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following Garcia v. Gomez in holding that similar affidavit not conclusory
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No. 05-09-00825-CV
Opinion Filed January 19, 2011.
On Appeal from the 298th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 09-04313-M.
Before Justices MOSELEY, BRIDGES, and O'NEILL.
MEMORANDUM OPINION
Because of the extensive litigation involving this case and the previous appeals before this Court, the underlying facts are well-known to the parties. Thus, we will discuss only those facts necessary for disposition of this appeal. See Tex. R. App. P. 47.4. In nine issues, appellant Frances Ann Giron challenges the trial court's dismissal of her suit under chapter 74 of the Texas Civil Practice and Remedies Code. We affirm the trial court's order.
See In re Estate of Bendtsen, 230 S.W.3d 832 (Tex. App.-Dallas 2007, no pet.) (discussing conflicting claims regarding rights to administer the estate); In re Estate of Bendtsen, 230 S.W.3d 823 (Tex. App.-Dallas 2007, pet. denied) (affirming trial court's summary judgment setting aside the 2005 will and admitting the 2002 will for probate); In re Estate of Bendtsen, 229 S.W.3d 845 (Tex. App.-Dallas 2007, no pet.) (noting suit arises from a contest between two competing wills but dismissed for lack of jurisdiction).
Background
Giron filed her third amended petition and request for disclosures against appellees Baylor University Medical Center and Baylor Health Care System ("Baylor") in May 2007 alleging a negligence and breach of contract claim. She specifically alleged Baylor was negligent when it honored the durable power attorney, the medical power of attorney, and the other documents purporting to give certain parties authority over the health care decisions of Mary Ellen Bendtsen, Giron's mother, because Baylor knew she was incompetent. Giron further claimed Baylor negligently failed to comply with terms of its agreement to provide Ms. Bendtsen adequate and appropriate medical and nursing care, a safe environment, and adequate security from "predators" trying to take advantage of her in her diminished mental state. These failures resulted in the breach of Baylor's agreement and was the direct and proximate cause of damages, which included the amount Baylor charged and received as payment for Bendtsen's care, Giron's legal fees to ensure her mother's wishes were granted, and interference with her inheritance rights.
Despite arguing the damages she suffered due to Baylor's conduct are not the type susceptible to proof by testimony or reports from a medical doctor, Giron filed two expert reports as required under chapter 74 of the Texas Civil Practice and Remedies Code. Attorney Mark D. Cronenwett provided one report and Dr. Lige B. Rushing, Jr. provided the second report. Baylor objected to both reports and later filed a motion to dismiss pursuant to Texas Civil Practice and Remedies Code section 74.351(b). The trial court granted Baylor's motion. This appeal followed.
The original trial court cause number was 06-02257-M. Once the trial court granted the motion to dismiss, it granted the Baylor defendants' motion to sever from the remaining defendants and entered the new cause number of 09-04313-M.
Standard of Review
We review a trial court's decision to grant or deny a motion to dismiss under section 74.351 for an abuse of discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). The trial court abuses its discretion if it acts unreasonably, arbitrarily, or without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).
Expert Reports
In her first six issues, Giron argues the trial court abused its discretion by granting Baylor's motion to dismiss based on defects in her expert reports. Before considering these arguments, we first address the scope of our opinion and whether Baylor's objections were properly raised in the trial court.
In her brief Giron states she "does not concede her claims against Baylor are subject to the requirements of the Health Care Liability Act . . . but even so, she satisfied those requirements." She further argues her claims for damages do not involve a bodily injury, but rather pertain to the significant reduction in the economic value of her mother's estate because of the drawn out probate battle. Moreover, she claims she should not be required to present causation or damages evidence from a doctor because a doctor is not qualified to testify to the type of economic damages she is seeking.
Neither party has raised an issue challenging whether Giron's claims are appropriate under chapter 74. Therefore, we do not address whether a claim resulting in no physical injury is a health care liability claim when left unchallenged. Because Giron has pleaded her case as a health care liability claim under chapter 74, we will analyze it accordingly and determine if the trial court abused it discretion in dismissing her case. We must now determine if Baylor waived several of its objections to Giron's expert reports. In her second and third issues, Giron argues Baylor failed to object within twenty-one days that Dr. Rushing's expert report was deficient as to causation and damages; therefore, Baylor has waived its argument and the trial court abused its discretion in granting the motion to dismiss. In her fifth issue, she asserts the trial court erred in granting the motion to dismiss because of any other defect because any other argument is likewise waived. Baylor responds it timely filed objections; therefore, the real question is whether its objections adequately preserved its complaints. Relying on Baylor University Medical Center v. Rosa, 240 S.W.3d 565 (Tex. App.-Dallas 2007, pet. denied), Baylor claims it adequately objected to the expert reports.
We agree with Baylor that it timely filed objections to the expert reports. Giron filed a notice of filing expert reports on September 7, 2007. Baylor served Giron its objections by facsimile on September 28, 2007 and the court filed them on October 7, 2007. Thus, Baylor objected within twenty-one days as required by statute. Tex. Civ. Prac. Rem. Code Ann. § 74.351(a) (West Supp. 2010).
We further agree Baylor's objections were adequate to preserve its objections. In Rosa, Baylor objected "that the qualifications and the expert report[s] do not meet the required elements of an expert report under 74.351," and cited sections 74.351(r)(5) and (6). Rosa, 240 S.W.3d at 569. In a later motion to dismiss, Baylor elaborated on the specific arguments concerning the statutory objections raised. Id. This Court concluded Baylor preserved its timely filed objections even though it did not include specific details regarding its statutory objections.
Here, Baylor filed objections to Dr. Rushing's and Cronenwett's expert reports stating they "[do] not meet the statutory requirements of an expert qualified to tender an expert report against these Defendants" and cited section 74.351(r)(5). It further objected the reports did not meet a good faith attempt to meet the statutorily required elements of an expert report and was wholly conclusory, citing section 74.351(r)(6). Baylor later filed a motion to dismiss elaborating on the reasons the expert reports were inadequate under chapter 74. Although Giron argues Baylor raised a series of new, untimely objections in its motion to dismiss, we do not agree. Baylor's objections are similar to the objections we concluded were sufficient in Rosa; therefore, Baylor has preserved its objections. Thus, we overrule Giron's second, third, and fifth issues and will address the merits of the expert reports accordingly.
In her first issue, Giron argues the trial court erred by requiring testimony from a doctor on causation because economic damages are not the type of damages a doctor is qualified to testify about. As previously stated, Giron has pleaded and presented her case under chapter 74; therefore, we must analyze Dr. Rushing's expert report under the statutory requirements of chapter 74.
Under section 74.351, a claimant must "serve on each party or the party's attorney" an expert report and curriculum vitae "not later than the 120th day after the date the original petition was filed." Tex. Civ. Prac. Rem. Code Ann. § 74.351(a). An expert report is "a written report by an expert that provides a fair summary of the expert's opinions . . . regarding applicable standards of care, the manner in which the care rendered . . . failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Id. § 74.351(r)(6).
A "fair summary" of the applicable standard of care and breach identifies the type of care expected but not rendered. Palacios, 46 S.W.3d at 880. The causation requirement is met if the report explains the basis of the expert's statement, linking his conclusions to the facts. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). A conclusory report does not meet the statutory test because it does not satisfy Palacios. Id. at 53. Further, causation may not be inferred. Castillo v. August, 248 S.W.3d 874, 883 (Tex. App.-El Paso 2008, no pet.). In our review of an expert report, we are limited to the four corners of the report in determining whether it manifests a good faith effort to comply with the statutory definition of an expert report. Palacios, 46 S.W.3d at 878; see Tex. Civ. Prac. Rem. Code Ann. § 74.351( l) (requiring that the trial court "grant a motion challenging the adequacy of the expert report only if it appears to the court, after a hearing, that the report does not represent an objective good faith effort to comply" with the statutory definition). A court may not fill in gaps in a report by drawing inferences or guessing what the expert meant or intended. Austin Heart, P.A. v. Webb, 228 S.W.3d 276, 279 (Tex. App.-Austin 2007, no pet.). But the report "need not marshal all the plaintiff's proof." Palacios, 46 S.W.3d at 878; Jernigan, 195 S.W.3d at 93. If the expert report puts the defendant on notice of the specific conduct complained of and provides the trial court a basis on which to conclude the claims have merit, the report represents a good-faith effort to comply with the statute. Palacios, 46 S.W.3d at 879.
Here, Dr. Rushing's report states he "evaluated whether the breaches in the standards of care resulted in any injury to Mrs. Bendtsen." He ultimately concludes, "Mrs. Bendtsen did not suffer any physical injuries as a result of this matter. Her daughter, however, was precluded from attending her mother during her last days when she was terminally ill." Thus, because his report states Mrs. Bendtsen suffered no physical injury, he has failed to show any causal relationship between a failure in the standard of care and the injury, harm, or damages claimed against Baylor. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(r)(6); see Marks v. St. Luke's Episcopal Hosp., 319 S.W.3d 658, 662 (Tex. 2010) (noting health care liability claim must be about a patient's treatment, lack of treatment, or departure from accepted standards of medical care, health care, or safety and such omission proximately caused the injury).
At most, the report asserts damages for loss of consortium. See, e.g., Reagan v. Vaughn, 804 S.W.2d 463, 466 (Tex. 1990) ("The obvious and unquestionable significance of the parent-child relationship compels our recognition of a cause of action for loss of parental consortium."); U-Haul Int'l, Inc. v. Waldrip, 322 S.W.3d 831, 856 (Tex. App.-Dallas 2010, pet. filed) (noting Texas law recognizes a cause of action for parental consortium). Although Giron has asserted damages for "loss of her mother's companionship, society, affection, comfort, love, assistance, and familial relationship" due to acts or omissions of Baylor, Dr. Rushing's report does not provide any explanation connecting Baylor's actions to the alleged loss of consortium claim. Expert reports cannot be conclusory nor can we fill in gaps or make inferences about what Dr. Rushing meant. See Austin Heart P.A., 228 S.W.3d at 279. Because Dr. Rushing's report does not establish causation, it does not meet the statutory definition of "expert report" under section 74.351(r)(6). Tex. Civ. Prac. Rem. Code Ann. 74.351(r)(6).
Giron also submitted an expert report from Mark Cronenwett, an attorney, to address "the causal relationship between the acts and omissions of Baylor University Medical Center and/or Baylor Health Care Systems, . . ., as well as damages suffered by the Estate of Mary Ellen Bendtsen and Frances Ann Giron." However, section 74.351(r)(5) specifically defines "expert" to mean the following:
(C) with respect to a person giving opinion testimony about the causal relationship between the injury, harm, or damages claimed and the alleged departure from the applicable standard of care in any health care liability claim, a physician who is otherwise qualified to render opinions on such causal relationships under the Texas Rules of Evidence.
Tex. Civ. Prac. Rem. Code Ann. 74.351(r)(5)(C). Therefore, only a physician may render opinions regarding causation in an expert report. Id.; see also Davis, 246 S.W.3d at 771. Because Cronenwett is an attorney and not a physician, he is not qualified to provide causation testimony regarding any acts or omissions by Baylor that may have resulted in damages to Giron. Thus, the trial court did not abuse its discretion by not considering his expert report on causation to support her claim. Giron's first issue is overruled.
In her fourth issue, Giron asserts the trial court erred in interpreting section 74.351(r)(5) to require testimony from a doctor on causation because such a requirement imposes an impossible burden under these facts, and the statute is unconstitutional under the open courts provision of the Texas Constitution. See Tex. Const. art. I, § 13. We cannot agree. When Giron chose to proceed under chapter 74 and plead her cause of action as a health care liability claim, she bound herself to the statutory requirements. See, e.g., Wheeler v. Thomas, 328 S.W.2d 891, 896-97 (Tex. Civ. App.-Beaumont 1959, no writ) (op. on reh'g) (holding appellant's right of recovery was restricted by his own pleadings and evidence and must be reviewed in light of the theories on which it was tried). This includes filing an adequate expert report by a physician, regardless of whether she believes a doctor is unqualified to opine on her economic damages. Further, it has been held that section 74.351 does not violate the open courts provision of the Texas Constitution. See Mocega v. Urquhart, 79 S.W.3d 61, 64 (Tex. App.-Houston [14th Dist.] 2002, pet. denied); see also Gulf Coast Med. Ctr., LLC v. Temple, 13-09-00350-CV, 2010 WL 196972, at *6 (Tex. App.-Corpus Christi Jan. 21, 2010, no pet.) (mem. op.) (noting every court that has considered whether the expert report requirement passes constitutional muster has concluded it does); Powell v. Clements, 220 S.W.3d 138, 140 (Tex. App.-Waco 2007, pet. denied). Accordingly, we overrule her fourth issue.
In her sixth issue, Giron contends the trial court erred by granting the motion to dismiss "on any issue other than liability or causation because expert reports need not address issues other than liability and causation . . . and any alternate basis for dismissal was not properly before the trial court." Giron's argument is without merit. The trial court's order states "Plaintiff has not served a report on these Defendants that is sufficient under the statute, and, therefore, the Motion should be GRANTED." As previously stated, Giron's expert reports failed to show any physical injury caused by Baylor; therefore, she did not meet the statutory requirements of chapter 74. Any other alleged issues the trial court may have dismissed under are irrelevant. Giron's sixth issue is overruled.
Attorney's Fees
In her seventh issue, Giron challenges the trial court's award of attorney's fees because the award is supported by a conclusory affidavit and fails to meet the requirements of Arthur Anderson Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex. 1997). She contends Baylor failed to present evidence to support any of the Anderson factors.
Under section 74.351(b)(1), the trial court must enter an order awarding reasonable attorney's fees and costs of court when dismissing a case for failure to timely serve the required expert report. Tex. Civ. Prac. Rem. Code Ann. § 74.351(b)(1); Davis, 246 S.W.3d at 774. The amount of the award is within the discretion of the trial court. Hagedorn v. Tisdale, 73 S.W.3d 341, 353 (Tex. App.-Amarillo 2002, no pet.). Because Giron asserts there is no evidence to support any of the Anderson factors, we must examine the record for any probative evidence, when viewed in the light most favorable to the judgment, that supports it. Id.
Factors considered by the court when determining the amount of reasonable fees include (1) the time and labor required, novelty and difficulty of the question presented, and the skill required, (2) the likelihood that acceptance of employment precluded other employment, (3) the fee customarily charged for similar services, (4) the amount involved and the results obtained, (5) the time limitations imposed by the client or the circumstances, (6) the nature and length of the professional relationship with the client, (7) the experience, reputation, and ability of the lawyer performing the services, and (8) whether the fee is fixed or contingent. Arthur Anderson Co., 945 S.W.2d at 818. Nothing suggests that these are required elements nor must a party present evidence as to each one. See Academy Corp. v. Interior Buildout Turnkey Const., Inc., 21 S.W.3d 732, 742 (Tex. App.-Houston [14th Dist.] 2000, no pet.).
Giron relies on Garcia v. Gomez, 286 S.W.3d 445 (Tex. App.-Corpus Christi 2008) to support her argument. In that case, the court of appeals concluded the attorney provided only conclusory statements, without any underlying facts to support the conclusions, in support of fees. Id. at 448-49. The court further noted the attorney "attempted to prove only the third factor." Id.
Giron has failed to acknowledge the Supreme Court of Texas reversed this decision. See Garcia v. Gomez, 319 S.W.3d 638 (Tex. 2010). Upon review, the court acknowledged the attorney testified briefly about his experience in medical malpractice litigation and estimated $12,200 to be a reasonable and necessary fee for representation through dismissal in such a case. Id. at 641. It concluded "[w]hile the attorney's testimony lacked specifics, it was not, under these circumstances, merely conclusory. It was some evidence of what a reasonable attorney's fee might be in this case." Id.
Here, James M. Stewart submitted an affidavit providing his background and experience handling healthcare liability cases since 1982. He stated he is familiar with the reasonable and customary attorney fees associated with the defense of healthcare liability claims. He then provided that based on the fee agreement, Baylor has incurred fees and costs totaling $46,401.24 and such fees are customary in this area for similar services of an attorney with his experience, reputation, and ability. Similar to Garcia, Stewart may have lacked specifics; however, the affidavit was not conclusory. It provided some evidence of a reasonable fee. Thus, the trial court did not abuse its discretion in awarding the statutorily mandated attorney's fees. We overrule Giron's seventh issue.
Declaratory Judgment
In her eighth issue, Giron asserts her request for declaratory judgment was not addressed in Baylor's motion to dismiss; therefore, it is still pending in the trial court and deprives this Court of jurisdiction. Baylor responds that because Giron did not sue on behalf of the estate, whether or not she possessed authority to bring the lawsuit or obtain her mother's medical records is not an issue that affects the outcome of the current litigation. Therefore, there was nothing left for the trial court to rule on after granting the motion to dismiss and the judgment became final. We agree with Baylor.
The Texas Declaratory Judgment Act is a remedial statute that affords relief from uncertainty and insecurity with respect to rights, status, and other legal relations. Tex. Civ. Prac. Rem. Code Ann. 37.002(b) (West 2008); Berthelot v. Brinkmann, 322 S.W.3d 365, 369 (Tex. App.-Dallas 2010, pet. denied). A suit under the Act is appropriate only if: (1) a justiciable controversy exists as to the rights and status of the parties; and (2) the controversy will be resolved by the declaration sought. See Tex. Dep't of Pub. Safety v. Moore, 985 S.W.2d 149, 153 (Tex. App.-Austin 1998, no pet.). A justiciable controversy is one in which a real and substantial controversy exists involving a genuine conflict of tangible interest and not merely a theoretical dispute. Id.
A personal representative, administrator, or heir may sue on behalf of an estate. See Tex. Civ. Prac. Rem. Code Ann. § 71.021(b) (West 2008); Stewart v. Hardie, 978 S.W.2d 203, 206 (Tex. App.-Fort Worth 1998, pet. denied); see also Tex. Prob. Code Ann. § 233A (suits for recovery for personal property, debts, or damages may be instituted by executors or administrators appointed in the state) (West 2003). A "personal representative" or "representative" includes an executor, independent executor, administrator, independent administrator, and temporary administrator, together with their successors. Tex. Prob. Code Ann. § 3(aa) (West 2003). Here, Giron has not brought suit against Baylor in any capacity other than her individual capacity. There is no recovery sought for the estate and no pleading that would have allowed the trial court or the parties to conclude the estate is a party. Therefore, whether Giron has authority to bring the lawsuit on behalf of the estate as executrix and whether she has authority to obtain her mother's medical records were not justiciable controversies the trial court could resolve by any declaration. By not originally bringing suit as the executrix on behalf of the estate, any declaration that she had authority to bring suit would be meaningless.
Accordingly, when the trial court granted the motion to dismiss the order became a final, appealable judgment. Thus, we reject Giron's argument that her declaratory judgment motion remains outstanding and deprives this Court of jurisdiction. We overrule Giron's eighth issue.
Discovery
In her final issue, Giron complains the trial court denied her of due process by refusing to allow discovery. Baylor replies the issue is waived because Giron failed to cite to any order in the record in which the trial court denied discovery. We agree.
Texas Rule of Appellate Procedure 38 provides that a brief to the court shall contain, among other things, "a clear and concise argument for the contentions made, with appropriate citations to authorities and the record." Tex. R. App. P. 38.1(h); In re B.A.B., 124 S.W.3d 417, 420 (Tex. App.-Dallas 2004, no pet.). In her brief, Giron makes conclusory statements that "it was not a law that served to deny Giron of her due process rights. Instead, it was the Trial Court's refusal to permit [her] the very discovery she is permitted under Chapter 74. . . ." Shortly thereafter, she again states it was the trial court that "refused to permit Plaintiff's discovery." However, nowhere does Giron cite to the record directing this Court to any order in which the trial court denied her discovery. In fact, the only order in the record involving discovery is the associate judge's ruling on plaintiff's amended second motion to compel discovery and supplement to plaintiff's amended second motion to compel discovery. In that order, the associate judge sustained in part and overruled in part objections made by Baylor; therefore, Baylor was required to respond to portions of Giron's discovery requests. Giron has not specifically complained about any of the associate judge's rulings. Thus, she has failed to bring forth a concise argument, supported by record references, for this Court to review. Therefore, her issue is waived. We overrule Giron's ninth issue.
Conclusion
Having overruled Giron's issues, we affirm the trial court's order granting Baylor's motion to dismiss.