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Langley v. Jernigan

Court of Appeals of Texas, Tenth District, Waco
Aug 25, 2004
No. 10-00-00373-CV (Tex. App. Aug. 25, 2004)

Opinion

No. 10-00-00373-CV

Opinion delivered and filed August 25, 2004.

Appeal from the 19th District Court, McLennan County, Texas, Trial Court # 2000-2532-1.

Motion denied.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.


Opinion Denying Rehearing


On remand from the Texas Supreme Court, we held that the trial court did not abuse its discretion in refusing to allow Appellant Marie Langley to file an amended expert report. We noted that the report failed to discuss the three elements — standard of care, breach of duty, and causation — with sufficient specificity to inform Dr. Jernigan of the conduct being called into question. See American Transitional Care v. Palacios, 46 S.W.3d 873 (Tex. 2001).

In a motion for rehearing, Langley asks that we reconsider, saying that we extended the rule of Walker v. Gutierrez to include all reports that fail the "good faith" requirement and not just those that omit a statutory element. Walker v. Gutierrez, 111 S.W.3d 56 (Tex. 2003). Saying that we "erroneously combine[d] the Palacios and Walker holdings, she essentially argues that because the report addressed all three elements and the only evidence before the trial court on the "intentional or conscious indifference" question was the uncontroverted testimony of counsel that he believed that the report was adequate, the trial court had no discretion other than to allow an amended report.

Dr. Jernigan filed a response to the motion for rehearing, in which he outlines the differences in the questions addressed by the Supreme Court's two opinions. Under former article 4590i, the test was two-pronged: first, does the report filed constitute a good-faith effort to comply with the statutory requirements?; second, if it does not, under what circumstances may that failure be deemed the result of an accident or mistake rather than of intentional conduct or conscious indifference? Palacios addresses the first prong; Walker the second.

The former article has been moved to chapter 74 of the Civil Practice and Remedies Code. For a discussion of the changes, see Justice George C. Hanks, Jr. and Rachel Polinger-Hyman, Redefining the Battlefield: Expert Reports in Medical Malpractice Litigation After H.B.4, HOUS. LAW., July-Aug. 2004, at 25.

Walker holds that "a purported mistaken belief that the report complied with the statute does not negate a finding of `intentional or conscious indifference.'" Walker, 46 S.W.3d at 65. Although there are factual differences in the reports and the lawyers' testimonies here and in Walker, we conclude that the rule announced there applies.

Langley finds significance in the word "omits" earlier in the sentence.

Langley's motion for rehearing is denied.


Summaries of

Langley v. Jernigan

Court of Appeals of Texas, Tenth District, Waco
Aug 25, 2004
No. 10-00-00373-CV (Tex. App. Aug. 25, 2004)
Case details for

Langley v. Jernigan

Case Details

Full title:MARIE LANGLEY, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF JOHN…

Court:Court of Appeals of Texas, Tenth District, Waco

Date published: Aug 25, 2004

Citations

No. 10-00-00373-CV (Tex. App. Aug. 25, 2004)