Opinion
NO. 03-14-00521-CV
02-04-2016
CHRISTUS Santa Rosa Health System d/b/a CHRISTUS Santa Rosa Hospital-New Braunfels, Appellant v. Leslie Baird, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 274TH JUDICIAL DISTRICT
NO. C-2013-0566C, HONORABLE DIB WALDRIP, JUDGE PRESIDINGMEMORANDUM OPINION
In this medical malpractice suit, CHRISTUS Santa Rosa Health System d/b/a CHRISTUS Santa Rosa Hospital-New Braunfels (the Hospital) brings this interlocutory appeal from the trial court's order denying the Hospital's motion to reconsider its objections to appellee Leslie Baird's experts' reports and its motion to dismiss. See Tex. Civ. Prac. & Rem. Code §§ 51.014(a)(9) (authorizing interlocutory appeal from order denying relief sought under section 74.351(b) of Texas Medical Liability Act (TMLA)), 74.351(b) (generally requiring dismissal of health care liability claim on motion of affected physician or health care provider when claimant fails to comply with threshold expert report requirement). Because we conclude that the trial court did not abuse its discretion, we affirm the trial court's order.
BACKGROUND
Baird had surgery at the Hospital on March 5, 2012, to remove the left lobe of her thyroid gland. The surgeon Gerald Marcus Franklin, M.D., did not remove the left lobe of her thyroid gland, but removed her thymus gland. Baird had a subsequent surgery at a different hospital to remove the left lobe of her thyroid gland.
Baird filed suit in May 2013 against Dr. Franklin and his professional association asserting health care liability claims arising from the surgery. See id. § 74.001(a)(13) (defining "health care liability claim"). Baird alleged that Dr. Franklin was negligent by failing to remove her thyroid gland and by removing her thymus gland when it was medically unnecessary to do so. Contemporaneous with filing and serving her petition, Baird served Dr. Franklin and the association with an expert report and the expert's curriculum vitae. See id. § 74.351(a) (requiring claimant asserting health care liability claims as threshold matter to serve expert report with curriculum vitae "for each physician and health care provider against whom a liability claim is asserted").
Section 74.351(r)(6) of the Texas Medical Liability Act (TMLA) defines an expert report to mean:
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 § 74.351(r)(6). Dr. Franklin and the professional association have not challenged Baird's compliance with the expert report requirement and are not parties to this appeal.
Dr. Franklin answered in May 2013, filed a motion to designate the Hospital as a responsible third party in September 2013, and filed an amended motion to designate the Hospital as a responsible third party in December 2013. Dr. Franklin denied that he was negligent and asserted that the Hospital was responsible for Baird having to undergo the subsequent surgery because the Hospital's "frozen section equipment known as a cryostat" was not available during Baird's surgery, the Hospital did not have a backup cryostat, and the Hospital failed to inform Dr. Franklin that the cryostat would not be available until after the surgery had begun.
Baird amended her petition in January 2014 to include the Hospital as a defendant and filed notice and served Dr. Franklin's experts' reports on the Hospital as her own. In her amended petition, Baird asserted that the Hospital was negligent based on its failure to notify Dr. Franklin that the cryostat "was not available for him to monitor tissue removal until after the procedure began." Baird's only expert reports as to the Hospital were the reports that Dr. Franklin previously had produced in discovery and filed with the trial court with his designation of expert witnesses.
Baird also sued CHRISTUS Health, a separate entity, but she nonsuited her claims against that entity prior to this interlocutory appeal.
Although the record does not include Dr. Franklin's designation of expert witnesses, Baird does not dispute that Dr. Franklin produced and filed the expert reports at issue. See Tex. R. App. P. 38.1(g) (accepting in civil cases "as true the facts stated unless another party contradicts them").
The Hospital answered and filed objections to the expert reports in February 2014. It urged that Baird's proffered documents were insufficient as a matter of law because Dr. Franklin originally filed the documents as part of his discovery responses and, if Baird was allowed to use the documents, she would render the reports inadmissible pursuant to section 74.351(k) of the TMLA and have the "unilateral option to use these documents." See id. § 74.351(k) (providing that expert reports served under section 74.351 are not admissible in evidence, shall not be used at deposition, trial, or other proceeding, and shall not be referred to by any party during course of action for any purpose), (t) ("If an expert report is used by the claimant for any purpose other than to meet the service requirements of Subsection (a), the restrictions imposed by Subsection (k) on use of the expert report by any party are waived."). The Hospital contended that the legislature did not intend the absurd result of allowing a claimant to cloak previously discovered expert reports with the restrictions in section 74.351(k) simply by designating the reports as her own.
Baird filed a response to the Hospital's objections to her expert reports, and the Hospital filed a reply to Baird's response. After a hearing, the trial court overruled the Hospital's objections by order dated May 20, 2014. In its order, the trial court found:
Although Tex. Civ. Prac. & Rem. Code § 74.351(k) restricts other uses of the "expert report," it does not however restrict any other proper use of the "expert's opinion." Consequently, the Defendant's concern giving rise to the objection that Plaintiff, and only Plaintiff, would control the expert report in question is of no consequence.
The Hospital filed a motion to reconsider its objections to Baird's experts' reports and motion to dismiss on June 5, 2014. See id. § 74.351(b) (requiring trial court to dismiss claims on motion of affected health care provider if expert report not served within 120 day time period). In addition to re-urging the objections raised in its earlier motion, the Hospital sought to have Baird's claims dismissed. The Hospital also argued that Baird's expert reports were insufficient as a matter of law because they contradicted her pleaded claims against Dr. Franklin. Focusing on alleged opinions in the reports that Dr. Franklin was not negligent, the Hospital argued that the reports "create more confusion than clarity with regard to [Baird]'s claims" and that "the inconsistency between her claims and these reports do not demonstrate that her claims have merit or provide adequate notice regarding her claims."
Baird filed a response to the Hospital's motion to reconsider and to dismiss, asserting among her arguments that parties are allowed to make alternative claims for relief on inconsistent grounds. Baird also asserted that the Hospital's arguments under section 74.351(k) of the TMLA were moot because she designated the experts as witnesses. See id. § 74.351(k) (restricting use of expert reports), (t) (waiving restrictions on use of expert reports when claimant uses report for "any purpose other than" to comply with expert report requirement). The Hospital filed a reply to Baird's response, asserting among its arguments that the deadline for Baird to file an adequate expert report expired on June 17, 2014, 120 days after the Hospital filed its answer. See id. § 74.351(a). After a hearing, the trial court denied the Hospital's motion to reconsider and to dismiss by order dated August 19, 2014. The Hospital filed its notice of appeal from that order on August 21, 2014.
ANALYSIS
Timeliness of Appeal
At the outset, we address Baird's argument that this Court does not have jurisdiction over this interlocutory appeal because the Hospital failed to timely appeal the trial court's denial of its motion to dismiss. The Hospital filed its notice of appeal on August 21, 2014, appealing from the trial court's order dated August 19, 2014, that denied the Hospital's motion to reconsider its objections to Baird's experts' reports and motion to dismiss. Baird argues that the Hospital should have appealed the order signed by the trial court on May 20, 2014, and, thus, that this interlocutory appeal—filed on August 21, 2014—was not timely. See Tex. R. App. P. 26.1(b) (requiring notice of interlocutory appeal to be filed "within 20 days after the judgment or order is signed").
The trial court, however, did not rule on the Hospital's motion to dismiss in its May 2014 order but on the Hospital's objections to Baird's experts' reports. See Tex. Civ. Prac. & Rem. Code § 74.351(a) (requiring health care provider "whose conduct is implicated in a report" to file objections to report within 21 days after date report served or answer is filed). After filing its answer to Baird's claims in February 2014, the Hospital properly filed objections to the experts' reports—and not a motion to dismiss—a few days later because the 120-day window was still open for Baird to satisfy the expert report requirement. See id. (requiring claimant to file expert report within 120 days of "date each defendant's original answer is filed"); Lewis v. Funderburk, 253 S.W.3d 204, 207 (Tex. 2008) (noting that challenges to expert reports "cannot seek dismissal or fees until the 120-day window has closed" and that "[o]nly when that window has closed and no reports have been filed can a defendant move for dismissal and fees under subpart (b)" of section 74.351); Christus Santa Rosa Health Care Corp. v. Vasquez, 427 S.W.3d 451, 454-55 (Tex. App.—San Antonio 2014, no pet.) (concluding that trial court was authorized to rule on objections to expert report but not to rule on motion to dismiss during 120-day window of section 74.351(a)).
It was not until the order dated August 19, 2014, that the trial court denied the Hospital's motion to dismiss; at that point, the 120-day window had closed; and the Hospital filed its notice of appeal two days later. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(9) (authorizing interlocutory appeal when a trial court "denies all or part of the relief sought by a motion under Section 74.351(b)"); Lewis, 253 S.W.3d at 207; CHCA Mainland, L.P. v. Burkhalter, 227 S.W.3d 221, 225-26 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (concluding that interlocutory appeal was timely when taken within 20 days of order denying motion to dismiss even though trial court overruled objections to report in earlier order); cf. Tex. Civ. Prac. & Rem. Code §§ 51.014(a)(10) (subjecting order granting relief under section 74.351(l) to interlocutory appeal), 74.351(l) (requiring court to grant motion challenging adequacy of 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"); Central Tex. Spine Inst., LLP v. Brinkley, 344 S.W.3d 537, 542 (Tex. App.— Austin 2011, pet. denied) (concluding that order denying motion to reconsider denial of motion to dismiss was not appealable order); Academy of Oriental Med., L.L.C. v. Andra, 173 S.W.3d 184, 186-87 (Tex. App.—Austin 2005, no pet.) (concluding that order denying motion was not subject to interlocutory appeal that was "more accurately characterized as motion for relief under section 74.351(l)").
Thus we conclude that the Hospital timely filed its notice of appeal and that we have jurisdiction over the Hospital's appeal. We turn to the Hospital's issues.
Did the trial court abuse its discretion in denying the Hospital's motion to dismiss?
In two issues, the Hospital challenges the trial court's denial of its motion to dismiss brought under section 74.351(b) of the TMLA. See Tex. Civ. Prac. & Rem. Code § 74.351(b). We review a trial court's denial of a motion to dismiss brought under this section for an abuse of discretion. TTHR Ltd. P'ship v. Moreno, 401 S.W.3d 41, 44 (Tex. 2013); Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766 (Tex. 2011); American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). "Under that standard, appellate courts defer to the trial court's factual determinations if they are supported by evidence, but review its legal determinations de novo." Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015). "A trial court abuses its discretion if it rules without reference to guiding rules and principles." Id.
"Contradictory Opinions" in Expert Reports
In its first issue, the Hospital argues that the trial court abused its discretion by concluding that Baird's expert reports were legally sufficient because the reports contain "contradictory opinions" regarding Dr. Franklin's negligence. The Hospital argues that the inconsistencies between the reports and Baird's pleaded claims against Dr. Franklin render the reports insufficient as a matter of law because they do not demonstrate that Baird's claims have merit and "do not inform the Hospital how it contributed to [Baird]'s simple wrong surgery claim." See Tex. Civ. Prac. & Rem. Code § 74.351(r)(6) (defining "expert report"); Certified EMS, Inc. v. Potts, 392 S.W.3d 625, 630 (Tex. 2013) (noting that two functions of expert report are to "inform the defendant of the specific conduct the plaintiff has called into question" and "provide a basis for the trial court to conclude that the claims have merit" (quoting Palacios, 46 S.W.3d at 879)); Scoresby v. Santillan, 346 S.W.3d 546, 549 (Tex. 2011) (holding that "document qualifies as an expert report if it contains a statement of opinion by an individual with expertise indicating that the claim asserted by the plaintiff against the defendant has merit").
A trial court should not grant a motion challenging the adequacy of an expert report unless "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)." Tex. Civ. Prac. & Rem. Code § 74.351(l). "A valid expert report has three elements: it must fairly summarize the applicable standard of care; it must explain how a physician or health care provider failed to meet that standard; and it must establish the causal relationship between the failure and the harm alleged." Potts, 392 S.W.3d at 630 (citing Tex. Civ. Prac. & Rem. Code § 74.351(r)(6)). "A report that satisfies these requirements, even if as to one theory only, entitles the claimant to proceed with a suit against the physician or health care provider." Id.; see also Scoresby, 346 S.W.3d at 554 ("The purpose of the expert report requirement is to deter frivolous claims, not to dispose of claims regardless of their merits.").
In the challenged reports, the experts opine about the applicable standard of care for the Hospital, how the Hospital failed to meet the standard, and the causal relationship between the Hospital's failure to meet the standard of care and the harm alleged by Baird. See Potts, 392 S.W.3d at 630. For example, one of the experts opined: (i) the standard of care required the Hospital to have a back-up cryostat and to alert Dr. Franklin that the Hospital's cryostat was offline before Baird's surgery was started; (ii) the Hospital's failure to have a back-up and to inform Dr. Franklin that the cryostat was offline was below the standard of care; (iii) if a back-up cryostat had been available, Dr. Franklin "would then have known the tissue removed was thymus and had the opportunity to remove additional tissue"; and (iv) had the Hospital alerted Dr. Franklin that the cryostat was offline prior to starting the surgery, the surgery could have been rescheduled.
The reports inform the Hospital of "the specific conduct" that Baird alleges was negligent and provide "a basis for the trial court to conclude that the claims have merit." See Potts, 392 S.W.3d at 630 (quoting Palacios, 46 S.W.3d at 879). Guided by the Texas Supreme Court's directive in Potts, we conclude that Baird satisfied the expert report requirement to proceed with her suit against the Hospital. See id.; see also Moreno, 401 S.W.3d at 43-44 (concluding that case against hospital could proceed because plaintiff satisfied expert report requirement as to one of liability claims against the hospital); Christus Spohn Health Sys. Corp. v. Lopez, No. 13-13-00165-CV, 2014 WL 3542094, at *7 (Tex. App.—Corpus Christi July 17, 2014, no pet.) (mem. op.) (overruling argument based on conflict between expert report and another expert report addressing different defendant, noting that defendant "cites no authority, and we find none, requiring a trial court to review the expert reports concerning separate defendants requiring different standards of care together in order to determine whether there are any inconsistencies," and concluding that trial court was not required to "read these separate reports [regarding separate defendants] together to determine which doctor is correct or incorrect").
To support its position, the Hospital relies on the opinion in Gray v. CHCA Bayshore, L.P., 189 S.W.3d 855, 856 (Tex. App.—Houston [1st Dist.] 2006, no pet.), in which a trial court's dismissal of a plaintiff's claims based on an inadequate expert report was upheld. We do not find the factual posture of that case analogous here. In Gray, the plaintiff filed suit against a medical center and doctor involved in her surgery at the medical center, but she filed one expert report as to both defendants. Id. at 856-57. The challenged expert report stated, "without explanation, that a single standard of care applied to both" the medical center and the doctor. Id. at 859. In concluding that the trial court did not abuse its discretion by dismissing the plaintiff's claims, the appellate court noted that "such generic statements without more, can reasonably be deemed conclusory" and that conclusory statements do not comply with section 74.351. Id. The appellate court "further note[d] that the report appears to be inconsistent with respect to the relationship among the standard of care, breach, and the cause of [the plaintiff]'s injury." Id. at 860. In contrast to the expert report at issue in Gray, Baird presented separate reports as to Dr. Franklin and the Hospital, and the reports directed at the Hospital specifically address the Hospital's allegedly negligent conduct. See Tex. R. Civ. P. 48 (allowing party to state separate claims "regardless of consistency"); Van Ness, 461 S.W.3d at 144 (concluding that it was incumbent on trial court "to resolve any inconsistencies in [expert report]" to decide whether report demonstrated good faith effort to show claims have merit); Lee Lewis Const., Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex. 2001) (noting that there may be more than one act or omission that is the proximate cause of an injury).
For these reasons, we overrule the Hospital's first issue.
"Unilateral Control" Over Expert Reports
In its second issue, the Hospital argues that the trial court abused its discretion by allowing Baird "to exercise unilateral control over reports already designated as evidence by co-defendant" Dr. Franklin. The Hospital urges that the legislature could not have intended for a party to have the option to render an opposing party's evidence inadmissible while still retaining the sole discretion to use it herself.
On the record before us, the Hospital's issue is not ripe for our review. See Camarena v. Texas Emp't Comm'n, 754 S.W.2d 149, 151 (Tex. 1988) (noting that "District courts, under our Constitution, do not give advice or decide cases upon speculative, hypothetical or contingent situations" and that it was "fundamental that a court has no jurisdiction to render an advisory opinion on a controversy that is not yet ripe"). As the trial court recognized in its May 2014 order overruling the Hospital's objections, the Hospital's "concern giving rise to the objection that Plaintiff, and only Plaintiff, would control the expert report in question is of no consequence." On this basis, we decline to further address the Hospital's second issue.
In resolving this issue, we note that whether a claimant may use another party's expert report that was produced in discovery responses to satisfy the requirements of section 74.351 appears to be an issue of first impression. The issue, however, is not properly before us and, therefore, we expressly do not decide whether a claimant may use another party's expert report in this way to satisfy section 74.351(a). See Tex. Civ. Prac. & Rem. Code § 74.351(a). --------
CONCLUSION
Because we conclude that the trial court did not abuse its discretion by denying the Hospital's motion to dismiss, we affirm the trial court's order.
/s/_________
Melissa Goodwin, Justice Before Chief Justice Rose, Justices Goodwin and Bourland Affirmed Filed: February 4, 2016