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

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-16-00301-CV
Margaret Reid, Appellant
v.
Seton Hospital, Dr. Michael Breen, and Dr. Ann Czarnik, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. D-1-GN-15-003300, HONORABLE KARIN CRUMP, JUDGE PRESIDING
MEMORANDUM OPINION
Margaret Reid appeals the trial court’s dismissal with prejudice of her medical-
malpractice lawsuit against appellees Seton Hospital, Dr. Michael Breen, and Dr. Ann Czarnik. The
issues on appeal concern whether Reid’s late-served notice of claim and medical authorization, see
Tex. Civ. Prac. & Rem. Code § 74.051, automatically abated the lawsuit and tolled the 120-day
period in which she was required to serve an expert report, see id. § 74.351(a), (b), absent an
agreement between the parties or a court order to abate or extend the expert-report deadline. We
hold that they did not and, accordingly, affirm the trial court’s dismissal of Reid’s lawsuit.
BACKGROUND
Reid filed her lawsuit on August 10, 2015, making claims against all appellees for
medical malpractice and against Dr. Czarnik for intentional infliction of emotional distress (IIED)
arising from injuries she sustained in the course of undergoing hysterectomy surgery performed by
Dr. Breen at Seton and later receiving emergency-care services from Dr. Czarnik due to surgery
complications. It is undisputed that Reid’s lawsuit asserts “health care liability claims” (HCLCs)
subject to the requirements of chapter 74 of the Texas Civil Practice and Remedies Code, see id.
§§ 74.001–.507, and that Reid did not provide appellees with the statutorily required “notice of
claim” and “medical authorization” before filing her suit. See id. § 74.051 (“Any person . . .
asserting a health care liability claim shall give written notice of such claim . . . 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.”).
Nearly a month after appellees filed their answers, in which they made verified
denials that Reid had failed to provide the statutory notice of claim and medical authorization, Reid
sent appellees the required notice of claim and medical authorization, accompanied by a “stipulation”
in which she acknowledged her pleading defect and stated that the notice was “intended to abate the
lawsuit for sixty days after [appellees’] receipt of this letter in accordance with the relevant rules . . .
[and] also tolls the applicable statute of limitations to and including a period of 75 days following
the giving of the notice.” See id. § 74.051(c) (“Notice given as provided in this chapter [i.e., notice
of claim given 60 days before filing suit] 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.”).
After 120 days had elapsed since they filed their answers and Reid had not served
them with the statutorily required expert report, appellees filed a motion to dismiss, which the trial
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court granted after a non-evidentiary hearing. See id. § 74.351(a), (b) (requiring plaintiff making
HCLC to serve defendant with expert report no later than 120 days after defendant files original
answer and providing that, on motion of affected physician or health care provider, court “shall”
enter order dismissing plaintiff’s claim with prejudice and awarding defendant attorney’s fees upon
plaintiff’s failure to timely serve expert report). Reid requested findings of fact and conclusions of
law, which the trial court did not make; filed a motion for new trial, which was overruled by
operation of law; and then filed this appeal of the dismissal of her lawsuit.
DISCUSSION
In her first three issues, Reid contends that her late service upon appellees of her
notice of claim and medical authorization automatically abated the lawsuit for 60 days, which also
functioned to toll the deadline for serving expert reports by 60 days and that, accordingly, her expert-
report deadline had not expired when appellees filed their motion to dismiss. Appellees respond that
the lawsuit was not abated because there was no agreement between the parties or a court order to
abate and that, even had abatement been triggered “automatically,” it would not have altered the
statutory deadline for serving expert reports because there was no explicit extension of that deadline.
See Spectrum Healthcare Res., Inc. v. McDaniel, 306 S.W.3d 249, 254 & n.5 (Tex. 2010) (holding
that, for agreed order or written agreement to extend section 74.351 threshold expert-report deadline,
order “must explicitly indicate parties’ intention to extend deadline and reference that specific
deadline” to be effective).
We will review the trial court’s ruling on appellees’ motion to dismiss for abuse
of discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006) (per curiam); Carroll v. Humsi,
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342 S.W.3d 693, 696 (Tex. App.—Austin 2011, no pet.), abrogated on other grounds by Zanchi v.
Lane, 408 S.W.3d 373 (Tex. 2013). A trial court abuses its discretion if it acts in an arbitrary or
unreasonable manner or if it acts without reference to any guiding rules and principles. Bowie Mem’l
Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam).
This Court has held that a plaintiff may not unilaterally abate a case without a
court order for purposes of extending the expert-report deadline. See Quint v. Alexander, No. 03-04-
00819-CV, 2005 WL 2805576, at *4–5 (Tex. App.—Austin Oct. 28, 2005, pet. denied) (mem. op.)
(holding that after failing to provide 60-day pre-suit notice, plaintiff could not “self-abate” case
without judicial permission in order to extend statutory expert-report deadline and affirming trial
court’s dismissal of plaintiff’s HCLCs); cf. Schepps v. Presbyterian Hosp. of Dall., 652 S.W.2d 934,
938 (Tex. 1983) (noting that defendant may move for period of abatement when plaintiff does
not comply with pre-suit notice requirement). Several of our sister courts have similarly held that
untimely service of a pre-suit notice or medical authorization does not toll or extend the 120-day
period for service of the expert report, regardless of whether it achieves a 60-day abatement of the
lawsuit for other purposes.1 See, e.g., McWashington v. Harris Cty. Hosp. Dist., 208 S.W.3d 64, 69
(Tex. App.—Houston [14th Dist.] 2006, no pet.) (holding that abatement of case under section
1
The one case that Reid cites as being in her favor, Lim v. West, No. 01-08-00469-CV,
2008 WL 4670991, at *1–2 (Tex. App.—Houston [1st. Dist.] Oct. 23, 2008, pet. denied) (mem. op.),
is distinguishable and inapposite. In Lim, the appellate court concluded that the trial court did not
abuse its discretion in denying the defendants’ motion to dismiss because (1) there was a fact issue
concerning the effect of the abatement order (i.e., Was it abated for all purposes within chapter 74,
including an extension of the expert-report deadline, or was it abated only for other purposes?),
(2) the appellate record was insufficient to resolve the issue, and (3) the appellate court was
accordingly bound by the presumption that the trial court found all facts necessary to support its
ruling. See id.
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74.052(a) does not toll or extend 120-day period for filing expert report); Emeritus Corp. v.
Highsmith, 211 S.W.3d 321, 324 (Tex. App.—San Antonio 2006, pet. denied) (reversing trial court’s
denial of defendants’ motion to dismiss where parties’ abatement agreement did not explicitly
extend time to file expert report); Hagedorn v. Tisdale, 73 S.W.3d 341, 347–49 (Tex. App.—Amarillo
2002, no pet.) (holding that absent agreement between parties 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 report). Based on these authorities and the sound reasoning contained therein,2
and in light of the lack of an order of abatement or agreement to abate that explicitly extended the
deadline for filing the expert report, see Spectrum Healthcare Res., 306 S.W.3d at 254 & n.5, we
hold that the trial court did not abuse its discretion in granting appellees’ motion to dismiss, and we
accordingly overrule Reid’s first through third issues.
In her fourth issue, Reid contends that the trial court erred in dismissing her IIED
claim against Dr. Czarnik because the claim, “although arising out of the same transaction and
occurrence” as her HCLC, was nonetheless a “distinct and independent claim, requiring no expert
report,” and the trial court “paid no heed to the relevant rules which duly separate a claim in
negligence from a claim in medical malpractice.” However, apart from making these bald contentions,
Reid does not identify any authority or make any argument in support of them, and we reject her
attempt to circumvent the requirements of chapter 74 by merely asserting that the IIED claim
2
See, e.g., Hagedorn v. Tisdale, 73 S.W.3d 341, 347–49 (Tex. App.—Amarillo 2002, no
pet.) (explaining that extending time to serve expert report because of plaintiff’s failure to comply
with pre-suit notice requirement would reward plaintiff for not complying with law, that plaintiff to
some extent chooses when to file lawsuit and knows she has 120 days to serve expert report, and that
purpose of chapter 74 to “curtail frivolous claims against physicians and other health care providers”
would be frustrated by adopting plaintiff’s argument).
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is “distinct” from the other HCLCs in this lawsuit. See PM Mgmt.-Trinity NC, LLC v. Kumets,
404 S.W.3d 550, 552 (Tex. 2013) (per curiam) (“[C]laims that are based on the same facts as HCLCs
are themselves HCLCs and must be dismissed absent a sufficient expert report.”); Yamada v. Friend,
335 S.W.3d 192, 196–97 (Tex. 2010) (holding that claims based on same facts as those constituting
HCLCs cannot be maintained as ordinary negligence claims apart from chapter 74’s requirements).
“Whether a claim is a health care liability claim depends on the underlying nature of the claim being
made,” and “[a]rtful pleading does not alter that nature.” Yamada, 335 S.W.3d at 196. Reid’s IIED
claim is a claim (1) against a health care provider; (2) concerning treatment, lack of treatment, or
departure from the standard of care; and (3) asserting that the provider’s act is alleged to have
proximately caused injury, which we presume is an HCLC absent allegations in the record rebutting
this presumption. See Loaisigna v. Cerda, 379 S.W.3d 248, 256–57 (Tex. 2012). Reid has
identified no facts supporting her IIED claim that are substantively distinct from those supporting
her HCLCs, nor has our review of her pleadings uncovered any. We overrule her fourth issue.
In her fifth and final issue, Reid contends that the trial court erred by refusing to file
findings of fact and conclusions of law and that harm to her therefrom is “presumed” on appeal unless
the record affirmatively shows that she suffered no injury. See Tenery v. Tenery, 932 S.W.2d 29,
30 (Tex. 1996) (per curiam) (holding that trial court’s error in failing to make findings upon proper
and timely request by party, as required by family code, is harmful if it prevents appellant from
properly presenting case to appellate court). However, Texas courts have consistently held that
findings of fact and conclusions of law are not required when a trial court dismisses an HCLC for
the plaintiff’s failure to comply with chapter 74’s expert-report requirements and that a trial court
does not err in refusing to file them. See Davis v. Spring Branch Med. Ctr., Inc., 171 S.W.3d 400,
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413–14 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (holding that trial court did not abuse
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.—Houston
[14th Dist.] 2005, pet. denied) (same); Sandles v. Howerton, 163 S.W.3d 829, 834 & n.5 (Tex.
App.—Dallas 2005, no pet.) (declining to presume harm from trial court’s refusal to issue findings
of fact and conclusions of law where findings were not required for dismissal under section 74.351
predecessor); see also IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997)
(explaining that findings and conclusions are not required when judgment is rendered as sanction
because (1) they are often unnecessary, (2) making them in every case would unduly burden trial
courts, and (3) appellate courts are not obliged to give them same level of deference as those made
after trial on merits). Accordingly, we hold that the trial court did not err in refusing to file findings
of fact and conclusions of law upon Reid’s request, and we overrule her fifth issue.
CONCLUSION
Because the district court did not abuse its discretion in dismissing with prejudice
Reid’s lawsuit, we affirm its order of dismissal.
__________________________________________
David Puryear, Justice
Before Justices Puryear, Pemberton, and Field
Affirmed
Filed: November 30, 2016
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