Opinion
01-19-00618-CV
06-15-2021
GARY LYNN FOMBY, Appellant v. MANORCARE - SHARPVIEW OF HOUSTON, TEXAS, LLC, Appellee
On Appeal from the 133rd District Court Harris County, Texas Trial Court Case No. 2016-19064
Panel consists of Chief Justice Radack and Justices Goodman and Farris.
MEMORANDUM OPINION
SHERRY RADACK, CHIEF JUSTICE
This is the second appeal in this health-care-liability case. In the trial court, appellant, Gary Lynn Fomby, brought negligence claims against Dr. Jaime Clavijo and appellee, ManorCare - Sharpview of Houston, Texas, LLC ("ManorCare"). Clavijo and ManorCare moved to dismiss Fomby's claims on the ground that he failed to file an expert report in accordance with the substantive requisites of Texas Civil Practice and Remedies Code Chapter 74. The trial court denied the motions, and Clavijo and ManorCare appealed. On appeal, we affirmed the trial court's order as to Clavijo. We reversed the trial court's order as to ManorCare and remanded for entry of an order of dismissal and an assessment of attorney's fees and costs.On remand, the trial court entered an order dismissing Fomby's claims against ManorCare with prejudice and awarding fees and costs. In this appeal, Fomby, proceeding pro se, challenges the trial court's order dismissing his claims against ManorCare. In his sole issue, he argues that Chapter 74 is unconstitutional, facially and as applied, because the expert-report requirement "represent[s] a substantial obstacle and undue burden" on a litigant's access to the courts.
Fomby's brief purports to bring constitutional challenges based on other doctrines, including "freedom of speech" and the "separation of powers." Fomby did not make these arguments in his response to ManorCare's motion to dismiss, so they are waived. See Pro Plus, Inc. v. Crosstex Energy Servs., L.P., 388 S.W.3d 689, 707 n.6 (Tex. App.-Houston [1st Dist.] 2012), aff'd, 430 S.W.3d 384 (Tex. 2014). Furthermore, Fomby's brief does not contain "appropriate citations to authorities and to the record" on these issues. See Tex. R. App. P. 38.1(i).
See Clavijo and Manor Care - Sharpview of Hous., Tex., LLC v. Fomby, No. 01-17-00120-CV, 2018 WL 2976116, *16 (Tex. App.-Houston [1st Dist.] June 14, 2018, pet. denied) (mem. op.).
See id. (citing Tex. Civ. Prac. & Rem. Code § 74.351(b)).
Clavijo is not a party to this appeal.
We affirm.
Background
Because our previous opinion addresses the underlying facts, only a brief summary of the background and the procedural history relevant to the issues currently before us is presented. See Clavijo and Manor Care - Sharpview of Houston, Texas, LLC v. Fomby, No. 01-17-00120-CV, 2018 WL 2976116, at *1-4 (Tex. App.-Houston [1st Dist.] June 14, 2018, pet. denied) (mem. op.).
In December 2013, Fomby underwent cardiac surgery. During the procedure, a vein was harvested from his right leg, resulting in a 20-inch incision, extending from above his knee to midway down his lower leg. Id. at *1. Subsequently, he was transferred to ManorCare for post-operative care and physical therapy. Id. Dr. Clavijo was his treating physician. Id.
In the trial court, Fomby alleged that, the day after surgery, ManorCare physical therapists, acting on Dr. Clavijo's orders, directed him to ride an exercise bicycle. Id. While riding the bicycle, his surgical leg wound ruptured. Id. Subsequently, his wound became infected, and he developed severe diarrhea from antibiotics prescribed to treat the infection. Id. at *2. He alleged that, during his stay at ManorCare, nursing staff failed to respond to his repeated requests for assistance with walking to the restroom. Id. During his multiple attempts to walk to the restroom unassisted, he lost control of his bowels and fell, soiling the dressing on his surgical wound. Id. In his first fall, he injured his surgical wound and right foot. Id. He alleged that, after his second fall, nursing staff did not change the soiled dressing on his surgical wound until the wound care nurse arrived for her shift an hour later. Id. After he was transported back to the hospital for treatment of an infection in his surgical wound, he was diagnosed with a Methicillin-resistant- Staphylococcus-aureus infection, underwent debridement of the wound and placement of a wound vacuum, and, later, amputation of his "big toe." Id.
Fomby sued Dr. Clavijo and ManorCare for negligence, alleging that their individual breaches of the standard of care in treating him had caused him to undergo additional surgery, lengthened his stay in nursing homes, and caused him physical injury, medical expenses, pain and suffering, lost wages, physical impairment, and mental anguish. Id. To support his claims, Fomby filed and served upon Clavijo and ManorCare a medical expert report authored by Sumita Chowdhury, M.D. Id. After the trial court sustained Dr. Clavijo's and ManorCare's objections to the sufficiency of the report and gave Fomby an opportunity to cure the deficiencies, Chowdhury filed a supplemental report. Id.
Dr. Clavijo then moved to dismiss Fomby's claims against him on the grounds that Dr. Chowdhury's report, as supplemented, did not reflect that she was qualified and failed to adequately address causation. Id. at *4. ManorCare moved to dismiss Fomby's claims against it on the ground that Chowdhury's report failed to adequately address the standard of care and breach. Id. The trial court denied Clavijo's and ManorCare's motions. Id. at *5.
On appeal, we affirmed the trial court's order denying Dr. Clavijo's motion to dismiss Fomby's claims. Id. at *16. We reversed the trial court's order as to ManorCare because Dr. Chowdhury's report, which did not specifically articulate what ManorCare's staff should have done differently, did not constitute a statement of a standard of care. Id. at *15-16. Further, the report did not state or reflect that Chowdhury had considered any medical records in formulating her opinion that ManorCare's staff had "carelessly" cleaned Fomby's wound. Id. at *15. Rather, Chowdhury affirmatively stated that she had formulated her opinions based on Fomby's beliefs and representations. Id.
See id. at *14 n.12 (citing Loaisiga v. Cerda, 379 S.W.3d 248, 261 (Tex. 2012) ("If an expert could formulate an adequate expert report by merely reviewing the plaintiff's pleadings and assuming them to be true, then artful pleading could neutralize the Legislature's requirement that expert reports demonstrate the plaintiff's claims have merit. . . ."); Hous. Methodist Hosp. v. Nguyen, 470 S.W.3d 127, 131 (Tex. App.-Houston [14th Dist.] 2015, pet. denied) (holding that, in formulating opinions, "medical expert must consider, at a minimum, medical records that are relevant to those opinions, along with the pleadings")).
We held that the trial court erred in denying ManorCare's motion to dismiss Fomby's health care liability claims against it. Id. at *16. We reversed the trial court's order and remanded the case for further proceedings consistent with the opinion. Id. (citing Tex. Civ. Prac. & Rem. Code § 74.351(b)). Subsequently, this Court denied Fomby's motion for rehearing, and the Texas Supreme Court denied Fomby's petition for review.
See Tex. Civ. Prac. & Rem. Code § 74.351(b) (requiring that trial court enter order dismissing claim with prejudice and awarding reasonable attorney's fees and costs to affected health care provider).
On remand, the trial court held a hearing on attorney's fees. During the hearing, Fomby, proceeding pro se, generally asserted that Civil Practice and Remedies Code Chapter 74 is unconstitutional. He asserted that an expert report should not be required and that "there [are] freedom of speech issues involved" and "separation of power issues involved." The trial court discussed the issue with Fomby but did not rule on the matter. The trial court then entered a final order dismissing Fomby's claims against ManorCare with prejudice and assessing attorney's fees and costs against Fomby.
Constitutional Challenge
In his sole issue, Fomby argues that Civil Practice and Remedies Code Chapter 74 is unconstitutional, facially and as applied, because the expert-report requirement "represent[s] a substantial obstacle and undue burden" on a litigant's access to the courts. He asserts that the dismissal of his claims against ManorCare constitutes a denial of his access to the courts.
A. Jurisdiction and Scope of Review
As a threshold matter, we first consider this Court's jurisdiction to review the trial court's judgment after remand. In addition, we consider the scope of the issues remanded to the trial court and thus the scope of our review.
This Court has jurisdiction, consistent with Texas Government Code section 22.220(a), to review a trial court's final judgment after remand. See Phillips v. Bramlett, 407 S.W.3d 229, 237 (Tex. 2013). "[T]o the extent the mandate vests the trial court with [authority], albeit limited, to determine issues on remand, the parties retain their right to appeal the trial court's subsequent determinations through the usual and customary process of appeal." Cessna Aircraft Co. v. Aircraft Network, LLC, 345 S.W.3d 139, 144 (Tex. App.-Dallas 2011, no pet.).
Generally, when an appellate court reverses and remands a case for further proceedings, and the mandate is not limited by special instructions, the effect is to remand the case to the lower court on all issues of fact, and the case is reopened in its entirety. See Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986); In re Henry, 388 S.W.3d 719, 727 (Tex. App.-Houston [1st Dist.] 2012, pet. denied). Issues of law are governed by the "law of the case" doctrine. In re Henry, 388 S.W.3d at 727. Courts have held that a remand "for further proceedings consistent with this opinion," without more, constitutes a general remand. Simulis, L.L.C. v. Gen. Elec. Capital Corp., 392 S.W.3d 729, 734-35 (Tex. App.-Houston [14th Dist.] 2011, pet. denied).
When an appellate court remands a case and limits a subsequent trial to a particular issue, the trial court may only determine that particular issue. Hudson, 711 S.W.2d at 630. On remand, "the trial court has no authority to take any action that is inconsistent with or beyond the scope of that which is necessary to give full effect to the appellate court's judgment and mandate." Phillips, 407 S.W.3d at 234. "An appellate court's judgment is final not only in reference to the matters actually litigated, but as to all other matters that the parties might have litigated and decided in the case." Medina v. Benkiser, 317 S.W.3d 296, 299 (Tex. App.-Houston [1st Dist.] 2009, no pet.).
The scope of an appellate court's remand is determined by referring to both its mandate and its opinion. See Hudson, 711 S.W.2d at 630; In re Henry, 388 S.W.3d at 727. The appellate court's opinion is instructive in interpreting any limitations placed on the scope of the remand. Freightliner Corp. v. Motor Vehicle Bd. of Tex. Dep't of Transp., 255 S.W.3d 356, 363 (Tex. App.-Austin 2008, pet. denied).
B. Analysis
This Court's mandate in the previous appeal states that there was reversible error in the portion of the trial court's order denying ManorCare's motion to dismiss the claims against it. Accordingly, this Court reversed that portion of the trial court's order and remanded that portion of the case to the trial court for further proceedings. This Court's opinion states that, as provided by Civil Practice and Remedies Code section 74.351, a health care liability claimant must timely provide each defendant health care provider with an expert report. See Fomby, 2018 WL 2976116, at *5 (citing Tex. Civ. Prac. & Rem. Code § 74.351(a)). And, if a defendant health care provider files a motion to dismiss, challenging the adequacy of the claimant's expert report, the trial court "must grant" the motion if it appears that the report does not represent an objective good faith effort to comply with the definition of an expert report or is not sufficiently specific to provide a basis for the trial court to conclude that the claims have merit. See id. (citing Tex. Civ. Prac. & Rem. Code § 74.351(1)). This Court then held that Fomby's expert report was inadequate as to ManorCare and thus that the trial court erred in denying ManorCare's motion to dismiss Fomby's health care liability claims against it. Id. at *16. We reversed the trial court's interlocutory order and remanded the case for "further proceedings consistent with this opinion," citing Civil Practice and Remedies Code section 74.351(b). Id. (citing Tex. Civ. Prac. & Rem. Code § 74.351(b)).
Section 74.351(b) provides, with exception inapplicable here, that if an expert report has not been served in accordance with the statute, the trial court, on the motion of the affected health care provider, "shall . . . 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.Tex. Civ. Prac. & Rem. Code § 74.351(b). Accordingly, as directed, the trial court entered an order dismissing Fomby's claims against ManorCare with prejudice and assessing attorney's fees and costs against him. See id.
Again, although courts have concluded that a remand "for further proceedings consistent with this opinion," without more, constitutes a general remand, see Simulis, 392 S.W.3d at 734, this Court's opinion reflects that its remand was limited to the statutorily required entry of an order of dismissal and assessment of attorney's fees and costs. The trial court's authority was thus limited to complying with that instruction, and it could not re-litigate issues raised in the prior trial. See Phillips, 407 S.W.3d at 234. Our judgment was final "not only in reference to the matters actually litigated, but as to all other matters that the parties might have litigated and decided in the case." Medina, 317 S.W.3d at 299 (emphasis added).
Fomby asserts on appeal that his challenge to the constitutionality of Chapter 74 has not been addressed and that he has been denied access to the courts. He re-filed in the instant appeal the clerk's record from his previous appeal. The record shows, however, that Fomby had an opportunity to litigate his constitutional challenge and have it decided, but did not. See id.
As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion, and that the trial court ruled on the request or that it refused to rule and that the complaining party objected. Tex.R.App.P. 33.1(a)(1). This rule also applies to constitutional claims. See In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (noting that United States Supreme Court and Texas Supreme Court have held that constitutional issues must be preserved and that party asserting such issues must present them to trial court by timely request, motion, or objection and obtain ruling); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 222 (Tex. 2002) (holding that "litigant must raise an open-courts challenge in the trial court" to preserve it for appellate review); Taylor v. Corr. Med. Servs., Inc., No. 01-11-00836-CV, 2013 WL 2246052, at *3 (Tex. App.-Houston [1st Dist.] May 21, 2013, no pet.) (mem. op.) (holding complaint that expert-report requirement in section 74.351 was unconstitutional, facially and as applied, in that it violated due-process and open-courts provisions of Texas Constitution, was not preserved).
The record shows that Fomby, in his December 15, 2016 response to ManorCare's motion to dismiss his claims, asked the trial court to declare, "Chapter 74 unconstitutional under the Federal and State Constitutions." He argued, in part, that Chapter 74 is unconstitutional, on its face and as applied, because "various provisions of Chapter 74 place a substantial obstacle" in his "path," and the "path[s] of citizens," and "constitute[] an undue burden" on court access. On January 6, 2017, Fomby filed a notice, stating that he asked the trial court to "defer any ruling" on "the expert witness report and/or the constitutionality of Chapter 74" until he was discharged from the hospital and had an opportunity to "submit responsive pleadings." Fomby noted that he anticipated that such "responsive pleadings may . . . be submitted by the end of [the] next week, but may take longer depending on [his] health condition at date of discharge." Our record does not show that Fomby ever submitted such pleadings or revisited this matter.
ManorCare then sent a letter asking the trial court to rule on ManorCare's motion, and the trial court ruled on the motion. The record shows that the trial court found that ManorCare did not meet its burden to show that Fomby's expert report was inadequate. Our record does not reflect that the trial court, in ruling on ManorCare's motion, considered Fomby's various constitutional issues. Thus, Fomby's constitutional issues were not preserved. See Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) ("The burden is on the appellant to see that a sufficient record is presented to show error requiring reversal."); Huston v. United Parcel Serv., Inc., 434 S.W.3d 630, 636 (Tex. App.-Houston [1st Dist.] 2014, pet. denied); see also Tex. R. App. P. 33.1(a)(1); In re L.M.I., 119 S.W.3d at 711. And, Fomby cannot now rely on his failure to preserve error before the previous appeal as an opportunity to present the identical issue in the instant appeal. See Cruz v. Schell, Beene & Vaughn, L.L.P., No. 05-01-00565-CV, 2012 WL 3194074, at *4 (Tex. App.-Dallas Aug. 7, 2012, pet. denied) (mem. op.).
Although Fomby raised constitutional issues in his response, he later expressly asked the trial court not to rule on them until he filed further pleadings, which he then never filed. ManorCare then asked the trial court to rule on ManorCare's motion, and the trial court ruled on the motion. The record shows that the trial court found that ManorCare did not meet its burden to show that Fomby's expert report was inadequate. Again, our record does not reflect that the trial court ever considered Fomby's various constitutional issues. Accordingly, ManorCare did not, and was not required to, challenge Fomby's constitutional issues in the first appeal because there was nothing for this Court to review. Notably, after we issued our opinion in the first appeal, Fomby filed a petition for review in the Texas Supreme Court, in which he presented the same unpreserved constitutional issues he now raises. And, the supreme court denied review. With respect to the concerns raised in the concurrence, Fomby's burden as the appellant in this appeal was to bring forth a record showing that the trial court committed error. See Huston v. United Parcel Serv., Inc., 434 S.W.3d 630, 636 (Tex. App.-Houston [1st Dist.] 2014, pet. denied). That is, he was required to show that he timely presented his constitutional issues to the trial court for a ruling and that he obtained a ruling, express or implied, on those matters. See Tex. R. App. P. 33.1; In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003).
We conclude that Fomby's constitutional issues were not preserved in this case. We hold that the trial court did not err in dismissing Fomby's claims against ManorCare, in accordance with this Court's mandate.
Conclusion
We affirm the trial court's final order dismissing Fomby's claims against ManorCare.
Farris, J., concurring.
CONCURRING OPINION
April L. Farris, Justice
The majority holds that pro se appellant Gary Lynn Fomby failed to preserve error in the trial court when he defeated ManorCare's Chapter 74 motion to dismiss his lawsuit. I respectfully disagree. Fomby raised his open-courts and due-process challenges in the trial court, before the court denied ManorCare's motion to dismiss. Fomby's request for a continuance-which was never granted-did not nullify his constitutional arguments.
As such, I proceed to consider the merits of Fomby's open-courts and due-process challenges to Chapter 74's expert-report requirement. Because these challenges fail on the merits, I concur in the judgment.
I. Preservation of Open-Courts and Due-Process Challenges
Fomby preserved his open-courts and due-process challenges by raising them in his response to ManorCare's motion to dismiss.
On November 21, 2016, ManorCare filed its motion to dismiss Fomby's claims based on Fomby's alleged failure to file an expert report that comported with Texas Civil Practice and Remedies Code Section 74.351. In December, Fomby filed a response arguing that he had satisfied Chapter 74's expert-report requirement. In the alternative, he argued that the expert-report requirement is unconstitutional facially and as applied because the requirement "represent[s] an undue burden and substantial obstacle" to a litigant's access to the courts. The trial court denied ManorCare's motion to dismiss on February 6, 2017, without giving reasons. No party requested findings of fact or conclusions of law. ManorCare filed its notice of interlocutory appeal from the denial just ten days later, on February 16, 2017.
Ultimately, a panel of this Court agreed with ManorCare that Fomby's expert report did not constitute a good faith effort to comply with the expert-report requirement in Chapter 74. Accordingly, we reversed the trial court's order denying ManorCare's motion to dismiss and remanded the case for further proceedings. See Clavijo v. Fomby, No. 01-17-00120-CV, 2018 WL 2976116, at *12-16 (Tex. App.-Houston [1st Dist.] June 14, 2018, pet. denied) (mem. op.).
Here, the majority finds that Fomby failed to "preserve error before the previous appeal" because Fomby did not take the "opportunity to litigate" his constitutional open-courts challenges to Chapter 74 before ManorCare took its interlocutory appeal. I disagree. Fomby raised his open-courts and due-process constitutional challenges in his response to ManorCare's Chapter 74 motion to dismiss. As such, he fulfilled his obligation to "raise an open-courts challenge in the trial court." See Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 222 (Tex. 2002).
The majority does not dispute that Fomby raised these constitutional issues in his response. Instead, the majority concludes that Fomby waived his constitutional challenges by later requesting that the trial court defer "any ruling" on "the constitutionality of Chapter 74" until Fomby could be discharged from the hospital. At such time, Fomby proposed to submit additional "responsive pleadings."
We liberally construe pro se pleadings and briefs. J.R. Richard Enters., Inc. v. Niz, No. 01-20-00124-CV, 2020 WL 7391710, at *3 n.2 (Tex. App.-Houston [1st Dist.] Dec. 17, 2020, no pet.) (mem. op.). Even without liberal construction, Fomby's request appears to be a request for a continuance on the consideration of his constitutional challenges, not a request to strike his constitutional arguments from his prior filings. See Continuance, Black's Law Dictionary (11th ed. 2019) (defining "continuance" as an "adjournment or postponement of a trial or other proceeding to a future date"). The trial court never granted Fomby's request for a continuance. Consequently, Fomby's open-courts and due-process challenges were properly before the trial court when the court denied ManorCare's Chapter 74 motion to dismiss.
II. Merits Analysis
Finding that Fomby preserved error in the trial court with respect to his open-courts and due-process challenges, I turn to the merits and concur in the judgment. Fomby has not demonstrated that Chapter 74's expert-report requirement is unconstitutional, either on its face or as applied.
When reviewing the constitutionality of a statute, we begin with a presumption that it is constitutional. Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003); see also Tex. Gov't Code § 311.021(1) ("In enacting a statute, it is presumed that . . . compliance with the constitutions of this state and the United States is intended."). The wisdom or expediency of the law is the Legislature's prerogative, not our own prerogative. Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 520 (Tex. 1995) (quoting Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968)). Fomby bears the burden of proving that the statute fails to meet constitutional requirements. See Walker, 111 S.W.3d at 66.
Fomby has not demonstrated that the law's expert-report requirement violates the Texas Constitution's open courts provision, either facially or as applied. The Texas Constitution states: "All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law." Tex. Const. art. I, § 13. This provision "prohibits the Legislature from making a remedy by due course of law contingent upon an impossible condition." Stockton v. Offenbach, 336 S.W.3d 610, 617-18 (Tex. 2011) (internal quotations omitted). The party alleging an open courts violation must raise a fact issue establishing that he did not have a "reasonable opportunity to be heard." Id. at 618; Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 703 (Tex. 2014) ("Procedurally, the party raising the open courts challenge must raise a fact issue establishing that he did not have a reasonable opportunity to be heard.") (internal quotations omitted).
A claimant bringing an as-applied open-courts challenge to Chapter 74 must show that the expert-report requirement actually prevented him from bringing his claims. See Stockton, 336 S.W.3d at 618-19. To prevail on a facial challenge, a party must show that the statute, by its terms, always operates unconstitutionally. Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 461 (Tex. App.-Austin 2006, no pet.) (citing Garcia, 893 S.W.2d at 518).
Here, Fomby argues that Chapter 74 is unconstitutional, facially and as applied, because the expert-report requirement "represent[s] a substantial obstacle and undue burden" on a litigant's access to the courts. Texas courts have consistently rejected similar challenges. See, e.g., Stockton, 336 S.W.3d at 618-19 (rejecting open-courts challenge); Matthews v. Lenoir, 439 S.W.3d 489, 498-99 (Tex. App.- Houston [1st Dist.] 2014, pet. denied) (rejecting due-process and open-courts challenges); Chalfant v. Brookdale Senior Living Communities, Inc., No. 01-12-00140-CV, 2013 WL 1790226, at *4-5 (Tex. App.-Houston [1st Dist.] Apr. 25, 2013, no pet.) (mem. op.) (rejecting open-courts and due-process challenges); Hightower v. Baylor Univ. Med. Ctr., 348 S.W.3d 512, 521-23 (Tex. App.-Dallas 2011, pet. denied) (rejecting open-courts and separation-of-powers challenges); Wilson-Everett v. Christus St. Joseph, 242 S.W.3d 799, 802-04 (Tex. App.- Houston [14th Dist.] 2007, pet. denied) (rejecting separation-of-powers challenge); Ledesma v. Shashoua, No. 03-05-00454-CV, 2007 WL 2214650, at *9 (Tex. App.- Austin Aug. 3, 2007, pet. denied) (mem. op.) (rejecting due-process and open-courts challenges); Herrera, 212 S.W.3d at 461-62 (rejecting due-process and open-courts challenges).
The same result should follow here. Fomby has not proven that it was impossible to comply with Chapter 74's expert-report requirement. Far from it, our prior opinion confirms compliance was possible. We allowed Fomby's claims against Dr. Clavijo to go forward, holding that Fomby's expert report "presents an objective, good faith effort to comply" with Chapter 74's requirements. Clavijo, 2018 WL 2976116, at *11 (citations omitted). By contrast, we held that Fomby had not satisfied this standard with respect to ManorCare because Fomby's expert had not "considered any of ManorCare's records pertaining to Fomby's informed-consent claim." Id. at *14 (citing Loaisiga v. Cerda, 379 S.W.3d 248, 261 (Tex. 2012), Houston Methodist Hosp. v. Nguyen, 470 S.W.3d 127, 131 (Tex. App.- Houston [14th Dist.] 2015, pet. denied), and Tex. Civ. Prac. & Rem. Code § 74.351).
Furthermore, Fomby's due-process and open-courts challenges are foreclosed by our decision in Chalfant v. Brookdale Senior Living Communities, Inc., which Fomby does not address. See 2013 WL 1790226, at *4. Under Chalfant, the due-process inquiry determines whether the challenged law has a reasonable relation to a proper legislative purpose or is arbitrary or discriminatory. Id. If the law is related to a proper legislative purpose and is not arbitrary or discriminatory, it passes muster under the Due Process Clause. Id. In order to assert a violation of the Open Courts Provision, a litigant must meet two criteria: (1) he must have a cognizable common-law cause of action that is being restricted; and (2) the restriction must be unreasonable or arbitrary when balanced against the purpose and basis of the statute. Id. (citation omitted).
In Chalfant, we held that the expert-report requirement is rationally related to the purpose of the statute-discouraging frivolous malpractice suits. Id. (citations omitted). "Thus, we cannot conclude that the requirement is arbitrary or discriminatory." Id.; Bankhead v. Spence, 314 S.W.3d 464, 468-69 (Tex. App.- Waco 2010, pet. denied); Solomon-Williams v. Desai, No. 01-08-00733-CV, 2009 WL 1813135, at *3-4 (Tex. App.-Houston [1st Dist.] June 25, 2009, pet. denied) (mem. op.) (stating that Texas Legislature's finding that number of medical liability lawsuits contributed to malpractice insurance crisis constituted reasonable basis for expert-report requirement); Thoyakulathu v. Brennan, 192 S.W.3d 849, 854-56 (Tex. App.-Texarkana 2006, no pet.) (stating that state has "legitimate interest in placing restrictions on the filing of health care liability claims"). This case presents no basis for distinguishing Chalfant.
Because Fomby has not demonstrated that Chapter 74's expert-report requirement is unconstitutional, 1 either facially or as applied, I concur in the judgment affirming dismissal.