Opinion
No. 01-07-00199-CV
Opinion issued January 31, 2008.
On Appeal from 152nd District Court, Harris County, Texas, Trial Court Cause No. 2006-38894(c), Hon. Kenneth P. Wise, Nalani Callico.
Andrew Lee Payne, Payne Payne Associates Houston, TX.
Sandrice M. McGlown, Payne Payne Associates Houston, TX.
Dale Burrus, Frisby Kroger, Myers, Frisby Hirsch Houston, TX.
Leah Ann Greene, Kroger, Myers, Frisky Hirsch Houston, TX.
Tamara M. Madden, Johnson, Spalding, Doyle, West Trent, LLP. Houston, TX.
Chetna Gosain Koshy, Cruse, Scott, Henderson Allen, L.L.P. Houston, TX.
John R. Strawn, Jr. Cruse, Scott, Henderson Allen, L.L.P. Houston, TX.
Melanie Ann Rubinsky, Johnson, Spalding, Doyle, West Trent, L.L.P. Houston, TX.
Cynthia D. Rendon Johnson, Spalding, Doyle, West Trent, L.L.P. Houston, TX.
Lauren B. Harris, Johnson, Spalding, Doyle, West Trent, L.L.P. Houston, TX.
Panel consists of Justices, TAFT, KEYES, and ALCALA.
OPINION
Appellants, Raymon Poland, individually and as independent administrator of the estate of Jessie Poland, Robert Martin, and Frank Martin ("the Poland parties"), appeal from a judgment dismissing their health-care-liability and related claims against appellee, Dr. David Ott. We determine whether the trial court erred in granting Dr. Ott's motion to dismiss the claims against him for the Poland parties' failure properly and timely to serve an expert report on Dr. Ott. We affirm.
Background
The factual recitations come from the Poland parties' petitions. Appellant Raymon Poland was the husband of Jessie Poland; the remaining appellants were his natural children. In August 2003, Jessie Poland, under the care of Dr. James Willerson (an appellee in a related appeal) and Dr. Ott, was hospitalized at St. Luke's Episcopal Hospital and the Texas Heart Institute (both appellees in another related appeal) for an elective surgical procedure to repair her heart's mitral valve. Dr. Alina Grigore, who was employed by Dr. Arthur S. Keats Associates (both of whom are appellees in another related appeal), was the anesthesiologist for the surgical procedure. The Poland parties alleged that, at the time of surgery, Jessie Poland's blood contained a level of Coumadin that the health-care providers should have known rendered her blood fully anti-coagulated and, thus, rendered surgery dangerous. The surgery was nonetheless performed; Jessie Poland bled internally; and she died several days later of multi-system organ failure.
The Poland parties sued, among other defendants, St. Luke's Episcopal Hospital, the Texas Heart Institute, the University of Texas Health Science Center at Houston, Arthur S. Keats Associates, and Drs. Ott, Grigore, and Willerson on October 24, 2005 for Jessie Poland's wrongful death, for her pain and suffering and medical costs before her death, and for her burial expenses. By the time of the trial court's complained-of ruling, the Poland parties had amended their petition to allege the following causes of action or theories of recovery against all defendants, including Dr. Ott: (1) negligence, (2) gross negligence, (3) actual and constructive fraud, (4) intentional infliction of emotional distress, (5) assault and battery, (6) intentional and negligent abandonment, (7) breach of fiduciary duties, (8) "negligent breach of fiduciary duties," (9) malpractice, (10) "lack of proper informed consent," (11) "tampering with official medical records," (12) "forgery," (13) violations of the Texas Deceptive Trade Practices-Consumer Protection Act ("DTPA"), and (14) conspiracy among all defendants. This "live" petition also added allegations that the defendants had altered Jessie Poland's medical records and forged Raymon Poland's signature on unspecified hospital documents. They sought actual and exemplary damages.
See TEX. BUS. COM. CODE ANN. §§ 17.41-.63 (Vernon 2002 Supp. 2007).
On June 20, 2006, Dr. Ott moved, under Texas Civil Practice and Remedies Code section 74.351(b), to dismiss the Poland parties' health-care-liability claims against him for failure to serve an expert report upon him or his attorney within 120 days of the filing of those claims. See Tex. Civ. Prac. Rem. Code Ann. § 74.351(b) (Vernon Supp. 2007) (providing that trial court must dismiss health-care-liability claim against defendant if claimant fails to serve expert's report and curriculum vitae on that defendant within period specified by section 74.351(a)); Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875 (providing that claimant must serve each defendant against whom health-care-liability claim is asserted with expert's report and curriculum vitae not later than 120 days of claim's filing) [hereinafter, "former section 74.351(a)"], amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590, 1590 (current version at Tex. Civ. Prac. Rem. Code Ann. § 74.351(a) (Vernon Supp. 2007)). The motion alleged that the Poland parties had served the report of their expert, Dr. Dennis Moritz, on Dr. Ott's attorney 123 days after their health-care-liability claims had been filed against him.
Dr. Ott, like several other defendants, also objected to and moved to strike the Poland parties' live petition to the extent that it attempted to recast health-care-liability claims as other causes of action.
This first unsigned report of Dr. Moritz was dated May 2, 2005.
The Poland parties did not deny that they had served Dr. Moritz's May 2, 2005 report on Dr. Ott's counsel 123 days after their claims had been filed against Dr. Ott, but in their response, they alleged that they had "served" that same report on Gary McLeod, a representative of Dr. Ott's professional liability carrier (APMC Insurance Services), whom they described in their response as Dr. Ott's "designated representative" for receipt of the report, on July 29, 2005 — nearly three months before suit was filed. The Poland parties produced evidence that they alleged supported their response's allegation. For example, they attached a letter, dated July 13, 2005, from McLeod to the Poland parties' attorneys, which in pertinent part read:
In May 2006, more than half a year after suit had been filed, the Poland parties served a second unsigned report of Dr. Moritz, dated May 19, 2006, along with a May 2006 report of a nurse, Rachel Cartwright, on at least some of the defendants in their lawsuit. The trial court struck the May 19, 2006 expert report of Dr. Moritz and the May 2006 expert report of Cartwright for their having been untimely served. The Poland parties do not complain on appeal of the striking of Dr. Moritz's or Cartwright's 2006 reports. Because the only report of significance to our discussion is the May 2, 2005 expert report of Dr. Moritz, we refer only to that report in our discussion.
Your letter of June 30, 2005 to David Alan Ott, M.D. has been referred to us for response, as we are his professional liability carrier. We will be investigating this case on behalf of Dr. Ott.
. . .
I also request that you provide me with your medical expert's specific criticisms of our member's care so that we might share those concerns with David Alan Ott, M.D.
They also attached their attorney's July 29, 2005 response to McLeod's letter:
Additionally, you will find enclosed the information that you requested regarding the opinion of our expert witness.
. . .
I will also fax you some additional information shortly.
Attached to the Poland parties' attorney's July 29 letter was the unsigned expert report of Dr. Moritz and his curriculum vitae ("CV"). Finally, the Poland parties attached the affidavit of their counsel, who averred in pertinent part as follows:
I received notice from APMC Insurance Services on behalf of Dr. Ott. They [sic] requested the "medical expert's specific criticisms of our member's care so that we might share those concerns with David Alan Ott, M.D.". . . . I then replied . . . by sending Mr. Gary McLeod the Expert Report with Resume. I discussed wanting to look at possible settlement of this claim. . . . Mr. McLeod stated that he would have to send for the medical records from the hospital, to which I returned to him the medical authorization he had previously sent me, along with a copy of the Expert Report with Resume. . . . The Defendants have had the Expert report with Resume since May 2005.
(Emphasis added.)
The hearing on Dr. Ott's motion to dismiss and his motion to strike the live petition occurred on July 14, 2006. Other defendants' motions to dismiss, objections to the expert report, and objections to the live petition were heard simultaneously. No additional evidence was presented at the hearing, but the following discussion between the trial court and Dr. Ott's attorney transpired:
Court: Who got the [expert] report beforehand [before suit's filing]?
. . .
Dr. Ott's attorney: Dr. Ott received it through — he was served with it through his carrier pre suit notification. We, as the attorneys did not — we did not have communications with the plaintiffs before the lawsuit was filed.
. . .
Court: . . . Heart Institute and St. Luke's gets [sic] pre suit report, [Dr.] Grigore gets no report before or after. . . . Willerson, gets — is not a part of this lawsuit. [Dr.] Ott gets report pre suit, directly from his insurance carrier. Attorneys never —
Dr. Ott's attorney: The insurance carrier, yes. The insurance carrier gets them.
On October 30, 2006, the trial court rendered an interlocutory order that, among doing other things, dismissed the claims against Dr. Ott with prejudice:
On July 14, 2006 . . . CAME TO BE HEARD all parties, by and through counsel, . . . Dr. David Ott's Motion to Dismiss and Dr. David Ott's Motion to Strike Objections to Plaintiff's [sic] Third Amended Petition. . . . The Court, having considered such Motions and Objections, having reviewed the file herein, and heard the argument of counsel, makes the following FINDINGS OF FACTS and ORDERS:
1. Plaintiffs . . . filed their Original Petition on October 24, 2005. The 120-day deadline by which Plaintiffs were required to serve their expert reports pursuant to Section 74.351 of the Tex. Civ. Prac. Rem. Code was February 21, 2006. The earliest date that Plaintiffs served an expert report to any Defendant, after the filing of their lawsuit, was on February 24, 2006.
. . .
5. With respect to Defendant Dr. David Ott, Plaintiffs mailed Defendant Dr. David Ott's insurance agent with an unsigned expert report from Dennis Moritz, M.D. on July 29, 2005. Plaintiffs provided no evidence that Dr. Ott or his counsel received said unsigned expert report. The suit was filed by Plaintiffs against Dr. Ott on October 24, 2005. The deadline to serve the expert report was February 21, 2006. Plaintiffs served upon Dr. Ott's counsel the unsigned expert report on February 24, 2006, three days after the 120 day deadline, pursuant to Section 74.351 of the Tex. Civ. Prac. Rem. Code. It is therefore ORDERED that Defendant Dr. David Ott's Motion to Dismiss and Motion to Strike and Objections to Plaintiff's [sic] Third Amended Petition [be] GRANTED, and all claims against Dr. David Ott [be] DISMISSED with prejudice.
. . .
7. It is further ORDERED that pursuant to Section 74.351 of the Tex. Civ. Prac. Rem. Code that . . . Dr. David Ott [be] awarded attorney's fees in the amount of $14,893.00. The collection of these attorney's fees is stayed pending outcome of any interlocutory appeal.
This same order also (1) denied St. Luke's Episcopal Hospital and the Texas Heart Institute's joint motion to dismiss under Texas Civil Practice and Remedies Code section 74.351 and (2) granted Dr. Grigore and Arthur S. Keats Associates' motion to dismiss under section 74.351(b). Finally, the trial court signed a separate interlocutory order that granted Dr. Willerson's motion to dismiss based upon Texas Civil Practice and Remedies Code section 101.106. See Tex. Civ. Prac. Rem. Code Ann. § 101.106 (Vernon 2005).
The Poland parties appealed the adverse rulings dismissing all of their claims against Drs. Ott, Willerson, and Grigore and Arthur S. Keats Associates, and St. Luke's Episcopal Hospital and the Texas Heart Institute appealed the denial of their motion to dismiss — all under the same appellate cause number. Although the interlocutory order appealed by St. Luke's Episcopal Hospital and the Texas Heart Institute was permitted by statute, this was not true of every appealed order. See Tex. Civ. Prac. Rem. Code Ann. § 51.014(a) (Vernon 1997 Supp. 2007). On December 18, 2006, upon the parties' motion, this Court abated the appeal and remanded the cause for the trial court — upon various parties' motions, filed in the trial court after appeal, to sever the interlocutory orders rendered in favor of Dr. Ott, of Dr. Willerson, and of Dr. Grigore and Dr. Arthur S. Keats Associates — to render final and appealable those interlocutory rulings that had not been appealable on an interlocutory basis. Upon remand, the trial court severed the rulings against the specified defendants from the underlying cause, rendering a final judgment in the newly severed cause numbers involving Dr. Ott, Dr. Willerson, and Dr. Grigore and Dr. Arthur S. Keats Associates. On March 15, 2007, this Court reinstated the appeal, assigning different appellate cause numbers to the appeal of what had by then become four separate rulings in four separate trial-court cause numbers. This opinion and judgment concern the Poland parties' appeal of the dismissal order rendered in favor of Dr. Ott.
Service on Dr. Ott
In one issue, the Poland parties argue that the trial court erred in granting Dr. Ott's dismissal motion and dismissing their claims against him with prejudice because they "served" their expert's report and CV on McLeod, Dr. Ott's "designated representative and duly authorized agent," about five months before they filed suit against Dr. Ott, rendering the report timely filed under former section 74.351(a). They argue that service in this fashion was "equivalent to serving" Dr. Ott himself and thus satisfied "the spirit of [former] section 74.351(a)." They also argue that former section 74.351(a) can be satisfied by provision of an expert's report on a physician or health-care provider before a claim has been asserted against that person or entity in a lawsuit (here, presuit, as Dr. Ott was made a defendant by the original petition), so that the same report need not be served again within 120 days of the claim's filing against that defendant. Dr. Ott disputes (1) that McLeod was Dr. Ott's agent for purposes of service of the expert report, as a matter of fact; (2) that former section 74.351(a) allows for service on any person other than the defendant or his attorney, as a matter of law; and (3) that provision of an expert report before a claim is filed in court against the physician or health-care provider complies with former section 74.351(a).
A. Standard of Review and the Law
"We generally review rulings on a motion to dismiss under section 74.351(b) for abuse of discretion." Univ. of Tex. Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 871 (Tex.App.-Houston [1st Dist.] 2007, pet. filed). However, some of the issues that we consider in this appeal are factually based, and some are questions of law. "We review questions of law de novo." Id. "Nonetheless, a trial court has no discretion in determining what the law is, which law governs, or how to apply the law." Id. at 871 n. 1. Accordingly, the standard of review is the same "regardless of whether it is described as abuse of discretion or de novo." Id.; accord Intracare Hosp. N. v. Campbell, 222 S.W.3d 790, 795 (Tex.App.-Houston [1st Dist.] 2007, no pet.).
Former section 74.351(a) provides as follows concerning service of the expert report and CV:
§ 74.351. Expert Report
(a) In a health care liability claim, a claimant shall, not later than the 120th day after the date the claim was filed, serve on each party or the party's attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted. The date for serving the report may be extended by written agreement of the affected parties. Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived.
See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875, amended by Act of May 18, 2005, 79th Leg., ch. 635, § 1, 2005 Tex. Gen. Laws 1590, 1590 (current version at Tex. Civ. Prac. Rem. Code Ann. § 74.351(a) (Vernon Supp. 2007)). The section continues:
(b) If, as to a defendant physician or health care provider, an expert report has not been served within the period specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall, subject to Subsection (c), 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 Ann. § 74.351(b) (Vernon Supp. 2007).
B. Discussion
We need not determine whether the trial court erred to the extent that it may have considered whether McLeod was Dr. Ott's "designated representative and duly authorized agent" for the purpose of receiving the expert report and CV or whether former section 74.351(a) even allows designated representatives of a defendant or his attorney to receive service of an expert's report. Even if the answer to both questions is "yes," we must nonetheless affirm because (1) provision of an expert report before a health-care-liability claim is filed in court against the physician or health-care provider does not meet former section 73.351(a)'s service requirements and, independently, (2) nothing shows that the expert report was served by proper means.
1. Provision of the Report Before a Claim's Filing
Although former section 74.351(a) does not define the term "serve," this Court has recently held that "the Legislature intended for [health-care-liability] claimants to comply with rule 21a [of the Texas Rules of Civil Procedure] to fulfill the requirements of section 74.351(a)." Gutierrez, 237 S.W.3d at 872. "Rule 21a authorizes four methods for service upon a party: (1) delivery in person, by agent, or by courier-receipted delivery; (2) certified or registered mail; (3) telephonic document transfer; or (4) such other manner as the court in its discretion may direct." Id. (citing Tex. R. Civ. P. 21a). "The party or attorney of record must certify to the court compliance with . . . rule [21a] in writing over signature and on the filed instrument." Tex. R. Civ. P. 21a.
"Statutes must be construed as written, and legislative intent determined, if possible, from their express terms." Gutierrez, 237 S.W.3d at 873. "Chapter 74, in its entirety, rather than provisions in isolation, must be considered, and meaning given to each provision consistent with all others." Id. "Courts presume that the entire statute is to be effective and a just and reasonable result is intended." Id. "Even if a statute is unambiguous, courts may consider the statute's objective; circumstances of its enactment; its legislative history; . . . [and] consequences of a particular construction. . . . Id. "All words used and omitted are presumed used and omitted purposefully." Id.
The plain language of former section 74.351(a) and rule 21a, which it implicitly incorporates, simply do not contemplate "service" of the expert's report and CV on a physician or health-care provider until after a claim has been filed in court against that person or entity. We reach this conclusion despite the fact that, as the Poland parties note, the section requires service " not later than" 120 days after a claim is filed, rather than requiring service within 120 days after the claim is filed. (Emphasis added.) Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875, amended by Act of May 18, 2005, 79th Leg., ch. 635, § 1, 2005 Tex. Gen. Laws 1590, 1590.
First, former section 74.351(a) speaks in terms of service on a party or the party's attorney, and it uses the term "defendant" for the physicians and health-care providers whom the expert report implicates. See id. One is not a "party" or a "defendant" until a claim is asserted against one in a suit. That the Legislature knew what it was saying when it employed the terms "party" and "defendant" in former section 74.351(a) can be seen from other provisions of chapter 74. For example, section 74.051, concerning notice of a health-care-liability claims, provides:
§ 74.051. Notice
(a) Any person or his authorized agent asserting a health care liability claim shall give written notice of such claim by certified mail, return receipt requested, to each physician or health care provider against whom such claim is being made at least 60 days before the filing of a suit in any court of this state based upon a health care liability claim. . . .
(b) In such pleadings as are subsequently filed in any court, each party shall state that it has fully complied with the provisions of this section . . . and shall provide such evidence thereof as the judge of the court may require to determine if the provisions of this chapter have been met.
(c) Notice given as provided in this chapter shall toll the applicable statute of limitations to and including a period of 75 days following the giving of the notice, and this tolling shall apply to all parties and potential parties.
Tex. Civ. Prac. Rem. Code Ann. § 74.051(a)-(c) (Vernon 2003) (emphasis added). Section 74.051(a)'s notice requirements necessarily apply before a health-care-liability claim is filed in a suit ("Any person . . . asserting a . . . claim . . . shall give written notice . . . at least 60 days before the filing of a suit in any court. . . ."). Thus, when the Legislature drafted section 74.051(a), it (1) used neither "party" nor "defendant," but instead spoke only of persons, claimants, physicians, and health-care providers; (2) spoke of claims that "are being made," rather than of claims that are " filed"; and (3) provided that written notice be "give[n]," rather than that it be "served." See id. (emphasis added). In contrast, section 74.051(b), which necessarily establishes requirements applying only after court claims have been filed ("In such pleadings as are subsequently filed in any court, each party shall. . . ."), the Legislature employed the term "party." See id. § 74.051(b). And throughout chapter 74, the Legislature employs the terms "party," "plaintiff," and "defendant" only in those sections that clearly concern actions, events, or requirements that necessarily follow the filing of a health-care-liability claim in court.
See TEX. CIV. PRAC. REM. CODE ANN. § 74.053 (Vernon 2003) (employing terms "defendant" and "plaintiff" in context of damages alleged in pleadings); id. § 74.154(b)(3) (Vernon 2005) (employing term "defendant" in context of jury instructions); id. § 74.301(a) (Vernon 2005) (employing term "defendant" in context of limitation on noneconomic damages rendered upon final judgment); id. § 74.302(a)(1) (Vernon 2005) (same); id. § 74.303(a) (Vernon 2005) (same); id. § 74.352 (Vernon 2005) (employing terms "plaintiff," "defendant," and "party" in context of postsuit discovery procedures); id. § 74.401(e) (Vernon 2005) (employing term "party" in context of pretrial objections to expert-witness qualifications and court consideration of same); id. § 74.402 (Vernon 2005) (employing terms "defendant" and "party" in context of qualification of and objections to expert witnesses "in a suit involving a health care liability claim"); id. § 74.403 (Vernon 2005) (employing term "defendant" in context of pretrial objections to expert-witness qualifications and court consideration of same); id. § 74.503 (Vernon 2005) (employing term "defendant" in context of periodic payments upon award to claimant); Id. § 74.505 (Vernon 2005) (employing term "defendant" in context of showing of financial responsibility associated with periodic payments for award future damages); id. § 74.506 (Vernon 2005) (employing term "defendant" in context of effect of death of recipient on certain damages awards).
In sum, when the Legislature intended that chapter 74's requirements would or could occur before the filing of a claim in court, it did not employ terms like "party" or "defendant"; in contrast, only those sections of chapter 74 that necessarily concern actions, events, or requirements occurring after the filing of a court claim employ these terms. Therefore, the use of the terms "party" and "defendant" in former section 74.351(a) indicates that the Legislature intended for this section's service requirements to apply only after the filing of a claim in court. See Gutierrez, 237 S.W.3d at 873 ("Chapter 74, in its entirety, rather than provisions in isolation, must be considered, and meaning given to each provision consistent with all others.").
Second, the defendant whose conduct is implicated in the expert's report "must file and serve any objection to the sufficiency of a report not later than the 21st day after the date it was served, failing which all objections are waived." Tex. Civ. Prac. Rem. Code Ann. § 74.351(a) (emphasis added). There is no proceeding in which to "file" the objection until a claim is asserted in court. A good illustration is a case like this one, in which the health-care-liability claimants purport to have provided the physician with the expert report more than 21 days before the filing of a court claim against him. The result of the Poland parties' interpretation in this case is that Dr. Ott could never have timely filed an objection to the expert report with the court because the 21-day deadline to do so would have expired before a proceeding existed in which that objection could have been filed. Simply put, the 21-day deadline for a defendant's objections makes no sense unless a court claim has already been filed against the defendant. We cannot presume that the Legislature intended the nonsensical result that could occur under the Poland parties' interpretation. See id. ("Courts presume that the entire statute is to be effective and a . . . reasonable result is intended.").
Third, the plain language of rule 21a, the service methods of which former section 74.351(a) incorporates, generally concerns postsuit notice. Rule 21a provides (1) that "[e]very notice required by these rules, and every pleading, plea, motion, or other form or request to be served under Rule 21, other than the citation . . . may be served" in one of four ways upon "the party" or "the party's duly authorized agent or attorney of record"; (2) that one of those four methods is any manner "as the court . . . may direct"; (3) that "[n]otice may be served by a party to the suit" or "an attorney of record," among others; and (4) that "[t]he party or attorney of record shall certify to the court compliance with this rule in writing over signature and on the filed instrument." Tex. R. Civ. P. 21a. Texas Rule of Civil Procedure 21, to which rule 21a's service provisions refer, is entitled "Filing and Serving Pleadings and Motions" and concerns "[e]very pleading, plea, motion or application to the court"; the rule also employs language clearly indicating its application to pending suits. Tex. R. Civ. P. 21. The fact that former section 74.351(a) implicitly incorporates by reference rule 21a — which concerns service of pleadings, pleas, motions, and requests in the context of lawsuits — further indicates the Legislature's intent that former section 74.351(a)'s service requirements apply after the filing of a health-care-liability claim in court.
See Univ. of Tex. Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 872 (Tex.App.-Houston [1st Dist.] 2007, pet. filed).
Fourth, a physician or health-care provider may not know the details of the allegations against him — or even be assured that he or it will be sued — until the filing of a petition asserting a health-care-liability claim. Chapter 74 requires that the claimant give presuit notice of his health-care-liability claim before the filing of a court claim, but the purpose of the notice provision is simply "to encourage pre-suit negotiations so as to avoid excessive cost of litigation." Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 938 (Tex. 1983); accord Phillips v. Sharpstown Gen. Hosp., 664 S.W.2d 162, 168 (Tex.App.-Houston [1st Dist.] 1983, no writ) (indicating that purpose of predecessor to section 74.051(a) is "to facilitate discussion of the merits of a potential health care claim and thereby initiate amicable settlement negotiations"). If a court claim is later filed, the petition's allegations could, theoretically, differ somewhat from whatever the presuit notice stated. Furthermore, chapter 74 does not require that every person or entity who is given presuit notice actually be sued. See Thompson v. Community Health Inv. Corp., 923 S.W.2d 569, 572 (Tex. 1996) (providing that predecessor to section 74.051(a) does not require "that all those receiving presuit notice be joined in any subsequent suit"). If, as the Poland parties contend, former section 74.351(a)'s service requirement can be fulfilled by providing the expert report to a physician or health-care provider before a health-care-liability claim is filed against him or it in court, then the physician or health-care provider will be put in the position of having to object to the report — and likely of hiring counsel to do so — before having a petition's allegations against which to compare the expert's report or even knowing if they will be sued at all. The Legislature surely did not intend this result.
Finally, "the purposes behind former section 74.351(a)'s adoption were, among other things, to remove unwarranted delay and expense, to accelerate the disposition of non-meritorious cases, and to give hard-and-fast deadlines for the serving of expert reports." Intracare Hosp. N., 222 S.W.3d at 797 (emphasis added). Section 74.351(a)'s expert-report deadline is hard-and-fast only if it is triggered by the filing of a health-care-liability claim against the particular physician or health-care provider in court. Allowing the provision of an expert report that occurs before a court claim is filed to suffice for section 74.351(a) service potentially allows for ambiguity and confusion, as our discussion above and this case demonstrate, rather than promoting certainty. Because such an interpretation would contravene the Legislature's intent in adopting former section 74.351(a), we do not deem the Legislature to have intended it. See Gutierrez, 237 S.W.3d at 873 ("Even if a statute is unambiguous, courts may consider the statute's objective; circumstances of its enactment; its legislative history; . . . [and] consequences of a particular construction. . . .").
2. Method of Service
Additionally, and in any event, nothing shows that the expert report was sent to McLeod by any of the four methods enumerated in rule 21a. The Poland parties' counsel's July 29 letter, by use of the term "enclosed," indicated that the expert report and CV were enclosed in some sort of packaging, but nothing in the letter said by what means the enclosed documents were delivered to McLeod. The letter then stated that counsel would "fax some additional information" to McLeod, but the "additional information" was not specified. Furthermore, counsel's affidavit merely averred that she "replied . . . by sending" the report and CV to McLeod, without stating how the "sending" occurred. None of this evidence demonstrated that the Poland parties served the required items by one of the four methods set out in rule 21a. Service by methods other than those enumerated in rule 21a does not comply with section 74.351(a)'s service requirement. See Acosta v. Chheda, No. 01-07-00398-CV, 2007 WL 3227650, at *2 (Tex.App.-Houston [1st Dist.] Nov. 1, 2007, no pet. h.) (memo. op.) (concluding that emailing of expert's CV did not comply with section 74.351(a)'s service requirements because email is not method of service authorized by rule 21a); Herrera v. Seton Northwest Hosp., 212 S.W.3d 452, 459 (Tex.App.-Austin 2006, no pet.) ("[A] party who sends documents to another by regular mail — which is not authorized by rule 21a — does not comply with the 120-day service requirement in section 74.351(a)."); cf. Gutierrez, 237 S.W.3d at 873 (in rejecting claimant's argument that section 74.351(a)'s service requirement had been complied with because defendant had received expert report from another defendant, rather than from claimant, reasoning, "If we accept appellees' argument that actual receipt (from any source) of expert reports prior to suit's being filed, regardless of the manner in which those reports were furnished, meets the requirements of section 74.351, then we must completely disregard legislative intent as evidenced by the replacement of the word 'furnish' [in prior version of section 74.351(a)] with the word 'serve' [in current version].").
The Poland parties nonetheless rely on the statement of Dr. Ott's counsel to the trial court that "Dr. Ott received it [the expert report] through — he was served with it through his carrier presuit notification." They argue that this statement was an acknowledgment that they "served Dr. Ott [with the report] in the manner that he requested." (Emphasis added.) However, counsel's statement does not say anything about the method of service. Additionally, we note that McLeod's July 13 letter to the Poland parties' counsel requested only that the Poland parties' counsel " provide [him] with [the] medical expert's specific criticisms of our member's care," without indicating how those criticisms should be sent — or even that those criticisms be sent in the form of a section 74.351(a) report and CV. (Emphasis added.) McLeod's July 13 letter is thus no evidence that McLeod — even if he could act and was acting as Dr. Ott's representative for purposes of service under former section 74.351(a), and assuming that he could alter rule 21a's methods of service by request — requested any method of service besides those required by rule 21a.
Nor, contrary to the Poland parties' implication on appeal, does Dr. Ott's counsel's statement, when considered in context, necessarily indicate that Dr. Ott actually received the expert report and CV from his insurer, as the trial court noted in the appealed order's factual recitations. For example, counsel immediately qualified the relied-upon statement when questioned by the trial court:
Court: Ott gets report presuit, directly from his insurance carrier. Attorneys never —
Dr. Ott's attorney: The insurance carrier, yes. The insurance carrier gets them.
(Emphasis added.) Additionally, McLeod's July 13 letter to the Poland parties' counsel indicated that APMC Insurance Services would be investigating the case on behalf of Dr. Ott, and McLeod indicated only that he might "share those concerns" raised by the report — not necessarily the expert report and CV themselves — with Dr. Ott. (Emphasis added.) The trial court would not have abused its discretion in finding, based on this evidence, that nothing showed that Dr. Ott actually received the expert report or CV
from his alleged agent. Finally, the trial court could have relied on Dr. Ott's counsel's statement, made upon his personal knowledge even if not under oath, that his firm had not received the expert report and CV until 123 days after the claims against Dr. Ott had been filed.
Given our conclusion, we need not determine (1) whether the Poland parties substantially complied with former section 74.351(a)'s service requirements because Dr. Ott actually received the expert report and CV from McLeod or (2) whether former section 74.351(a) even allows for substantial compliance of, rather than strict compliance with, its service requirement. Compare, cf., Butler v. Taylor, 981 S.W.2d 742, 743-44 (Tex.App.-Houston [1st Dist.] 1998, no pet.) (holding that claimant substantially complied with service requirement of predecessor to Texas Civil Practice and Remedies Code section 74.051(a) — which required service of presuit notice of claim by certified mail, return receipt requested — by using express mail, rather than certified mail, because defendant acknowledged actual receipt of notice of claim) with Gutierrez, 237 S.W.3d at 872-73 (holding that fact that defendant actually received expert report from another defendant did not relieve claimant of section 74.351(a)'s requirement to serve, himself, the report upon that defendant).
We hold that the trial court did not err in granting Dr. Ott's motion to dismiss under section 74.351(b) and in dismissing with prejudice all claims against him.
The trial court dismissed or struck all of the Poland parties' claims against Dr. Ott, even those couched as something other than health-care-liability claims. However, the Poland parties do not complain on appeal of the dismissal of these additional claims. Additionally, the Poland parties do not challenge on appeal the award of attorney's fees to Dr. Ott. Even were we to construe the Poland parties' brief to complain that no attorney's fees should have been awarded because the motion to dismiss should have been denied, we would overrule that challenge for the same reasons discussed in our opinion.
Conclusion
We affirm the judgment of the trial court.