Opinion
No. 14-02-00162-CV.
Memorandum Opinion filed April 3, 2003.
On Appeal from the 215th District Court, Harris County, Texas, Trial Court Cause No. 00-63686
Affirmed.
Panel consists of Justices YATES, ANDERSON, and FROST.
MEMORANDUM OPINION
Appellant Kimberly Nonmacher appeals a judgment dismissing her medical-malpractice lawsuit as a sanction for her failure to file adequate expert reports as to the two defendant-doctors. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01 (Vernon Supp. 2003). On appeal, Nonmacher claims both expert reports represented a good-faith effort to comply with the statute and, in the alternative, the trial court should have granted her a thirty-day grace period. Nonmacher also complains that the Texas Supreme Court's directive to examine only the "four corners" of a tendered report to determine whether it represents a good-faith effort at compliance (1) is a violation of the statutory prohibition against adopting rules in conflict with article 4590i, section 13.01, and (2) deprived Nonmacher of procedural due process. We affirm.
Factual and Procedural Background
Appellant Kimberly Nonmacher apparently was born with a rare vascular disorder known as hemihypertrophy hemangioma. In 1998, she was diagnosed with a fibroid uterine tumor. She went to see Dr. Marcella Ritter, an OB/GYN specialist, who prescribed two injections of Lupron Depot hormone, at three-month intervals, for the purpose of shrinking the tumor, followed by surgery to remove the tumor. Nonmacher's surgery was scheduled for April 1999. Nonmacher received the first injection in October 1998. In January 1999, Nonmacher was admitted to the emergency room with severe abdominal pain, at which time she received the second injection. On March 21, 1999, Nonmacher was admitted to the emergency room with complaints of abdominal pain, nausea, and paralysis. Nonmacher alleges that she tried to see Dr. Ritter the next day, but Dr. Ritter refused to see her.
On March 23, Nonmacher began bleeding internally and was again taken to the emergency room. There, Dr. Byron Holt performed an emergency hysterectomy, during which he removed the tumor as well as Nonmacher's ovaries. Following the surgery, Dr. Holt prescribed hormone replacement therapy, including estrogen. Nonmacher alleges that since her surgery, she suffers from serious blood clotting that has impaired her quality of life.
Nonmacher filed suit against both Dr. Ritter and Dr. Holt, alleging medical negligence. Nonmacher claims Dr. Ritter was negligent in (1) prescribing the wrong dosage of Lupron Depot, (2) failing to evaluate Nonmacher's condition at regular intervals, and (3) failing to re-evaluate Nonmacher when Dr. Ritter was informed of her complications. Nonmacher further alleges Dr. Holt was aware of her rare vascular condition and negligently failed to either research the condition or consult a hematologist before prescribing estrogen. In an effort to comply with article 4590i, section 13.01, Nonmacher filed two separate reports, from two different doctors, addressing the conduct of Dr. Ritter and Dr. Holt. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d). Both defendants filed motions to dismiss Nonmacher's claims for noncompliance with the statute. See id. § 13.01(e). Nonmacher responded to the motions by contending that the submitted reports were sufficient under the statute. In addition, Nonmacher timely filed separate motions requesting a thirty-day grace period to comply with section 13.01. See id. § 13.01(g). The trial court granted both defendants' motions to dismiss and denied Nonmacher's motions for a grace period.
Sufficiency of Expert Reports
Section 13.01 of article 4590i sets forth certain procedural requirements applicable to health care liability claims. Under subsection (d), a claimant who wishes to pursue her claim is required to furnish an expert report for each defendant. Id. § 13.01(d). The statute defines an "expert report" as
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 [defendant] failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.
Id. § 13.01(r)(6). Thus, the report must set out, in non-conclusory language, the expert's opinions about three elements of the claim: the standard of care, breach, and causation. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). Subsection (e) provides that if the plaintiff fails to comply with subsection (d) within the time allowed, the court shall, on the defendant's motion, enter an order dismissing the claim with prejudice as a sanction against the claimant. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(e); Palacios, 46 S.W.3d at 877. Finally, subsection ( l) requires the trial court to grant a motion challenging the adequacy of an expert report "if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the definition of an expert report in Subsection (r)(6) of this section." Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01( l). The report itself must include the required information within its four corners. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 53 (Tex. 2002); Palacios, 46 S.W.3d at 878.
Report on Dr. Ritter
In her first issue, Nonmacher claims the trial court erred in dismissing her claim against Dr. Ritter because the report she submitted in connection with this claim complied with article 4590i, section 13.01. We review the trial court's dismissal of a claim under section 13.01(e) for an abuse of discretion. Palacios, 46 S.W.3d at 878. As to Dr. Ritter's treatment, Nonmacher presented the report of Dr. Bruce Carr. The trial court found that Dr. Carr's report "does not represent a good faith effort to comply with the definition of an expert report in Section 13.01(r)(6)." Dr. Carr's report states that a woman being treated with Lupron Depot "should be appropriately evaluated at regular intervals," and if the patient reports increasing pain, she "should be seen earlier and re-evaluated." This report also states that, for injections given at three-month intervals, a larger dose of Lupron Depot should have been prescribed. Dr. Carr's report then states the following:
Thus the drug was probably not having much effect and would explain why she still had menstrual periods. However, the outcome, i.e. surgical removal of the fibroid was performed as planned, but in an emergency situation which placed the patient at increased risk.
According to Nonmacher, the harm as described by Dr. Carr is the "increased risk" she faced as a result of having her surgery in an emergency situation as opposed to when it was scheduled. Dr. Carr's report can fairly be read to suggest that the emergency nature of her surgery resulted in increased risk. However, Dr. Carr's report does not provide a fair summary of his opinion regarding the causal connection, if any, between Dr. Ritter's alleged negligence and Nonmacher's need for emergency surgery or the resulting increased risk to her.
Nonmacher claims that Dr. Carr's reference to "surgical removal of the fibroid . . . in an emergency situation" as "the outcome" demonstrates that Dr. Ritter's negligence caused her injury. We disagree. Nothing in Dr. Carr's report links this "outcome" to any alleged negligence by Dr. Ritter. The trial court reasonably could have determined that Dr. Carr's report failed to represent a good-faith effort to summarize the causal relationship. See Wright, 79 S.W.3d at 53. Accordingly, the trial court did not abuse its discretion in granting Dr. Ritter's motion to dismiss. We overrule Nonmacher's first issue.
Report on Dr. Holt
Nonmacher similarly claims, in her third issue, that the report concerning Dr. Holt, prepared by Dr. Brad Van Voorhis, complied with section 13.01. In this report, Dr. Van Voorhis states that, in his opinion, consultation with a hematologist or vascular disease expert before giving Nonmacher estrogen "would have been prudent." Dr. Van Voorhis also states that other options exist for protection against bone loss that would not place the patient at increased risk of blood clots, as estrogen would. We conclude that this language does not constitute an opinion regarding the applicable standard of care, nor does it constitute an opinion as to whether Dr. Holt's treatment failed to meet that standard. At best, Dr. Van Voorhis's report merely states that he would have treated Nonmacher differently and that another course of treatment was less risky. Thus, Dr. Van Voorhis's report does not satisfy the requirements of section 13.01. See Palacios, 46 S.W.3d at 880. The trial court did not abuse its discretion in granting Dr. Holt's motion to dismiss. Nonmacher's third issue is overruled.
The relevant portion of Dr. Van Voorhis's report states as follows:
[T]he use of estrogen may have contributed to the development of blood clots in Kimberly Nonmacher. . . . There are other options for protection against bone loss that would not place a patient at increased risk for the development of blood clots as estrogen does. In my opinion, consultation with a hematologist or vascular disease expert would have been prudent before giving this patient estrogen. On the other hand, patients with KTS are at risk for developing blood clots even in the absence of estrogen therapy so it is hard to say the exact cause of the blood clot that developed.
Motions for Thirty-Day Grace Period
In her second and fourth issues, Nonmacher asserts the trial court erred in denying her a thirty-day grace period to bring her expert reports in compliance with the statutory requirements. Nonmacher filed motions as to both defendants under section 13.01(g), which provides as follows:
Notwithstanding any other provision of this section, if a claimant has failed to comply with a deadline established by Subsection (d) of this section and after hearing the court finds that the failure of the claimant or the claimant's attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection.
Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(g). Nonmacher claims she was entitled to a grace period because her failure to comply with section 13.01(d) resulted from an accident or mistake. We review the trial court's denial of her motions under an abuse-of-discretion standard. See Nguyen v. Kim, 3 S.W.3d 146, 151 (Tex.App.-Houston [14th Dist.] 1999, no pet.).
As to Nonmacher's claims against both defendants, the trial court found that her "failure to file the required expert report[s] . . . was not the result of an accident or mistake." With respect to Dr. Ritter, the only "mistake" Nonmacher identifies in her brief is that her attorney was "too generous in allowing multiple postponements of depositions" that prevented Dr. Carr from being able to review those depositions before submitting his report. Nonmacher makes the same argument regarding Dr. Van Voorhis's report on Dr. Holt. However, Nonmacher provided the trial court with no evidence to suggest that these depositions were necessary for Dr. Carr or Dr. Van Voorhis to provide a fair summary of their opinions regarding the applicable standards of care, breach, and causation. Thus, even if we assume that the actions of Nonmacher's attorney were an "accident or mistake" as contemplated by section 13.01(g), the trial court did not err in finding that Nonmacher's failure to comply with section 13.01(d) did not result from those actions.
As to her claim against Dr. Holt, Nonmacher also claims that her attorney's mistake in postponing the deposition of Nonmacher's treating physician, Dr. Joel Abramowitz, prevented her from using the transcript of Dr. Abramowitz's deposition as an expert report. However, in his deposition, Dr. Abramowitz expressly refused to give his opinion regarding the applicable standard of care for a doctor in Dr. Holt's position. This deposition transcript would not have satisfied the statutory definition of an "expert report." See Palacios, 46 S.W.3d at 880. Therefore, any delay in deposing Dr. Abramowitz was not a cause of Nonmacher's noncompliance with section 13.01(d).
Finally, Nonmacher contends her attorney mistakenly signed a medical authorization form that permitted Dr. Holt's attorneys to talk to Nonmacher's treating physician about her treatment without Nonmacher's attorney being present. In a supplemental finding of fact, the trial court found that Nonmacher's attorney was not aware of this provision and would not have signed it otherwise. However, Nonmacher presented no evidence why this "mistake" prevented her from complying with section 13.01(d). Nonmacher's argument relies on wholly unsupported speculation that (1) Dr. Holt's attorneys improperly used this authorization to convince Nonmacher's treating physician not to provide a report against Dr. Holt and (2) any such report would have satisfied section 13.01(r)(6). Because Nonmacher presented no evidence to support these claims, the trial court reasonably could have determined that Nonmacher's noncompliance with section 13.01(d) was not a result of this mistake by Nonmacher's attorney.
The trial court did not abuse its discretion in denying either of Nonmacher's motions for a thirty-day grace period. We overrule Nonmacher's second and fourth issues.
Dr. Ritter also argues that section 13.01 does not provide for a thirty-day extension when, as here, the claimant timely files a report, but the court finds it does not represent a good-faith effort to comply with section 13.01(r)(6). Because we conclude that Nonmacher would not have been entitled to an extension under section 13.01(g), we need not address this issue.
Reliance on Palacios
In her final three issues, Nonmacher claims the trial court erroneously relied on the Texas Supreme Court's opinion in Palacios in dismissing her claims. Specifically, Nonmacher attacks the Palacios court's pronouncement that the only relevant information in deciding a challenge to the adequacy of an expert report is "within the four corners" of the report. Palacios, 46 S.W.3d at 878. Nonmacher argues (1) the Palacios court adopted a "rule" in violation of section 13.01(q), and (2) this "rule" violates Nonmacher's rights under the Fourteenth Amendment to the United States Constitution and the "open courts" provision of the Texas Constitution. See U.S. Const. amend. XIV; Tex. Const. art. I, § 13.
Section 13.01(q)
In her fifth issue, Nonmacher claims the trial court erred in following Palacios because the supreme court's opinion violated section 13.01(q), which provides that "[n]otwithstanding the provisions of Section 22.004, Government Code, the supreme court may not amend or adopt rules in conflict with [section 13.01]." Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(q). Section 22.004 of the Government Code authorizes the supreme court to promulgate rules of practice and procedure in civil actions and establishes specific procedures for the adoption and amendment of those rules. See Tex. Gov't Code Ann. § 22.004 (Vernon Supp. 2002). The supreme court's opinion in Palacios did not adopt or amend any "rules" as contemplated by section 13.01(q). See State Dep't of Highways Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992) ("[W]e do not revise our rules by opinion.").
Furthermore, Nonmacher has not shown any conflict between the Palacios "rule" and section 13.01. Nonmacher claims that because section 13.01(l) requires a "hearing," the Legislature intended to permit claimants to present relevant evidence outside of the report. However, the statute's reference to a "hearing" does not necessarily contemplate the presentation of evidence. See Black's Law Dictionary 725 (7th ed. 1999) (distinguishing an "evidentiary hearing" from "a hearing at which only legal argument is presented"). Indeed, unless the express language or context of the statute requires it, the term "hearing" does not even require a personal appearance or oral presentation to the court. See Gulf Coast Inv. Corp. v. NASA 1 Bus. Ctr., 754 S.W.2d 152, 153 (Tex. 1988) (per curiam). Accordingly, the Palacios court did not violate section 13.01(q). We overrule Nonmacher's fifth issue.
Constitutional Challenges
In her sixth and seventh issues, Nonmacher claims the trial court's exclusive reliance on the "four corners" of the submitted report deprived her of procedural due process. Nonmacher argues that because the trial court refused to consider evidence outside the report on the question of whether the report represented a good-faith effort to comply with the statute, she was deprived of her right to a hearing. As noted above, however, Nonmacher has not demonstrated any entitlement to an evidentiary hearing. There is no dispute that Nonmacher was given an opportunity to be heard before the trial court dismissed her claims. We overrule Nonmacher's sixth and seventh issues.
Dr. Ritter's Cross Point
In her brief, Dr. Ritter raises a single cross point, asserting that the trial court erred in failing to award her attorney's fees and court costs. Because Dr. Ritter did not file a notice of appeal, we will not consider this argument. See Tex.R.App.P. 25.1(c).
Conclusion
Properly relying on our supreme court's opinion in Palacios, the trial court did not abuse its discretion in dismissing all of Nonmacher's claims for noncompliance with article 4590i, section 13.01. Nor did the trial court abuse its discretion in denying Nonmacher's requests for an additional thirty days to comply. We affirm the trial court's judgment.