hysterectomy for
petitioner on February 17, 2015. Consequently, Dr. Breen performed the said surgery on that date which
involved the removal of petitioner's uterus, cervix, ovaries and other surrounding reproductive organs.
Dr. Breen stated to petitioner before the surgery on that day that if he found petitioner with too much
scar tissue due to petitioner's previous surgeries, he was going to open petitioner up, but somehow, he
later decided to maneuver the previous scar area without opening up petitioner. He therefore went
ahead to perform the surgery, which involved a maneuver of the previous scar areas without actually
opening up petitioner's stomach. Petitioner stayed overnight at the hospital and was discharged the
following day on February 18, 2015 .
When petitioner arrived home that day, she began experiencing a lot of pain and bleeding, which she
considered normal as per the doctor's post-surgery advice. But ten days after the surgery (i.e. on
February 27, 2015), both the pain and the bleeding were elevated. Petitioner, who happens to be a
nurse, also found out that the blood was issuing from the bladder, and not from the vagina, as the
doctor advised.
Petitioner therefore tried to contact Dr. Breen to report her situation, but because it was afte r hours at
5.30. p.m., the doctor was not available; but the on-call doctor advised her to go to the emergency room
at Seton Hospital as soon as possible. By the time she arrived at the emergency room, petitioner was
also experiencing chest pain in addition to the bleeding and general pain. The nurse immediately took a
specimen of her urine, which presented as virtual blood.
After some time, Dr. Ann Czarnik arrived and observed petitioner, who described her condition to the
doctor and informed her of her recent surgery. The doctor then asked petitioner if she was sure the
blood was issuing from the bladder, to which petitioner answered in the affirmative. The doctor then
performed a pelvic exam after which she disclosed to petitioner that there was a co llection of blood in
the vagina, and therefore the blood was probably coming from the vagina, and not the bladder.
She also informed petitioner that she was going to order an x-ray of the chest to determine whether
petitioner had pneumonia. After the chest x-ray was performed, the result came normal. Thereafter,
the doctor ordered CT scan on petitioner's chest to determine whether there was any blood clot around
petitioner's heart area. That sca n also came out normal. After the chest x-ray and CT scan, there was no
further test done on petitioner to determine where the blood was actually coming from. Instead, the
doctor firmly informed petitioner that she was suffering from urinary tract infection (UTI).
At this time, petitioner had already been at the emergency room for three and half hours, during which
time she had been given intravenous infusion and morphine because she was suffering from a lot of
pain and discomfort. Around 9.00 p. m., Dr. Czarnik returned and asked petitioner whether she urinated
blood again, to which petitioner responded in the affirmative that she had urinated blood three times
but had flushed it off. At this point, Dr. Anne Czarnik told petitioner that she was waiting to seek advice
from another doctor and left petitioner's side. But around 11.00 p.m., petitioner began to experience
more extreme pain and went to the bathroom where she urinated excessive amounts of blood,
whereupon she called the nurse assigned to her to come and see. The nurse, after seeing the blood,
exclaimed, "Oh my God!" and rushed to call the doctor.
2
At this point in time, the doctor, without further ado, arrived with discharge forms to discharge
petitioner. Petitioner prompted the doctor to go to the bathroom to observe the blood petitioner had
urinated, but the doctor declined, stating that she did not have to see the bloody urine because the
nurse already told her, but she was now certain petitioner was suffering from UTI. She further stated
that she was going to start petitioner on some antibiotics (i.e. Cipro, 500 milligrams) and advised her to
follow up with the doctor that performed her surgery two weeks previously. She also asked petitioner to
see an urologist, based on her conclusion that petitioner had UTI.
Without further checks on petitioner despite petitioner's protestations, petitioner was duly discharged
on February 28, 2015 on the orders of Dr. Ann Czarnik. When petitioner arrived home, she was in
extreme pain but tried hard to sleep. However at 4.00 a.m., petitioner felt that her bladder was full and
distended and went to the bathroom to try to urinate; but she could not. She also felt something
hanging out from her vagina, and when she checked further, she discovered that it was blood clot
tracea ble from the bladder. Petitioner construed this to mean that the blood was issuing from the
bladder. Petitioner took a picture of this hanging blood clot.
She then called the hospital and asked to speak with Dr. Ann Czarnik, and when the operator asked for
her reason, petitioner explained her condition to her, whereupon the operator advised her to come to
the emergency room as soon as possibl e. Petitioner then headed straight with her husband to the
emergency room on March 01, 2015. On her way to the hospital, petitioner felt weaker and weaker and
was in a lot of pain and sweating all over. At the emergency room, she could hardly speak because of her
condition. She was then placed in the care of another doctor called Dr. Dille who explained that she was
taking over from Dr. Ann Czarnik. She then ordered for Foley Catheter to be inserted on petitioner to
drain the urine which was now almost black. The quantity of the urine was 550 cc.
Dr. Dille then scanned petitioner's bladder and observed that there was some blood clot blocking the
passage of the blood. She then immediately ordered a CT scan of the bladder. But before petitioner was
transported to do the CT scan, Dr. Dille called another doctor who came and interviewed petitioner.
After she listened to petitioner's full account of events as happened, she stated that Dr. Ann Czarnik
must have caused petitioner extreme trauma. While talking to petitioner, another doctor also came over
to listen to petitioner's account. The two doctors now invited another male doctor, and after conferring
among themselves for some time, thereafter told petitioner that they were going to first perform a
pelvic exam to find out whether the first doctor that performed the surgery might have poked the
bladder while sewing petitioner up after the surgery.
They finally performed this pelvic exam and made a visual conclusion that the stitches were all intact
and everything was healing well. But they repeated to petitioner their decision to do the CT scan. They
then transported petitioner to the CT scan room where for some unknown reason, petitioner spent a
whole forty-five minutes for a process that normally t akes not more than twenty minutes. After they
took petitioner back to the emergency room, the doctors disclosed to her that there was a hole in her
bladder as a result of the surgery performed by Dr. Michael Breen.
Thereafter, plaintiff was informed that they were going to keep the Catheter for two weeks, and that
she was going to be discharged immediate ly. But a good friend of the plaintiff who was also a nurse
made a loud protest against the decision to discharge plaintiff because she observed that petitioner's
urine was still dark. Thereafter the doctors immediately reversed their decision and secured a room for
plaintiff who stayed on admission for a further three days.
3
For the entire time after the surgery spanning plaintiff's traumatic distress, he never set eyes on Dr.
Mi chael Breen, the doctor that originally performed the total hysterectomy. However after her
discharge was delayed, Dr. Michael Breen who was on call on that particular day (i.e. M arch 01, 2015)
came and saw plaintiff, whereupon plaintiff reiterated that she was not leaving the hospital until she felt
reasonably well. Dr. Breen concurred and informed plaintiff that she was being recommen ded to see a
very good urologist called Dr. Singh Herb. The Doctor came to see plaintiff w ho explained to Dr. Herb
her situation. Dr. Singh also wondered aloud how the ER doctor prematurely discharged plaintiff without
finding out where the blood was coming from.
The following day, (i.e. on March 03, 2015), plaintiff was taken to the operation room and had general
anesthesia done again. The doctor did not consider the five millimeter hole to be big enough for stitches
and therefore left the catheter intact. Finally, plaintiff was discharged on Ma rch 03, 2015 and was given
a lot of pain medication. When plaintiff went home, he started bleeding again after only three days. She
called Dr. Singh who advised her to come to her clinic. She examined plaintiff the following day and
advised her that her insurance did not cover for the visit but she was going to examine plaintiff for free
on that particular day because he felt very sad about what happened. He then referred her to another
urologist called Dr. Lorene Jones who was within her HMO netwo rk.
Before seeing Dr. Jones, plaintiff was invited by Dr. Michael Breen for a follow-up. He advised pla intiff
that she needed a cystogram (a type of CT scan) to ensure that the hole was no more leaking. The
procedure was so painful that plaintiff nearly stopped them. The results of that cystogram was
thereafter faxed to Dr. Jones who inspected it and concluded that the hole in plaintiff's bladder had not
healed and was still leaking, and that plaintiff t herefore needed to keep the catheter on for another two
weeks.
After two weeks, plaintiff had to endure another CT scan after which Dr. Lorene Jones discontinued the
catheter on March 31, 2015.
CAUSES OF ACTION
Plaintiff has brought a cause of action in negligence against Dr. Michael Breen. Dr. Michael Breen owed
the duty of providing standard medical care to Ms. Margaret Reid during her hysterectomy surgery
w hich involved the removal of petitioner's uterus, cervix, ovaries and other surrounding reproductive
organs. Upon discovery of petitioner's manifold scar tissue due to prior surgery, this standard would
have required the defendant to open petitioner up, as he himself stated to the understanding of
petitioner prior to the operation. Dr. Michae l Breen breached this standard when he mane uvered
around the scar tissue, putting undue stress on petitioner's bladder region and leading to the physical
injury of a tear in her bladder and thereby proximately causing her the damage and distress and pain
and suffering.
This failure amounts to a breach of the applicable standard of medical care.
A.s a direct and proximate result of the breach of the applicable standard of medical care by the
Defendant, the Plaintiff: i. suffered conscious pain and suffering both in the past and, it is expected by
4
her physicians, the future, ii. incurred medical expenses in the past and will incur future medica l
expenses, iii. suffered mental and emotional sorrow and anguish, iv. was required to undergo additional
medical procedures and has sustained other damages.
That the initial bladder damage sustained by the Plaintiff was the direct and proximate result of the
negligent actions and breaches of the applicable standards of medical care by the Defendant without
any act or omission on the part of the Plaintiff directly thereunto contributing.
That the Plaintiff did not assume the risk of he r injuries.
Plaintiff alleges that on or about February 17, 2015 and thereafter, Defendant Michael Breen breached
the applicable standard of medical care owed to the Plaintiff Margaret Reid, which directly caused a
physical injury to the Plaintiff and was the direct and proximate cause of the Plaintiffs injuries and
damages.
WHEREFORE: The Plaintiff claims monetary damages against Michael Breen individually in an amount to
be determined at trial, plus cost s, and for any further relief that this Honorable Court determines
necessary and appropriate.
Furthermore, Ms. Margaret Reid intends to proceed against Dr. Ann Czarnik in negligence.
Dr. Ann Czarnik had a duty to provide a reasonable standard of medical care to petitioner as per their
doctor-patient relationship. But defendant deviated from this standard of medical care during the care
and treatment of the Plaintiff on or about February 28, 2015, when during care of plaintiff, she did not
exercise acceptable sta ndard of care in determining plaintiffs source of ailment, viz. where blood was
issuing from and insisted that petitioner was suffering from urinary tract infection, despite that
petitioner sufficiently described her condition to defendant.
Dr. Ann Czarnik deviated from the reasonable standard of medical care by her refusal to inspect the
urine of petitioner despite having information that petitioner's urine was dark, and also by her
premature discharge of petitioner. This deviation was the direct and proximate cause of a physical injury
to the plaintiff and the direct and proximate cause of all of the plaintiff's consequent pain and suffering.
WHEREFORE: plaintiff claims money damages against Dr. Ann Czarnik in an amount to be determined at
trial, plus costs, and for any further relief t hat the Court determines necessa ry and appropriate.
Again, as to Dr. Ann Czarnik, plaintiff will proceed with a cause of action in intentional infliction of
emotional distress (liED) .
Plaintiff re-a lieges and incorporates by reference herein all of the allegations contained in
paragraphs 34 to 37 against second defendant Dr. Ann Czarnik and in addition, asserts a cause of action
in Intentional Infliction of Emotional Distress ("liED") against sa me.
The elements for a cause of action for liED are as follows:
i. The plaintiff is a person . ii. The defendant acted intentionally or recklessly. iii. The emotional distress
suffered by the plaintiff was severe. 4. The defendant's conduct was extreme and outrageous. iv. The
5
defendant's conduct proximately caused the plaintiffs emotional distress. v. No alternative cause of
action will provide a remedy for the severe emotional distress caused by the defendant's conduct.
Kroger Tex. L.P . v. Suberu, 216 S.W.3d 788, 796 (Tex.2006); Hoffman-La Roche, Inc., v. Zeltwanger, 144,
S.W.3d 438, 447 (Tex.2004); Tiller v. Mclure, 121 S.W.3d 709, 713 (Tex.2003).
Petitioner is a person who had a patient-doctor relationship with second defendant on whom she
thereby entrusted her health. But defendant's action, from the onset was patently reckless, if not totally
intentional. She initiated a battery of tests on petitioner and came up with her own misdiagnosis despite
petitioner' s protestations. She ignored the dignity and feelings of petitioner and the suggestion of
nurses when she was called to come and see patient's urine, but instead, came with discharge papers
and totally ignored petitioner's painful protestations.
Given t he nature of defendant's conduct, it meets the threshold for being extreme and outrageous
because of the level of sheer disregard fo r professional care and decorum for the petitioner, and her
insistence in the face of plaintiffs denial that plaintiff was suffering from UTI. Defendant's action is the
direct and proximate cause of plaintiffs distress.
Defendant is therefore liable to plaintiff for her emotiona l distress.
Given the severity of plaintiff's distress, no alternative cause of action would provide a remedy for the
severe emotional distress caused by the defendant's conduct.
WHEREFORE: The Plaintiff claims monetary damages against Defendant Anne Czarnik in an amount to
be determined at trial, plus costs, and for any f urther relief that this Honorable Court deems necessary
and appropriate.
As to Seton Hospital, plaintiff will proceed in medical malpractice based on the theory of Respondeate
Superior and/or Agency
This is because during all of the times that t he plaintiff was receiving medical care and treatment from
defendants Michael Breen M.D. and Ann Czarnik, MD, these defendants were employed by Seton
Hosp ital, and that they were agents of their employer acting within the scope of their employment.
Thus Defendant Seton Hospital is responsible, via the theories of agency and respondeate superior for
the breach of applicable medical care caused by their employees, the defendants herein, which resulted
in a physical injury to the Plaintiff.
WHEREFORE: The Plaintiff claims monetary damages against Defendant Seton Hospital in an amount to
be determined at trial, plus costs, and for any further rel ief that this Hono rable Court deems necessary
and appropriate.
6
STIPULATION
We hereby stipulate, in response to your original answer to plaintiffs suit, that the plaintiff' s lawsuit has
been filed without prior notice to you and without furnishing you with a medical authorization form as
required in 74.052 of the code.
This notice is therefore intended to cure that pleading defect. It is also intended to abate the lawsuit for
sixty days after your receipt of this letter in accordance with the relevant rules.
It also tolls the applicable statute of limitations to and including a period of 75 days following the giving
of the notice. This tolling shall apply to all parties and potential parties.
Please also note that 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; provided, however, that the receipt of a medical authorization in the form
required by Section 74.052 executed by the claimant herein shall be considered compliance by the
claimant with this subsection.
CONClUSION
You may contact my office for any questions, concerns or proposal for amicable settlement.
Thank you.
Samuel Adjei Sarfo
Texas Bar No.: 24071896
Attorney for Margaret Reid
7
(
AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION
A. I, Margaret Reid, hereby authorize Michael Breen to obtain and disclose {within the parameters set
out below) the protected health information described below for the following specific purposes:
1. To facilitate the investigation and evaluation of the health care claim described in the accompanying
Notice of Health Care Claim; or
2. Defense of any litigation arising out of the claim made the basis of the accompanying Notice of Health
Care Claim.
B. The health information to be obtained, used, or disclosed extends to and includes the verba l as well
as the written and is specifically described as follows:
1. The health information in the custody of the following physicians or health care providers who have
examined, eva luated, or treated Margaret Reid in connection with the injuries alleged to have been
sustained in connection with the claim asserted in t he accompanying Notice of Health Care Claim. (Here
list the name and current address of all treating physicians or health care providers).
1. Dr. Ann Czarnik
17900 FM 1896
Austin, Texas 78737-1407
2. Dr. Michael Breen
17900 FM 1896
Austin, Texas 78737-1407
This authorization shall extend to any additional physicians or health care providers that may in the
future evaluate, examine, or treat Margaret Reid for injuries alleged in connection with the claim made
the basis of the attached Notice of Health Care Claim;
2. The health information in the custody of the following physicians or health care providers who have
exam ined, eval uated, or treated Margaret Reid during a period commencing five years prior to the
incident made the basis of t he accompanying Notice of Health Care Claim. (Here list the name and
current address of such physicians or health care providers, if applicable.)
Dr. Terri Bagwell
1710 Red River Street, Ste. 2104
Austin, Texas 78701
1
C. Excluded Health Information-the following constitutes a list of physicians or health care providers
possessing health care information concerning Margaret Reid to which this authorization does not
apply because I contend that such health care information is not relevant to the damages being
claimed or to the physical, mental, or emotional condition of Margaret Reid arising out of the claim
made the basis of the accompanying Notice of Health Care Claim. (Here state "none" or list the name
of each physician or health care provider to whom this authorization does not extend and the
inclusive dates of examination, evaluation, or treatment to be withheld from disclosure.)
NONE
D. The persons or class of persons to whom the health information of Margaret Reid will be disclosed or
who will make use of said information are:
1. Any and all physicians or health care providers providing care or treatment to Margaret Reid;
2. Any liability insurance entity providing liability insurance coverage or defense to any physician or
health care provider to whom Notice of Health Care Claim has been given with regard to the care and
treatment of Margaret Reid;
3. Any consulting or testifying experts employed by or on behalf of Michael Breen with regard to the
matter set out in the Notice of Health Care Claim accompanying this authorization;
4. Any attorneys (including secretarial, clerical, or paralegal staff) employed by or on behalf of Michael
Breen with regard to the matter set out in the Notice of Health Care Claim accompanying this
authorization;
5. Any trier of the law or facts relating to any suit filed seeking damages arising out of the medical care
or treatment of Margaret Reid.
E. This authorization shall expire upon resolution of the claim asserted or at the conclusion of any
litigation instituted in connection with the subject matter of the Notice of Health Care Claim
accompanying this authorization, whichever occurs sooner.
F. I understand that, without exception, I have the right to revoke this authorization in writing. I further
understand the consequence of any such revocation as set out in Section 74.052, Civil Practice and
Remedies Code.
G. I understand that the signing of this authorization is not a condition for continued treatment,
payment, enrollment, or eligibility for health plan benefits.
H. I understand that information used' or disclosed pursuant to this authorization may be subject to
redisclosure by the recipient and may no longer be protected by federal HIPAA privacy regulations.
MARGARET REID
Date: October 05, 2015
2
Appendix Tab 4
§ 74.351. Expert Report, TX CIV PRAC & REM § 74.351
Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annos)
Title 4. Liability in Tort
Chapter 74. Medical Liability (Refs & Annos)
Subchapter H. Procedural Provisions (Refs & Annos)
V.T.C.A., Civil Practice & Remedies Code § 74.351
§ 74.351. Expert Report
Effective: September 1, 2013
Currentness
(a) 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.
(b) 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 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.
(c) If an expert report has not been served within the period specified by Subsection (a) because elements of the report are
found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency. If the claimant
does not receive notice of the court's ruling granting the extension until after the 120-day deadline has passed, then the
30-day extension shall run from the date the plaintiff first received the notice.
(d) to (h) [Subsections (d)-(h) reserved]
(i) Notwithstanding any other provision of this section, a claimant may satisfy any requirement of this section for serving
an expert report by serving reports of separate experts regarding different physicians or health care providers or regarding
different issues arising from the conduct of a physician or health care provider, such as issues of liability and causation.
Nothing in this section shall be construed to mean that a single expert must address all liability and causation issues with
respect to all physicians or health care providers or with respect to both liability and causation issues for a physician
or health care provider.
© 2016 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 74.351. Expert Report, TX CIV PRAC & REM § 74.351
(j) Nothing in this section shall be construed to require the serving of an expert report regarding any issue other than
an issue relating to liability or causation.
(k) Subject to Subsection (t), an expert report served under this section:
(1) is not admissible in evidence by any party;
(2) shall not be used in a deposition, trial, or other proceeding; and
(3) shall not be referred to by any party during the course of the action for any purpose.
(l) A court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing,
that the report does not represent an objective good faith effort to comply with the definition of an expert report in
Subsection (r)(6).
(m) to (q) [Subsections (m)-(q) reserved]
(r) In this section:
(1) “Affected parties” means the claimant and the physician or health care provider who are directly affected by an
act or agreement required or permitted by this section and does not include other parties to an action who are not
directly affected by that particular act or agreement.
(2) “Claim” means a health care liability claim.
(3) [reserved]
(4) “Defendant” means a physician or health care provider against whom a health care liability claim is asserted. The
term includes a third-party defendant, cross-defendant, or counterdefendant.
(5) “Expert” means:
(A) with respect to a person giving opinion testimony regarding whether a physician departed from accepted
standards of medical care, an expert qualified to testify under the requirements of Section 74.401;
(B) with respect to a person giving opinion testimony regarding whether a health care provider departed from
accepted standards of health care, an expert qualified to testify under the requirements of Section 74.402;
© 2016 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 74.351. Expert Report, TX CIV PRAC & REM § 74.351
(C) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or
damages claimed and the alleged departure from the applicable standard of care in any health care liability claim,
a physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of
Evidence;
(D) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or
damages claimed and the alleged departure from the applicable standard of care for a dentist, a dentist or physician
who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of Evidence; or
(E) with respect to a person giving opinion testimony about the causal relationship between the injury, harm,
or damages claimed and the alleged departure from the applicable standard of care for a podiatrist, a podiatrist
or physician who is otherwise qualified to render opinions on such causal relationship under the Texas Rules of
Evidence.
(6) “Expert report” means a written report by an expert that provides a fair summary of the expert's opinions as of
the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician
or health care provider failed to meet the standards, and the causal relationship between that failure and the injury,
harm, or damages claimed.
(s) Until a claimant has served the expert report and curriculum vitae as required by Subsection (a), all discovery in
a health care liability claim is stayed except for the acquisition by the claimant of information, including medical or
hospital records or other documents or tangible things, related to the patient's health care through:
(1) written discovery as defined in Rule 192.7, Texas Rules of Civil Procedure;
(2) depositions on written questions under Rule 200, Texas Rules of Civil Procedure; and
(3) discovery from nonparties under Rule 205, Texas Rules of Civil Procedure.
(t) If an expert report is used by the claimant in the course of the action for any purpose other than to meet the service
requirement of Subsection (a), the restrictions imposed by Subsection (k) on use of the expert report by any party are
waived.
(u) Notwithstanding any other provision of this section, after a claim is filed all claimants, collectively, may take not
more than two depositions before the expert report is served as required by Subsection (a).
Credits
Added by Acts 2003, 78th Leg., ch. 204, § 10.01, eff. Sept. 1, 2003. Amended by Acts 2005, 79th Leg., ch. 635, § 1, eff.
Sept. 1, 2005; Acts 2013, 83rd Leg., ch. 870 (H.B. 658), § 2, eff. Sept. 1, 2013.
© 2016 Thomson Reuters. No claim to original U.S. Government Works. 3
§ 74.351. Expert Report, TX CIV PRAC & REM § 74.351
V. T. C. A., Civil Practice & Remedies Code § 74.351, TX CIV PRAC & REM § 74.351
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.
© 2016 Thomson Reuters. No claim to original U.S. Government Works. 4
Appendix Tab 5
§ 74.051. Notice, TX CIV PRAC & REM § 74.051
Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annos)
Title 4. Liability in Tort
Chapter 74. Medical Liability (Refs & Annos)
Subchapter B. Notice and Pleadings
V.T.C.A., Civil Practice & Remedies Code § 74.051
§ 74.051. Notice
Effective: September 1, 2003
Currentness
(a) Any person or his authorized agent asserting a health care liability claim shall give written notice of such claim by
certified mail, return receipt requested, to each physician or health care provider against whom such claim is being made
at least 60 days before the filing of a suit in any court of this state based upon a health care liability claim. The notice must
be accompanied by the authorization form for release of protected health information as required under Section 74.052.
(b) In such pleadings as are subsequently filed in any court, each party shall state that it has fully complied with the
provisions of this section and Section 74.052 and shall provide such evidence thereof as the judge of the court may require
to determine if the provisions of this chapter have been met.
(c) Notice given as provided in this chapter shall toll the applicable statute of limitations to and including a period of 75
days following the giving of the notice, and this tolling shall apply to all parties and potential parties.
(d) 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; provided, however, that the receipt
of a medical authorization in the form required by Section 74.052 executed by the claimant herein shall be considered
compliance by the claimant with this subsection.
(e) For the purposes of this section, and notwithstanding Chapter 159, Occupations Code, or any other law, a request
for the medical records of a deceased person or a person who is incompetent shall be deemed to be valid if accompanied
by an authorization in the form required by Section 74.052 signed by a parent, spouse, or adult child of the deceased
or incompetent person.
Credits
Added by Acts 2003, 78th Leg., ch. 204, § 10.01, eff. Sept. 1, 2003.
V. T. C. A., Civil Practice & Remedies Code § 74.051, TX CIV PRAC & REM § 74.051
Current through the end of the 2015 Regular Session of the 84th Legislature
© 2016 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 74.051. Notice, TX CIV PRAC & REM § 74.051
End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.
© 2016 Thomson Reuters. No claim to original U.S. Government Works. 2
Appendix Tab 6
§ 74.052. Authorization Form for Release of Protected..., TX CIV PRAC & REM...
Vernon's Texas Statutes and Codes Annotated
Civil Practice and Remedies Code (Refs & Annos)
Title 4. Liability in Tort
Chapter 74. Medical Liability (Refs & Annos)
Subchapter B. Notice and Pleadings
V.T.C.A., Civil Practice & Remedies Code § 74.052
§ 74.052. Authorization Form for Release of Protected Health Information
Effective: September 1, 2003
Currentness
(a) Notice of a health care claim under Section 74.051 must be accompanied by a medical authorization in the form
specified by this section. Failure to provide this authorization along with the notice of health care claim shall abate all
further proceedings against the physician or health care provider receiving the notice until 60 days following receipt by
the physician or health care provider of the required authorization.
(b) If the authorization required by this section is modified or revoked, the physician or health care provider to whom
the authorization has been given shall have the option to abate all further proceedings until 60 days following receipt of
a replacement authorization that must comply with the form specified by this section.
(c) The medical authorization required by this section shall be in the following form and shall be construed in accordance
with the “Standards for Privacy of Individually Identifiable Health Information” (45 C.F.R. Parts 160 and 164).
AUTHORIZATION FORM FOR RELEASE OF PROTECTED HEALTH INFORMATION
A. I, __________ (name of patient or authorized representative), hereby authorize __________ (name of physician
or other health care provider to whom the notice of health care claim is directed) to obtain and disclose (within the
parameters set out below) the protected health information described below for the following specific purposes:
1. To facilitate the investigation and evaluation of the health care claim described in the accompanying Notice of
Health Care Claim; or
2. Defense of any litigation arising out of the claim made the basis of the accompanying Notice of Health Care Claim.
B. The health information to be obtained, used, or disclosed extends to and includes the verbal as well as the written
and is specifically described as follows:
1. The health information in the custody of the following physicians or health care providers who have examined,
evaluated, or treated __________ (patient) in connection with the injuries alleged to have been sustained in connection
with the claim asserted in the accompanying Notice of Health Care Claim. (Here list the name and current address
of all treating physicians or health care providers). This authorization shall extend to any additional physicians or
health care providers that may in the future evaluate, examine, or treat __________ (patient) for injuries alleged in
connection with the claim made the basis of the attached Notice of Health Care Claim;
© 2016 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 74.052. Authorization Form for Release of Protected..., TX CIV PRAC & REM...
2. The health information in the custody of the following physicians or health care providers who have examined,
evaluated, or treated __________ (patient) during a period commencing five years prior to the incident made the basis
of the accompanying Notice of Health Care Claim. (Here list the name and current address of such physicians or
health care providers, if applicable.)
C. Excluded Health Information--the following constitutes a list of physicians or health care providers possessing health
care information concerning __________ (patient) to which this authorization does not apply because I contend that such
health care information is not relevant to the damages being claimed or to the physical, mental, or emotional condition
of __________ (patient) arising out of the claim made the basis of the accompanying Notice of Health Care Claim. (Here
state “none” or list the name of each physician or health care provider to whom this authorization does not extend and
the inclusive dates of examination, evaluation, or treatment to be withheld from disclosure.)
D. The persons or class of persons to whom the health information of __________ (patient) will be disclosed or who
will make use of said information are:
1. Any and all physicians or health care providers providing care or treatment to __________ (patient);
2. Any liability insurance entity providing liability insurance coverage or defense to any physician or health care
provider to whom Notice of Health Care Claim has been given with regard to the care and treatment of __________
(patient);
3. Any consulting or testifying experts employed by or on behalf of __________ (name of physician or health care
provider to whom Notice of Health Care Claim has been given) with regard to the matter set out in the Notice of
Health Care Claim accompanying this authorization;
4. Any attorneys (including secretarial, clerical, or paralegal staff) employed by or on behalf of __________ (name of
physician or health care provider to whom Notice of Health Care Claim has been given) with regard to the matter set
out in the Notice of Health Care Claim accompanying this authorization;
5. Any trier of the law or facts relating to any suit filed seeking damages arising out of the medical care or treatment
of __________ (patient).
E. This authorization shall expire upon resolution of the claim asserted or at the conclusion of any litigation instituted
in connection with the subject matter of the Notice of Health Care Claim accompanying this authorization, whichever
occurs sooner.
F. I understand that, without exception, I have the right to revoke this authorization in writing. I further understand the
consequence of any such revocation as set out in Section 74.052, Civil Practice and Remedies Code.
G. I understand that the signing of this authorization is not a condition for continued treatment, payment, enrollment,
or eligibility for health plan benefits.
H. I understand that information used or disclosed pursuant to this authorization may be subject to redisclosure by the
recipient and may no longer be protected by federal HIPAA privacy regulations.
Signature of Patient/Representative
.........................................................................................................................................................................................
© 2016 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 74.052. Authorization Form for Release of Protected..., TX CIV PRAC & REM...
Date
____________________
Name of Patient/Representative
.........................................................................................................................................................................................
Description of Representative's Authority
.........................................................................................................................................................................................
Credits
Added by Acts 2003, 78th Leg., ch. 204, § 10.01, eff. Sept. 1, 2003.
V. T. C. A., Civil Practice & Remedies Code § 74.052, TX CIV PRAC & REM § 74.052
Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.
© 2016 Thomson Reuters. No claim to original U.S. Government Works. 3