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nothing in the agreed order, either directly or by implication, suggested the parties agreed to extend the statutory deadline
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No. 04-05-00764-CV
Delivered and Filed: April 5, 2006.
Appeal from the 381st Judicial District Court, Starr County, Texas, Trial Court No. DC-04-143, Honorable John A. Pope, III, Judge Presiding.
Reversed and Remanded.
Sitting: Sarah B. DUNCAN, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
In this interlocutory appeal, Francisco G. Rugama, M.D., appeals from the trial court's order denying his motion to dismiss health care liability claims brought against him by Maria Guadalupe Escobar. Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(9) (Vernon Supp. 2005). We conclude Escobar's expert report was untimely served under § 74.351 of the Texas Civil Practice and Remedies Code, and therefore, the trial court abused its discretion in denying Rugama's motion to dismiss. We reverse the trial court's order and remand this cause for further proceedings consistent with this opinion.
Background
Dr. Rugama treated one of his patients, Jesus Escobar, for chest pain on February 3, 2004. Later that day, Jesus suffered a heart attack and died at Starr County Memorial Hospital in Rio Grande City, Texas. Jesus's widow, Maria Guadalupe Escobar, filed an action in district court seeking injunctive relief to preserve Jesus's medical records. Subsequently, on March 22, 2005, Escobar amended her pleadings to include health care liability claims against Rugama. Under § 74.351 of the Texas Civil Practice and Remedies Code, Escobar's deadline to serve her expert report was 120 days later — July 20, 2005. In a docket control order signed by counsel for both parties, the trial court set a July 29, 2005 deadline for Escobar to designate experts. Escobar served a purported expert report on the defendants on July 29, 2005, more than 120 days after pleading her health care liability claims.
Escobar filed suit against Rugama individually, as personal representative of the estate of Jesus Escobar, as next friend of Jesus's minor children, and on behalf of all those entitled to recover for the wrongful death of Jesus Escobar.
Rugama filed a motion to dismiss Escobar's health care liability claims based on the untimely expert report. In opposing dismissal, Escobar's sole argument was that the deadline for filing the expert report was extended by the docket control order. After a hearing, the trial court denied the motion to dismiss. Rugama filed the instant appeal.
After Escobar's deadline for filing a brief passed, the clerk of this court informed Escobar's counsel that this cause was set for submission on February 23, 2006. Still, no appellee's brief has been filed in this cause. Accordingly, we decide this appeal based on Rugama's brief and the record before us.
Standard of Review
A trial court's order granting or denying a motion to dismiss a health care liability claim for not timely serving an expert report is reviewed for an abuse of discretion. See Kendrick v. Garcia, 171 S.W.3d 698, 702 (Tex.App.-Eastland 2005, pet. filed) (citing Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003); Am. Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873, 877-78 (Tex. 2001)) (questioning applicability of abuse of discretion standard after 2003 amendments to statute but using abuse of discretion standard in the absence of contrary authority).
The "Expert Report" Under § 74.351
Under § 74.351 of the Texas Civil Practice and Remedies Code, a claimant must, not later than the 120th day after the date a health care liability claim is filed, serve on each party one or more expert reports addressing liability and causation and a curriculum vitae for each expert. Tex. Civ. Prac. Rem. Code Ann. § 74.351(a) (Vernon 2005). The date for serving the report may be extended by written agreement of the affected parties. Id. However, unless the record shows a written agreement by the parties extending the time to serve the expert report, the 120-day statutory deadline controls. See Olveda v. Sepulveda, 141 S.W.3d 679, 683-84 (Tex.App.-San Antonio 2004, pet. denied); Finley v. Steenkamp, 19 S.W.3d 533, 539-40 (Tex.App.-Fort Worth 2000, no pet.). If the expert report is not timely served, the trial court must dismiss the health care liability claim with prejudice. Tex. Civ. Prac. Rem. Code § 74.351 (b)(2); see Lookshin v. Feldman, 127 S.W.3d 100, 105 (Tex.App.-Houston [1st Dist.] 2003, pet. denied) (applying former statute).
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 physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Tex. Civ. Prac. Rem. Code Ann. § 74.351(r)(6) (Vernon Supp. 2005). The expert report is a "threshold" requirement to pursuing a health care liability claim. Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (discussing former statute). In enacting this requirement, the Legislature decided discovery should not proceed until at least one expert examined the case and opined as to the applicable standard of care, that it was breached, and that there was a causal relationship between the failure to meet the standard of care and the injury, harm, or damages claimed. Id. Until a claimant has served the expert report and curriculum vitae required by § 74.351(a), most forms of discovery in a health care liability case are stayed. Tex. Civ. Prac. Rem. Code Ann. § 74.351(s), (u) (Vernon Supp. 2005). Thus, the expert report required by § 74.351 is separate from the designation of experts contemplated under the discovery rules. See Tex. R. Civ. P. 195.2 (establishing deadlines for designating experts unless otherwise ordered by the trial court).
Record Shows Expert Report Untimely Served
In the proceedings below, Escobar claimed she served the § 74.351(a) expert report on Rugama on July 29, 2005, and that such service was timely by virtue of the docket control order. Thus, the timeliness of the expert report hinges on whether the docket control order extended Escobar's time to file the expert report.
Here, the docket control order schedules pre-trial conferences, jury selection, and trial, and coordinates these settings with key litigation deadlines, such as amending pleadings and completing discovery. The order bears the signature of counsel for both parties and is signed by the trial court judge. The order does not expressly mention the § 74.351(a) expert report, or any other report for that matter. The portion of the order relied on by Escobar simply provides:
3. Designation of Experts:
(a) Plaintiff(s) 07-29-05 (At Latest 90 days after suit is filed)
(b) Defendant(s) 08-26-05 (At Latest 45 days after Plaintiff's Experts are deposed)
(c) Dauber[t]/Robinson Hearings — 09-16-05 (60 days before Pre-Trial Conference)
Viewed in context, the July 29, 2005 deadline refers to Escobar's deadline for designating expert witnesses expected to testify at trial. Nothing in the order either directly or by implication suggests that the parties had a written agreement to extend the deadline for serving the § 74.351(a) expert report. See Finley, 19 S.W.3d at 539-40 (scheduling order did not extend the time for filing expert report under former statute when it was signed after the expert report deadline had passed and nothing in the order implied it altered the date for serving the expert report under the former statute). With no written agreement by the parties to extend the time for filing expert reports, Escobar's expert report was untimely. See Tex. Civ. Prac. Rem. Code § 74.351 (a) (Vernon 2005); accord Tesch v. Stroud, 28 S.W.3d 782, 789 (Tex.App.-Corpus Christi 2000, pet. denied) (trial court did not abuse its discretion in dismissing case when proposed scheduling order was not signed by counsel and not filed with the court, and therefore, did not extend the time for filing expert report under former statute).
In a letter to counsel, the trial court explained its reasons for denying the motion to dismiss. The trial court found the parties did not have a written agreement to extend the expert report deadline, but concluded Rugama failed to show other discovery materials did not satisfy the expert report requirement. A letter explaining a trial court's ruling is not part of the trial court's order and an appellate court usually does not consider it. See RRR Farms, Ltd. v. American Horse Protection Ass'n, Inc., 957 S.W.2d 121, 126 (Tex.App.-Houston [14th Dist.] 1997, pet. denied) (declining to consider trial court's letter as giving reasons for its ruling); but see Kendrick, 171 S.W.3d at 702 (addressing reasoning in letter ruling that indicated it was provided for appellate purposes). Because we are remanding this cause for further proceedings, we briefly address the reasoning in the trial court's letter.
The record before the trial court showed Escobar served the expert report on July 29, 2005. Escobar's sole argument was she "provided the requisite reports" on July 29, 2005; she did not argue she served any expert report on an earlier date. Based on this record, it was error for the trial court to conclude the expert report requirement may have been fulfilled in a timely fashion. Additionally, the trial court's reliance on § 74.351(i) was misplaced. Subsection 74.351(i) does not provide a "defense" to serving the expert report in a timely manner; it simply clarifies that a claimant may use multiple expert reports to address the various liability and causation issues that may arise in a particular action. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(i) (Vernon Supp. 2005).
The record includes a document entitled "Plaintiff's Designation of Experts and Production of Reports" with a certificate of service indicating it was forwarded to Rugama's counsel on July 29, 2005. Attached to this document are a letter from Dr. J. Keith Rose, M.D., and his curriculum vitae.
Conclusion
Escobar's failure to serve an expert report in a timely manner left the trial court with no discretion but to dismiss her claims with prejudice. Id. § 74.351 (b)(2); see Lookshin, 127 S.W.3d at 105. We reverse the trial court's order denying the motion to dismiss, and remand for entry of a judgment dismissing Escobar's claims and awarding reasonable attorney's fees and court costs to Rugama. Tex. Civ. Prac. Rem. Code Ann. § 74.351(b) (Vernon 2005) (setting forth contents of order to be entered by trial court if expert report is untimely).