Opinion
No. 03–12–00675–CV.
2014-06-19
Nagakrishna REDDY, M.D., and New Braunfels Ob/Gyn, P.A., Appellants v. Haley HEBNER and Darrin Charles Scott, Individually and as Next Friend s of R.M.S., a Minor, Appellees.
Kyle M. Burke, R. Brent Cooper, Diana L. Faust, Cooper & Scully, PC, Dallas, TX, Rosemary L. Hollan, San Antonio, TX, for Appellants. Eugene W. Brees, II, Michelle M. Cheng, William O. Whitehurst, Whitehurst Harkness, Brees & Cheng, P.C., Daniel J. Christensen, Austin, TX, Craig W. Carlson, The Carlson Law Firm, Killeen, TX, for Appellees.
Kyle M. Burke, R. Brent Cooper, Diana L. Faust, Cooper & Scully, PC, Dallas, TX, Rosemary L. Hollan, San Antonio, TX, for Appellants. Eugene W. Brees, II, Michelle M. Cheng, William O. Whitehurst, Whitehurst Harkness, Brees & Cheng, P.C., Daniel J. Christensen, Austin, TX, Craig W. Carlson, The Carlson Law Firm, Killeen, TX, for Appellees.
Before Justices PURYEAR, PEMBERTON, and ROSE.
OPINION
DAVID PURYEAR, Justice.
Haley Hebner and Darrin Scott sued Nagakrishna Reddy, M.D., and others alleging that the treatment that Hebner received resulted in the death of her infant daughter, R.M.S. In addition, Hebner and Scott also brought vicarious liability claims against the medical association that Dr. Reddy belonged to, New Braunfels Ob/Gyn, P.A. (the Association). A few months after Hebner and Scott filed their suit, Dr. Reddy and the Association filed a motion to dismiss asserting that Hebner and Scott had failed to timely serve an expert report as required by chapter 74 of the Civil Practice and Remedies Code. SeeTex. Civ. Prac. & Rem.Code § 74.351. After convening a hearing, the district court denied the motion. Dr. Reddy and the Association appeal the denial of their motion, and we will reverse the order of the district court and remand the case.
STATUTORY FRAMEWORK
As mentioned above, this case involves a health-care-liability claim. For health-care claims, section 74.351 of the Civil Practice and Remedies Code sets out some procedural requirements that must be complied with early on or else the claim is subject to dismissal. SeeTex. Civ. Prac. & Rem.Code § 74.351. Specifically, the provision in effect for purposes of this appeal requires that a claimant, “not later than the 120th day after the date the original petition 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.” Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, sec. 74.351(a), 2003 Tex. Gen. Laws 847, 875, amended by Act of June 17, 2005, 79th Leg., R.S., ch. 635, § 1, sec. 74.351(a), 2005 Tex. Gen. Laws 1590, 1590 (former § 74.351(a)) (current version at Tex. Civ. Prac. & Rem.Code § 74.351(a)).
Further, the Code defines “expert report” as “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 by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.” Tex. Civ. Prac. & Rem.Code § 74.351(r)(6).
The current version of the statute requires that an expert report be served “not later than the 120th day after the date each defendant's original answer is filed.” Tex. Civ. Prac. & Rem.Code § 74.351(a).
Moreover, the Code explains that if an expert report has not been “served” within the 120–day deadline, the trial court must dismiss “the claim with respect to the physician or health-care provider, with prejudice to the refiling of the claim,” provided that the “affected physician or health care provider” files a motion to dismiss. Id. § 74.351(b); see Badiga v. Lopez, 274 S.W.3d 681, 685 (Tex.2009) (explaining that there are only two circumstances in which trial court may grant extension to 120–day deadline). The legislature imposed this strict deadline in order to help “reduce excessive frequency and severity of health care liability claims through reasonable improvements and modifications in the Texas insurance, tort, and medical practice systems.” Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11(b)(1), 2003 Tex. Gen. Laws 847, 884. By imposing this requirement, the legislature created “a statute of limitations type deadline within which expertreports must be served.” Ogletree v. Matthews, 262 S.W.3d 316, 319 (Tex.2007). In other words, if the report is not served by the deadline, trial courts may not grant extensions and have no discretion to deny a motion to dismiss filed by a health-care provider. Id. at 319–20. If the report is not timely served, the health-care provider is also entitled to an award of “attorney's fees and costs of court incurred.” Tex. Civ. Prac. & Rem.Code § 74.351(b)(1). If a health-care provider files a motion to dismiss because a report was not timely filed and if the trial court denies the motion, the health-care provider may file an interlocutory appeal challenging the denial of the motion to dismiss. Id. § 51.014(a)(9) (authorizing appeal “from an interlocutory order” that “denies all or part of the relief sought by a motion under Section 74.351(b)”); see Rosemond v. Al–Lahiq, 331 S.W.3d 764, 767 n. 3 (Tex.2011) (per curiam); see also Colquitt v. Brazoria Cnty., 324 S.W.3d 539, 542 (Tex.2010) (per curiam) (explaining that interlocutory orders are generally not appealable).
In addition to describing what happens when a report is not timely filed, the Code also explains what happens if a report is timely served but is insufficient. Tex. Civ. Prac. & Rem.Code § 74.351(c). Specifically, the provision of the Code in effect for purposes of this appeal states that a defendant health-care provider may object to the sufficiency of the report, but the objections must be filed within 21 days of the report being served. Former § 74.351(a) (waiving all objections to sufficiency of report if objections are not timely filed).
When a health-care provider files a motion challenging the adequacy of the report, the court may only grant the motion “if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report.” Tex. Civ. Prac. & Rem.Code § 74.351( l ). Further, the Code explains that if the report is found to be deficient, the trial court “may grant one 30–day extension to the claimant in order to cure the deficiency.” Id. § 74.351(c); see Diaz–Rohena v. Melton, 253 S.W.3d 218, 218–19 (Tex.2008) (per curiam) (explaining that health-care provider may file interlocutory appeal of denial of motion to dismiss on grounds that report was deficient and, therefore, untimely).
The current version of the statute requires the health-care defendant to object “not later than the 21st day after the date the report is served or the 21st day after the date the defendant's answer is filed.” Tex. Civ. Prac. & Rem.Code § 74.351(a).
DISCUSSION
On appeal, Dr. Reddy and the Association contend that the district court erred by denying their motion to dismiss because Hebner and Scott failed to timely serve expert reports. As a preliminary matter, we note that because Hebner and Scott only presented claims for vicarious liability against the Association, they were not required to serve an expert report regarding the Association provided that they filed a timely and sufficient report regarding Dr. Reddy. See Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex.2008) (per curiam). Accordingly, in this appeal, we only consider whether a timely report was filed regarding Dr. Reddy.
Appellate courts review a ruling on a motion to dismiss under subsection 74.351 for an abuse of discretion. TTHR Ltd. P'ship v. Moreno, 401 S.W.3d 41, 44 (Tex.2013). Under this standard, a trial court abuses its discretion if it acts without reference to any guiding rules or principles or acts in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985). In addition, under this standard, appellate courts review legal determinations de novo. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex.2009) (orig. proceeding). Determinations regarding the meaning of section 74.351 are legal questions and are, therefore, reviewed de novo. See Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex.2011). When reviewing whether an expert report complies with the statutory requirements, appellate courts may only consider “the four corners of the expert report” itself. Apodaca v. Russo, 228 S.W.3d 252, 257 (Tex.App.-Austin 2007, no pet.).
Along with their petition, Hebner and Scott also served Dr. Reddy and the Association with an expert report from Barry Schifrin, M.D., and from Michelle Murray, Ph.D., RNC. In his report, Dr. Schifrin did not mention Dr. Reddy or the Association, did not discuss any standard of care pertaining to Dr. Reddy, and did not discuss any causal connection between the treatment offered by Dr. Reddy and any injury sustained by Hebner or R.M.S. In fact, the report does not mention Hebner or R.M.S. at all; instead, the report discussed the treatment of another patient by a doctor who is not part of this appeal. Although Murray's report did pertain to the treatment of Hebner, the report focused on how the nurses charged with Hebner's care failed to comply with the relevant standard of care for nurses. The report briefly mentions Dr. Reddy but only in the context of showing how the nurses did not comply with the standard of care.
The report does not discuss the Association.
The report mentions Dr. Reddy in two sections. The first is in a time line, which states that Dr. Reddy “wrote an Admit Note indicating that Pitocin was at 20 mU,” that Dr. Reddy was paged to come to the office, that Dr. Reddy explained the surgery, that Dr. Reddy was the surgeon, and that Dr. Reddy wrote a note stating that she was going to perform an emergency caesarean section “for placental abruption.” The second section mentioned Dr. Reddy but only in the context of explaining how the nurses did not comply with the governing standard of care. That portion of the report provides as follows:
Nurse Drinan RN also failed to report the early and variable decelerations to Dr. Reddy between 0744 and 0815. The failure to communicate and discontinue the Pitocin was substandard nursing care that was a precursor for added head compression and oxygen deprivation of [R.M.S.].
...
Nurse Drinan also failed to respond properly to early decelerations and/or variable decelerations by her failure to communicate these findings to Dr. Reddy.
At the end of her report, Murray explains that R.M.S. died “as a result of nursing negligence.”
To be effective, an expert report must inform the defendant about the conduct complained of and must provide a basis from which the trial court can determine whether the claims have merit. American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex.2001). The report “must address all the” statutory elements, “and omissions may not be supplied by inference.” Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex.2011). In fact, the supreme court has warned that in certain circumstances, an expert report may be so deficient as to constitute no report at all. Id. at 556. Accordingly, the supreme court set out a “minimal standard” under which a claimant who timely files a deficient report may be entitled to a 30–day extension to cure the deficiencies rather than have his suit dismissed for failing to file a timely expert report. Id. at 557. Under this standard, a 30–day extension may be granted “if the report is served by the statutory deadline, if it contains the opinion of an individual with expertise that the claim has merit, and if the defendant's conduct is implicated.” Id. Similarly, this Court has previously determined that if “a report fails to address the defendant physician, it constitutes no report as to that defendant, and the trial court may not grant a 30–day extension.” Apodaca, 228 S.W.3d at 257; see also Garcia v. Marichalar, 198 S.W.3d 250, 255 (Tex.App.-San Antonio 2006, no pet.) (concluding that report, which did not name defendant doctor or discuss how doctor's treatment did not meet standard of care, “did not constitute a good-faith effort to comply with the statutory requirements”).
As discussed above, the reports filed by Hebner and Scott were timely filed and do contain opinions by seemingly expert individuals asserting that certain claims have merit; however, the claims discussed do not pertain to Dr. Reddy, and Dr. Reddy's treatment is not implicated in either report. See Fung v. Fischer, 365 S.W.3d 507, 529 (Tex.App.-Austin 2012, no pet.) (concluding that report did not implicate defendant when it did not allege breach by defendant or any causal link between defendant's breach and injury), overruled on other grounds by Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex.2013); Rivenes v. Holden, 257 S.W.3d 332, 337–39 (Tex.App.-Houston [14th Dist.] 2008, pet. denied) (determining that trial court abused its discretion by failing to dismiss when expert report did not refer to defendant by name or position, did not explain how any statements in report applied to defendant, did not discuss how defendant failed to meet standard of care, and did not mention how defendant caused any injury); see also Beckwith v. White, 285 S.W.3d 56, 62 (Tex.App.-Houston [1st Dist.] 2009, no pet.) (explaining that defendant's conduct is implicated when expert report is primarily directed to care provided by defendant). Accordingly, those reports fall below the minimal standard and, therefore, do not constitute expert reports as required to maintain a suit against Dr. Reddy and the Association. Because no expert report was timely filed, the district court did not have discretion to deny Dr. Reddy and the Association's motion to dismiss, see Ogletree, 262 S.W.3d at 319–20, and no 30–day extension could have properly been given, see Apodaca, 228 S.W.3d at 257. For that same reason, Dr. Reddy and the Association were entitled to an award of “attorney's fees and costs of court incurred.” SeeTex. Civ. Prac. & Rem.Code § 74.351(b)(1).
In supporting the district court's order, Hebner and Scott contend that Dr. Reddy and the Association waived their right to challenge the sufficiency of the report. Specifically, Hebner and Scott contend that the Code specifies that after an expert report has been filed, “[e]ach 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” within 21 days of the report being served “failing which all objections are waived.” Id. § 74.351(a). However, the 21–day deadline for objecting to the sufficiency of an expert report is only triggered if the report implicates the defendant. Beckwith, 285 S.W.3d at 62; see Rivenes, 257 S.W.3d at 338 (stating that if expert report does not address health-care defendant, defendant can still object to report after passage of 21–day deadline for filing objections); cf. Poland v. Grigore, 249 S.W.3d 607, 616 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (explaining that requirement that party object to sufficiency of report within 21 days does not apply when report was not timely served). As described above, the four corners of the reports do not implicate Dr. Reddy.
Next, Hebner and Scott urge that the district court correctly denied the motion to dismiss because they provided Dr. Reddy and the Association with an expert report regarding Dr. Reddy prior to suit. That report was sent to Dr. Reddy and the Association with Hebner and Scott's pre-suit notice letters. SeeTex. Civ. Prac. & Rem.Code § 74.051(a) (requiring individual to give written notice of claim to health-care provider “at least 60 days before the filing of a suit”). Further, they allege that the prior report satisfied the relevant statutory requirements. In fact, they urge that they served Dr. Reddy and the Association with the same report after learning that they had mistakenly served the wrong report when the motion to dismiss was filed. Accordingly, Hebner and Scott assert that the purposes of the expert requirement (informing defendant of conduct at issue and allowing trial court to see if claim has merit) were met. See Palacios, 46 S.W.3d at 879.
Recently, the supreme court was confronted with the issue of when an expert report may properly be served. See Zanchi v. Lane, 408 S.W.3d 373 (Tex.2013). In that case, Lane sued Dr. Zanchi in April 2010, but Dr. Zanchi was not served with process until September 2010. Id. at 376. In an effort to comply with the 120–day deadline, Lane sent his expert report to Dr. Zanchi before Dr. Zanchi was served. Id. After he was served, Dr. Zanchi filed a motion to dismiss alleging that the report was not timely served. Id. Specifically, Dr. Zanchi urged that section 74.351(a) requires that a report be served on each party but that he was not a party to the suit when the report was mailed because he had not been served with process. Id. When addressing his claims, the supreme court determined that for health-care claims “the term ‘party’ means one named in a lawsuit” and that serving Dr. Zanchi with an expert report prior to Dr. Zanchi being provided with service of process satisfied the statutory requirements because Dr. Zanchi had been named in the suit. Id. at 377; see also id. at 379 (explaining that defining party as one named in lawsuit is consistent with terms of former section 74.351 because it does not affect deadline for expert report, which is 120 days from when petition was filed).
Given the supreme court's directive regarding when an expert report may properly be served, we cannot conclude that the expert report mailed with Hebner and Scott's pre-suit notice letters satisfied the relevant statutory requirements. Although we need not address the matter further, we do note that another appellate court was faced with the issue of whether serving an expert report prior to a lawsuit being filed complies with the governing statutory framework. See Poland v. Ott, 278 S.W.3d 39 (Tex.App.-Houston [1st Dist.] 2009, pet. denied). In that case, the appellate court determined that providing “an expert report before a health-care liability claim is filed in court against the physician or health-care provider does not meet” the statutory requirements. Id. at 46. In reaching that result, the court noted, among other reasons, that subsection 74.351(a) of the Code “speaks in terms of service on a party ..., and it uses the term ‘defendant’ for the physicians and health-care providers whom the expert report implicates.” Id. at 48. Accordingly, the court noted that “[o]ne is not a ‘party’ or a ‘defendant’ until a claim is asserted against one in a suit.” Id. The court also explained that the Code requires “the claimant give presuit notice of his ... claim before the filing of a court claim, but the purpose of the notice provision” is to avoid excessive litigation costs by encouraging pre-suit negotiations. Id. at 50. Further discussing that purpose, the court mentioned that because the former Code provision required objections to be made within 21 days of the report being served, allowing individuals to serve expert reports pre-suit would result in individuals who would not ultimately have been named as a party to a lawsuit to object to the sufficiency of the report within 21 days of it being served. Id. at 50. Finally, the court explained that one of the purposes behind the promulgation of subsection 74.351(a) was to create deadlines for serving expert reports that are hard and fast and that that purpose would be frustrated by allowing service to occur before a suit is filed because the certainty of the deadline would become less clear. Id. at 50–51. For example, the court explained that physicians or health-care providers who receive a report prior to a suit being filed will have to guess “whether the document is intended to satisfy chapter 74 or instead intended simply to be a negotiation tool.” Id.
As support for the district court's order, Hebner and Scott point to University of Texas Health Science Center v. Ripley, 230 S.W.3d 419 (Tex.App.-San Antonio 2007, no pet.). In that case, the claimants initially filed a health-care-liability claim in federal court and then re-filed the suit in state court after the federal case was dismissed. Id. at 420. While the suit was pending before the federal court, the claimants served an expert report. Id. After the state suit was filed, the health-care defendant sought to dismiss the suit on the ground that the claimants did not timely serve an expert report. Id. at 421. On appeal, the court determined that serving the health-care defendants with an expert report during the federal lawsuit was sufficient to comply with the 120–day deadline in the Code. Id. at 422–23.
Although Ripley does support Hebner and Scott's contention that the requirements of the Code can be satisfied before a suit has been filed, we believe the holding in that case is limited by the unique procedural posture of that case. That case involved state and federal litigation of the same health-care claim, and the health-care defendant was a party to both lawsuits. In any event, as discussed above, we believe that the supreme court's recent ruling in Zanchi v. Lane, 408 S.W.3d 373 (Tex.2013), supports the proposition that sending an expert report along with a pre-suit notice cannot satisfy the expert report requirements.
Finally, Hebner and Scott contend that the doctrines of due diligence and relation back apply to health-care claims and should be applied to the “service of the correct Schifrin report and relate it back to the filing of the incorrect expert report.” In making this claim, Hebner and Scott note that “this case presents a unique set of circumstances” because an expert report regarding Dr. Reddy's conduct was prepared, because the report was given to Dr. Reddy and the Association prior to suit, because Hebner and Scott diligently but mistakenly attached the wrong expert report when they filed their original petition, and because Hebner and Scott corrected their mistake by serving the correct report when they discovered the oversight.
As support for the idea that the filing of the correct expert report should relate back to the time when the incorrect one was served on Dr. Reddy and the Association, Hebner and Scott point to a recent supreme court case that they urge held that “the concepts of due diligence and relation back apply to the service of Chapter 74 expert reports.” See Stockton, 336 S.W.3d at 615–17. However, rather than explicitly deciding whether those concepts apply to the service of expert reports, the court simply stated that even if those concepts could apply in the chapter 74 context, it was “not persuaded that the evidence here is legally sufficient to raise the issue.” Id. at 616. Accordingly, we cannot agree with Hebner and Scott's assertion that the supreme court has held that those concepts can be applied to chapter 74 reports.
In any event, it is not entirely clear that the concepts would have any applicability in this case. See id. at 615 (explaining that under doctrine, plaintiff who files petition within limitations period but does not complete service until after statutory deadline “is entitled to have the date of service relate back to the date of filing, if the plaintiff has exercised due diligence in effecting service”). Unlike what happened in Stockton, there is no allegation in this case that Hebner and Scott had any difficulty executing service of process or serving Dr. Reddy and the Association with expert reports; to the contrary, all the parties agree that Hebner and Scott were able to timely execute service and to serve Dr. Reddy and the Association with an expert report. Instead, this case presents a situation in which a report was timely filed, but it was the wrong report.
Although Hebner and Scott urge that the mistake should be overlooked in this case, the legislature has evidenced its intent to not allow mistakes to stop the running of the 120–day deadline. Under the predecessor to chapter 74, a plaintiff could be given an extension to file an expert report when the plaintiff was able to show that he failed to file a timely report due to an accident or mistake. See Act of May 1, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(g), 1995 Tex. Gen. Laws 985, 986 (adding “mistake or accident” provision to article 4590i), repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. However, when the legislature promulgated chapter 74, it specifically chose not to incorporate a similar provision allowing for extensions due to accident or mistake. SeeTex. Civ. Prac. & Rem.Code § 74.351 (providing no exception to 120–day deadline for filing expert report other than by agreement of parties or through one 30–day extension to cure timely filed but deficient report). Although we recognize the harshness of the result in this case, we must also recognize that public policy decisions regarding expert reports are tasks best suited for the legislature, and the choices ultimately made by the legislature are binding on this Court. See Stockton, 336 S.W.3d at 619 (explaining that courts may not rewrite statutes to reach more desirable result); see also Palosi v. Kretsinger, No. 04–08–00007–CV, 2009 WL 331894, at *2–3, 2009 Tex.App. LEXIS 899, at *7 (Tex.App.-San Antonio Feb. 11, 2009, no pet.) (mem. op.) (affirming dismissal of suit for failing to file expert report even though attorney unexpectedly died after suit was filed).
For all these reasons, we must conclude that Hebner and Scott did not timely serve Dr. Reddy or the Association with an expert report and, therefore, that the district court abused its discretion by failing to grant the motion to dismiss filed by Dr. Reddy and the Association. Accordingly, we sustain Dr. Reddy and the Association's issue on appeal.
CONCLUSION
Having sustained Dr. Reddy and the Association's issue on appeal, we reverse the district court's order and remand the cause with instructions to the trial court to award Dr. Reddy and the Association reasonable attorney's fees and costs of court and to dismiss Hebner and Scott's claims against Dr. Reddy and the Association with prejudice. SeeTex. Civ. Prac. & Rem.Code § 74.351(b). Dissenting Opinion by Justice PEMBERTON.
BOB PEMBERTON, Justice, dissenting opinion.
I respectfully dissent from the Court's judgment dismissing the Scotts' suit and remanding for an award of attorney's fees against them. My disagreement with the majority stems from a differing understandingof the Texas Supreme Court's recent jurisprudence guiding our construction of the Medical Liability Act's (MLA's) expert-report requirement.
WHAT THIS CASE IS ABOUT
It is helpful to begin with a clear understanding of the events that frame the issues on appeal. Viewed through the prism of the governing standard of review,
The district court's order denying Dr. Reddy's motion to dismiss is reviewed under an abuse-of-discretion standard, see, e.g., Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (per curiam) (citing American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878–79 (Tex.2001)), which inquires ultimately as to whether the trial court acted arbitrarily, unreasonably, or without reference to guiding rules or principles. See id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985)). Within this overarching inquiry, we review de novo any legal determinations by the district court (e.g., construction of the MLA), see Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex.2011), but defer to any factual determinations to the extent they are supported by evidence. See id. In the absence of findings of fact and conclusions of law—and none were requested or made here—we imply all fact findings necessary to support the district court's order—which, again, denied Reddy's dismissal motion—on any theory of law supported by the record. See Rosemond v. Al–Lahiq, 331 S.W.3d 764, 767–68 (Tex.2011) (per curiam).
• On February 12, 2010, R.M.S., the infant daughter of Darrin Scott and Haley Hebner (collectively, the Scotts), died following a medically problematic birth at New Braunfels's Christus Santa Rosa Hospital. Among the medical professionals allegedly involved with R.M.S.'s care was Dr. Nagakrishna Reddy, M.D., a board-certified OB–GYN.
• In August 2011–roughly one and one-half years after their child's death—the Scotts, through trial counsel,
gave the pre-suit written notice required by the MLA
The Scotts are represented by different counsel on appeal.
to Dr. Reddy and Reddy's professional association (collectively, Reddy
SeeTex. Civ. Prac. & Rem.Code § 74.051.
). Additionally, to elaborate “regarding the details of Dr. Reddy's negligence,” the notice referenced an attached expert report and curriculum vitae of Dr. Barry Schifrin, M.D., a physician board-certified in both OB–GYN and maternal-fetal medicine. I will explore the contents of this report in more detail shortly, but it is worth noting initially that the report is addressed to the Scotts' trial counsel and dated January 25, 2011; indicates at the outset that it is “Re: Hebner/Scott, Haley & [R.M.S.]”; purports to recount medical care provided by Reddy to Ms. Hebner and the child before, during, and after the child's birth; and states opinions as to Reddy's standard of care, various ways in which Reddy allegedly breached it, and how these breaches allegedly caused the child's death. For reasons that will soon become apparent, I will subsequently refer to this report as the “first” Schifrin report.
As the majority correctly observes, the Scotts assert only vicarious-liability theories against the association, so their compliance with the MLA's expert-report requirement as to the association hinges entirely upon their compliance as to Dr. Reddy. See Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex.2008) (per curiam).
• On February 22, 2012, the Scotts, through their trial counsel, filed their suit against Reddy.
There is no dispute that the Scotts asserted a “health care liability claim” against Reddy and were thus required to serve the expert report or reports required by the MLA not later than 120 days thereafter—June 21, 2012.
The Scotts also sued the hospital, but that claim is not pertinent to this appeal.
As the majority observes, this is the deadline under the version of the MLA applicable to this appeal. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, sec. 74.351(a), 2003 Tex. Gen. Laws 847, 875 (amended 2005, 2013) (current version at Tex. Civ. Prac. & Rem.Code § 74.351(a)). For convenience, all subsequent citations to the MLA will refer to the applicable version of that statute.
The MLA allows for an extension of the 120–day deadline by agreement of the parties. SeeTex. Civ. Prac. & Rem.Code § 74.351(a). This exception has no application here.
• The Scotts' trial counsel sought to comply with the expert-report requirement contemporaneously with serving the original petition, attaching to the petition a report from Dr. Schifrin.
I tend to agree with the majority that the second expert report the Scotts served with their original petition, the Murray report pertaining to nursing care, would not aid the Scotts with respect to Reddy. However, one would not need to reach that question under the foregoing analysis concerning the Schifrin reports.
this
report from Dr. Schifrin was decidedly not the same one that had accompanied the August 2011 pre-suit notice letter to Reddy. While similar in nature, structure, and level of detail, and likewise addressed to the Scotts' trial counsel, it bore a different date (August 3, 2011), referenced a different case or client (“ Re: Lannom v. D'andra Bingham, M.D. et al ”), and stated opinions regarding care allegedly provided by a different OB–GYN to a different mother and infant, with different alleged resulting harm (physical injuries rather than death), at a different Christus hospital, located in a different city (Texarkana), further noting that the child's care thereafter had even continued in a different state, at the Arkansas Children's Hospital.
• Reddy did not assert objections to the Schifrin report that had been served with the Scotts' original petition (the “second” Schifrin report).
Instead, on June 29, 2012–about a week following the expiration of the 120–day expert-report deadline—Reddy filed a motion to dismiss predicated on the assertion that the Scotts had failed entirely to serve any expert report as to her.
See id. (“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 id. § 74.351(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 ... 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.”).
• On July 23, 2012, the Scotts filed with the district court a copy of the first Schifrin report with curriculum vitae. Subsequently, on August 7, 2012, the Scotts filed and served a response with attached evidence that included the first Schifrin report, thereby serving that report on Reddy. The attached evidence also included proof that the first Schifrin report had additionally been served on Reddy via both certified mail and regular mail with the Scott's pre-suit notice letter back in August 2011. Reddy did not controvert this evidence. In their response, the Scotts urged that the district court deny Reddy's motion and, in the alternative, grant them a 30–day extension to cure any deficiencies.
• Following a hearing at which no additional evidence was presented, the district court denied Reddy's motion to dismiss without specifying the grounds on which it relied. No findings of fact and conclusions of law were requested or made. Reddy appealed the district court's order.
See id. § 51.014(a)(9).
In sum, this is a case about health-care-liability claimants who timely serve a defendant with an expert report that facially and quite obviously addresses a different case altogether. It is also a case where there is uncontroverted evidence that: (1) the claimants had obtained an expert report addressed to the incident case (the first Schifrin report) well in advance of the 120–day deadline (in fact, as much as a year or more before they filed suit); (2) even served that report on the defendant before filing suit; and (3) served that report on the defendant again after the 120–day deadline had run but before the district court ruled on the defendant's dismissal motion. Additionally, to the extent such facts would be necessary to support the district court's order,
the evidence in this case would support a reasonable inference that the claimants' service of only the inapplicable report during the 120–day period and not the applicable report was attributable to a misunderstanding by claimants' counsel throughout that period that she had actually served the applicable report instead.
See Rosemond, 331 S.W.3d at 767–68 (discussing implied fact findings).
In addition to the inferences that the district court could reasonably have drawn from the existence of the two Schifrin reports and the fact that the first Schifrin report had been served with the Scotts' pre-suit notice letter, Reddy presented evidence of a July 2, 2012 faxed letter from the Scotts' trial counsel in which counsel, responding to Reddy's dismissal motion, reminded Reddy's counsel that “Plaintiffs' expert reports” had been filed and served with their original petition. With this letter, counsel transmitted a copy of the Scotts' original petition with proof of service and the two expert reports that had accompanied the petition—which, again, included the second Schifrin report rather than the first. This correspondence would tend to confirm that the Scott's trial counsel had labored—and, as late as July 2, 2012, had continued to labor—under a misunderstanding as to which of the two Schifrin reports had accompanied the original petition served on Reddy.
Another key variable framing the issues on appeal is the content of the applicable report itself. The Scotts argue, and I agree, that the first Schifrin report satisfies the MLA's requirements for the “expert report” with which they had to serve Reddy by the 120–day deadline. An “expert report” under the MLA must “represent an objective good faith effort to comply with the [Act's] definition of an expert report,”
which requires that, with respect to each of the elements of duty, breach, and causation, the expert supplies sufficient information to inform the defendant of specific conduct the expert has called into question and provides a basis for the court to conclude that the claimants' claims have merit.
The first Schifrin report satisfies this standard (or, alternatively, the district court would not have abused its discretion in concluding that it satisfies it), informing Reddy that Dr. Schifrin, a physician board-certified in both OB–GYN and maternal-fetal medicine,had concluded that Reddy had failed to meet the applicable standard of care by, inter alia, failing to monitor for and appropriately respond to signs of fetal distress and complications during labor—including deprivation of R.M.S.'s oxygen supply—causing the child severe neurological damage, organ damage, and death, and cited specific alleged acts and omissions by Reddy.
See, e.g., Scoresby v. Santillan, 346 S.W.3d 546, 555–56 (Tex.2011) (citing Tex. Civ. Prac. & Rem.Code § 74.351( l ), (r)(5), (6); Palacios, 46 S.W.3d at 879) (summarizing the analysis); Hebert v. Hopkins, 395 S.W.3d 884, 889–91 (Tex.App.-Austin 2013, no pet.) (same).
That the Scotts were able to obtain an “expert report” whose contents satisfy the statutory requirements, and were able to do so well in advance of the 120–day deadline, are of tremendous potential significance under the statutory scheme the Legislature created in the MLA. As with the MLA's statutory predecessor, the Medical Liability and Insurance Improvement Act (MLIIA), the Legislature's goal in the MLA was to make health care more available and affordable by reducing the cost of health-care-liability claims, and to that end it has imposed the expert-report requirements in an attempt to deter, identify, and eliminate frivolous lawsuits early in litigation.
In so doing, the Legislature has in essence determined that a claimant's inability to provide an MLA-compliant expert report to support its claim within the required time frame “ ‘means that the claim is either frivolous, or at best has been brought prematurely.’ ”
See, e.g., Zanchi v. Lane, 408 S.W.3d 373, 378–79 (Tex.2013); Scoresby, 346 S.W.3d at 552.
But, as the Texas Supreme Court has emphasized in recent years, the converse is also true: if the claimant can provide an MLA-compliant expert report within the relevant time frame, it signals that the claim is “of potential merit,” and the court has concluded that the Legislature intended to preserve those kind of claims for further adjudication
Scoresby, 346 S.W.3d at 554 (quoting Palacios, 46 S.W.3d at 878); see also Zanchi, 408 S.W.3d at 381, 383 (Hecht, J., concurring) (“In Section 74.351(a), the Legislature has in effect authorized a presumption that a claim lacks merit and should be dismissed if the claimant cannot provide a supporting expert report within 120 days after filing suit.”).
and not merely “to dispose of claims regardless of their merits.”
Zanchi, 408 S.W.3d at 378–79 (quoting Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex.2011) (plurality op.) (citing Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11(b)(1), (3), 2003 Tex. Gen. Laws 847, 884)); accord Leland v. Brandal, 257 S.W.3d 204, 208 (Tex.2008) ( “In enacting section 74.351, the Legislature struck a careful balance between eradicating frivolous claims and preserving meritorious ones ....”).
And the Legislature could not have done otherwise, the high court has added, because that would potentially imperil the constitutionality of the expert-report requirement itself:
Scoresby, 346 S.W.3d at 554.
It must be remembered that there are constitutional limitations upon the power of courts to dismiss an action without affording a party the opportunity for a hearing on the merits of his cause, and those limitations constrain the Legislature no less in requiring dismissal.
Id. (internal citations, quotations, and ellipses omitted); see also Stockton, 336 S.W.3d at 618 (observing that when construing the MLA, as with other statutes, “[w]e presume ... the Legislature intends to comply with the state and federal constitutions” and that “ ‘we are obligated to avoid constitutional problems if possible.’ ” (quoting Brooks v. Northglen Ass'n, 141 S.W.3d 158, 169 (Tex.2004), and citing Tex. Gov't Code § 311.021(1))).
Furthermore, as the Scotts point out, these considerations have, with seemingly increasing frequency, informed the Texas Supreme Court's construction and application of the MLA's expert-report requirements in recent years, including Stockton's recognition that the court “would, of course,” construe the MLA expert-report requirements to incorporate a due-diligence exception to the 120–day deadline if the requirement would otherwise create an unconstitutional impossible condition;
to Zanchi's holding that a defendant becomes a “party” whom the claimant can serve with an expert report, so as to comply with the 120–day deadline, when the defendant is named in the lawsuit and does not additionally require that the claimant also secure service of process or an appearance;
Stockton, 336 S.W.3d at 618.
to the high court's holdings in Scoresby and Samlowski regarding the availability of extensions to cure “deficiencies” in reports.
Zanchi, 408 S.W.3d at 378–79; see also id. at 381–83 (Hecht, J., concurring) (urging that MLA's use of “party” is ambiguous and that the above-mentioned legislative intent and constitutional considerations and not any “abstract” meaning of the term should be the primary guides in construing it).
Although it is true that the supreme court (and, as far as anyone can tell, any lower courts) have not had occasion to apply the MLA's expert-report requirements to circumstances quite like those presented in this case (which I anticipate all concerned would prefer not to see repeated often), I would respectfully suggest that this lower appellate court ought nonetheless to take some hints from the direction of the high court's jurisprudence lately.
See Scoresby, 346 S.W.3d at 554, 556–57; Samlowski, 332 S.W.3d at 410–11 (plurality op. of Medina, J., joined by Jefferson, C.J., and Hecht, J.); id. at 416 (Guzman, J., joined by Lehrmann, J., concurring in the judgment); see also Scoresby, 346 S.W.3d at 549 & nn. 7–8, 554 (recognizing this to be the majority holding of the Samlowski court and noting its underlying rationales).
As a final observation regarding the record in this case, it is true, as the majority indicates, that the “four corners” of a challenged expert report remains a chief evidentiary focus in reviewing trial court decisions applying the MLA's expert-report requirements.
However, in Samlowski, a majority of the Texas Supreme Court held that extrinsic evidence—including the existence of a report that cures defects in the challenged report—is also relevant to whether the trial court may or must grant a 30–day extension in lieu of finally dismissing the suit for failure to serve an MLA-compliant expert report, at least to the extent that this evidence is before the trial court by the time it rules on the motion to dismiss.
See Bowie Mem'l Hosp., 79 S.W.3d at 53; see also Scoresby, 346 S.W.3d at 554 (observing that MLA's extension mechanism “shift[ed] the focus from the claimant's conduct to the report's contents.”).
In this case, the existence and contents of the first Schifrin report were before the district court by the time it ruled on Reddy's dismissal motion. Accordingly, the existence and contents of that report are potentially relevant to our review of the court's order—and, I ultimately conclude, they are highly relevant under the Texas Supreme Court's recent jurisprudence construing the MLA's expert-report requirement.
See Samlowski, 332 S.W.3d at 411 (plurality op. of Medina, J., joined by Jefferson, C.J., and Hecht, J.) (concluding that plaintiffs can (and must) “make a record” demonstrating that deficiencies in a challenged report “would have been cured” in order to preserve error from denial of thirty-day extension under section 74.351(c) and that claimant could do so through a post-judgment motion); id. at 422–23 (Johnson, J., joined by Green and Willett, JJ., dissenting to the judgment) (agreeing that such extrinsic evidence is relevant to the availability of an extension but insisting that such evidence must be presented to the trial court before it rules on motions to dismiss); cf. id. at 414–15 (Guzman, J., joined by Wainwright and Lehrmann, JJ., concurring in the judgment) (arguing that availability of extension should be determined from four corners of challenged report alone).
So, to summarize the factual and procedural circumstances framing the issues on appeal, the key question boils down to whether the MLA left the district court discretion to do anything but immediately dismiss the Scotts' health-care-liability claim against Reddy despite uncontroverted evidence that they had successfully obtained an MLA-compliant expert report indicating the claim's potential merit well in advance of the 120–day deadline (indeed, well in advance of even filing suit) and had even served this report on Reddy before filing suit, yet through a misunderstanding of counsel had ended up serving Reddy only with a plainly inapplicable report from a different case during the 120–day period after they filed their original petition. In short, this case is about whether the MLA mandates immediate dismissal of a claim that the Act would deem potentially meritorious for the sole reason that, as the majority aptly puts it, the Scotts' counsel served “the wrong report.”
I disagree with the majority that the MLA's expert-report requirement works this way, at least as the Texas Supreme Court has construed it lately.
Reddy v. Hebner, No. 03–12–00675–CV, 435 S.W.3d 323, 330–31, 2014 WL 1774976 (Tex.App.-Austin May 2, 2014, no pet. h.) (mem. op.), available at http:// www. 3 rdcoa. courts. state. tx. us.
HOW THE MLA APPLIES TO THIS CASE
To conclude that the MLA compels immediate dismissal of the Scotts' health-care-liability claim against Reddy, the majority relies on three principal propositions. First, emphasizing Zanchi's holding that a defendant becomes a “party” under the MLA when named in the claimant's suit, the majority reasons that because Reddy was not yet a “party” in this sense when the Scotts gave their pre-suit notice, service of the first Schifrin report with that notice did not suffice as service of the report on “that party or the party's attorney,” as the MLA contemplates.
I will not quarrel with the proposition that pre-suit service of an expert report on a future defendant, in itself, would not discharge a claimant's obligation under the MLA to serve an expert report on “that party or the party's attorney,” especially since this Court (with me writing) previously reached the same conclusion regarding service of an expert report before a defendant is made a “party,” albeit while applying a notion of “party” eventually rejected in Zanchi.
.435 S.W.3d at 329–30; seeTex. Civ. Prac. & Rem.Code § 74.351(a).
See Carroll v. Humsi, 342 S.W.3d 693, 698–700 (Tex.App.-Austin 2011, no pet.), overruled in part by Zanchi, 408 S.W.3d at 377–79.
Accepting this proposition, the sole report the Scotts can be considered to have served on Reddy by the 120–day deadline would be the second Schifrin report. The second Schifrin report, unlike the first, unquestionably does not represent the required “good faith effort” to comply with the MLA's definition of “expert report,” at least as to Reddy, because its subject matter, again, concerns an entirely different case and parties. Consequently, the MLA would, all other things being equal, indeed require dismissal of the Scotts' claim against Reddy on this basis.
See Scoresby, 346 S.W.3d at 554 (observing that under MLA, “the same consequences attend serving an inadequate report that ‘does not represent an objective good faith effort’ to comply with the Act's requirements” as do failure to serve a report at all—dismissal).
This brings us to the majority's second chief point of emphasis: The MLA, unlike the predecessor MLIIA, does not provide an extension or cure mechanism tied to “accident or mistake,” per se, a theory or ground that would have had obvious relevance here.
Again, no dispute with that proposition from me. In the MLA, the Legislature replaced the MLIIA's mandatory 30–day “grace period” to cure noncompliance found attributable to “accident or mistake,” which was available even when a claimant missed the expert-report deadline altogether, with an extension mechanism that differs in two key ways.
Slip op. at 13.
First, the MLA “distinguishes between missing a deadline altogether and serving an inadequate report” (i.e., a report that is timely served but does not represent an objective good faith effort to comply with the Act's requirements) and mandates immediate dismissal for the former.
Cf. Tex. Civ. Prac. & Rem.Code § 74.351, with Act of May 1, 1995, 74th Leg., R.S., ch. 140, § 1, sec. 13.01(g), 1995 Tex. Gen. Laws 985, 986, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884.
Second, as to timely served but “inadequate” reports, the MLA, as previously alluded, authorizes trial courts to grant a single 30–day extension in the following circumstances:
Scoresby, 346 S.W.3d at 553–54.
If an expert report has not been served [by the 120–day deadline] because elements of the report are found deficient, the court may grant one 30–day extension to the claimant in order to cure the deficiency.
But while the MLA “shift[s] the focus from the claimant's conduct to the report's contents” as the basis for an extension, legislative intent to preserve some sort of “appropriate delay in finally dismissing a claim for want of an adequate report,” as the Texas Supreme emphasized in Scoresby, “is undiminished.”
And the MLA's specific extension mechanism, the Scoresby court further observed, reflects the Legislature's recognition “that when an expert report can be cured in thirty days, the claim is not frivolous” and should not (and cannot, in light of constitutional limitations) be dismissed as such.
Scoresby, 346 S.W.3d at 554.
As the supreme court summed it up, “An inadequate expert report does not indicate a frivolous claim if the report's deficiencies are readily curable.”
Id.
And, applying similar reasoning, a majority of the Texas Supreme Court in Samlowski held that trial courts must grant a thirty-day extension where claimants can show that deficiencies in expert reports are curable within that time and “err on the side of granting the claimants' extensions to show the merits of their claims.”
Id. at 556.
Samlowski, 332 S.W.3d at 410–11 (plurality op. of Medina, J., joined by Jefferson, C.J., and Hecht, J.); id. at 416 (Guzman, J., joined by Lehrmann, J., concurring in the judgment); see also Scoresby, 346 S.W.3d at 549 & nn. 7–8, 554 (recognizing this to be the majority holding of the Samlowski court).
If curability is thus the key for obtaining a 30–day extension under the MLA, the evidence before the district court when it ruled demonstrated that the Scotts were entitled to one as a matter of law. That is, the evidence demonstrated conclusively that the Scotts could, within a 30–day extension period, cure their initial failure to serve Reddy with an expert report representing the required “good faith effort” to comply with the MLA's definition of “expert report” by the 120–day deadline—they needed only serve Reddy (again) with the first Schifrin report. In fact, the evidence before the district court demonstrates conclusively that the Scotts already had cured that failure by the time that court ruled. Assuming that the district court could credit the Scotts with this cure, it would not have abused its discretion in overruling Reddy's dismissal motion, as the ruling would be supported by a theory that the Scotts were entitled to a 30–day extension to cure their failure to serve an MLA-compliant expert report within the 120–day period and had already cured it before the court ruled, obviating the need for the court to order any additional time for cure.
But these observations bring us to the third proposition on which the majority principally relies, which is ultimately the core of its analysis—echoing Reddy's chief argument, the majority reasons that the Scotts were not entitled to any such opportunity for cure, nor can they have their cure credited, because the second Schifrin report, while served within the 120–day period, was the legal equivalent of the Scotts having missed the 120–day deadline altogether as to Reddy, leaving the district court no discretion but to dismiss the Scotts' suit immediately and award Reddy her attorney's fees.
The essence of the majority's analysis is that this case falls under the line of precedents recognizing a third category of noncompliance with the MLA's expert-report requirement lying somewhere between the late-or-entirely-absent expert report scenario and the “deficient”—but-curable report scenario, but having the same consequences of immediate dismissal as the former category—an instrument timely served in purported compliance with the MLA's expert-report requirement is so inadequate substantively that it is deemed “no report” as to a defendant at all, even a “deficient” one. The precise distinction between a “no report” report and a merely “deficient” report has vexed Texas courts for years, but the Texas Supreme Court in Scoresby formulated the following test to guide that inquiry:
SeeTex. Civ. Prac. & Rem.Code § 74.351(b); Ogletree v. Matthews, 262 S.W.3d 316, 319–20 (Tex.2007).
[A] thirty-day extension to cure deficiencies in an expert report may be granted if [1] the report is served by the statutory deadline, [2] if it contains the opinion of an individual with expertise that the claim has merit, and [3] if the defendant's conduct is implicated.
Applying this standard, the majority acknowledges that the second Schifrin report was timely served and “contain[s] opinions by [a] seemingly expert individual[ ] asserting that certain claims have merit,” but deems it singularly fatal that the report does not “implicate” Reddy's conduct in the sense of complaining explicitly about her or the medical care she provided the Scotts. I cannot quarrel with the obvious—the second Schifrin report does not discuss Reddy or the medical care she provided the Scotts because, again, it pertains to entirely different parties in an entirely different case. However, for at least two related reasons, I disagree that this fact could be dispositive or otherwise alter the conclusion that the district court did not abuse its discretion in overruling Reddy's dismissal motion.
See Scoresby, 346 S.W.3d at 557; see also Ogletree, 262 S.W.3d at 320–21 (rejecting argument that merely deficient report was “no report,” such that trial court lacked any jurisdiction to grant a thirty-day extension).
First, as previously suggested, this case is profoundly different factually and procedurallyfrom Scoresby and progeny like our recent Fung decision—indeed, this case appears to be without precedent in the annals of cases applying the MLA's expert-report requirement to date. The test articulated in Scoresby and applied in cases like Fung contemplates two basic factual scenarios: (1) as suggested in Scoresby itself, a claimant serves a document “utterly devoid of substantive content,”
such as “a sheet of paper with the two words, ‘expert report,’ written on it” or the thank-you-letter for a patient referral at issue in Lewis v. Funderburk;
Scoresby, 346 S.W.3d at 549.
or (2) a purported expert report, even while perhaps adequate as to one or more other defendants in a case, fails to accuse the particular defendant seeking dismissal of doing anything wrong, as occurred in Fung
Id. at 556 (citing Lewis v. Funderburk, 191 S.W.3d 756, 762–63 (Tex.App.-Waco 2006) (Gray, C.J., dissenting), rev'd, 253 S.W.3d 204 (Tex.2008)).
and as the Scoresby court presumably contemplated in requiring that the challenged report “implicate” the defendant's conduct.
See Fung v. Fischer, 365 S.W.3d 507, 534–37 (Tex.App.-Austin 2012, no pet.), overruled on other grounds, Certified EMS, Inc. v. Potts, 392 S.W.3d 625 (Tex.2013).
The common feature of both scenarios is that a “cure” of this sort of expert-report noncompliance would be tantamount to the creation of an “entirely new report[ ] based on changed facts” after the 120–day deadline had already expired,
See Scoresby, 346 S.W.3d at 557.
contrary to the Legislature's judgment that a claimant's inability to procure any expert report as to a defendant by that deadline signals a frivolous or premature claim that should be dismissed immediately.
Fung, 365 S.W.3d at 536.
But that is not the situation here. Here, by contrast, the Scotts successfully obtained an MLA-compliant expert report addressing Reddy's conduct well in advance of the 120–day deadline and somehow ended up timely serving a report from an altogether different case—the “wrong case”—instead. In short, this case represents a fourth and heretofore unprecedented category of MLA expert-report noncompliance that the standard articulated in Scoresby and applied in Fung does not squarely address.
See, e.g., Apodaca v. Russo, 228 S.W.3d 252, 257–58 (Tex.App.-Austin 2007, no pet.); see Scoresby, 346 S.W.3d at 554 (quoting Palacios, 46 S.W.3d at 878); see also Zanchi, 408 S.W.3d at 381, 383 (Hecht, J., concurring).
The second reason I conclude that the absence of an explicit reference to Reddy in the second Schifrin report could not be dispositive, and perhaps the more important one, is the Texas Supreme Court's reasoning underlying the Scoresby test. As the supreme court explains there, the Scoresby test is not intended to be a restrictive “weed-out” mechanism, let alone one directed to circumstances like those here, but is to be a “minimal standard” embodying an expansive view of the range of “deficient” reports for which an opportunity for cure is potentially available.
This “minimum standard” is warranted, the court reasoned, by two legislative purposes underlying the MLA. The first is the goal of reducing the expense of health care liability claims, which, the court observed, is thwarted when the same suit can give rise to successive appeals contesting both the trial court's discretion to grant a thirty-day extension (i.e., fights over whether a report is merely “deficient” and potentially curable or so bad that it is “no report” and incurable) and the trial court's ultimate order on a motion to dismiss.
See Scoresby, 346 S.W.3d at 557.
By defining the “deficient” report category broadly, in other words, the court sought to correspondingly reduce the volume of cases in which defendants can colorably contend that a report is “no report” and effectively appeal 30–day extensions on that basis. The second legislative policy underlying the Scoresby test is the one we have already emphasized—to preserve potentially meritorious claims for further adjudication, and not merely “dispose of claims regardless of their merits,”
See id. at 556–57.
and to that end make extensions available when a deficiency can be cured in thirty days because “[a]n inadequate expert report does not indicate a frivolous claim if the report's deficiencies are readily curable.”
Id. at 554.
And it was for these same reasons, the Scoresby court added, that it had held in Samlowski that trial courts must grant a thirty-day extension where claimants can show that deficiencies in expert reports are curable within that time and “ ‘err on the side of granting the claimants' extensions to show the merits of their claims.’ ”
Id. at 554, 556.
Id. at 549 n. 7 (quoting Samlowski, 332 S.W.3d at 411 (plurality op. of Medina, J., joined by Jefferson, C.J., and Hecht, J.) (quoting id. at 416 (Guzman, J., joined by Lehrmann, J., concurring in the judgment))), 554.
These considerations lead me to conclude that the second Schifrin report must be classified as a report whose “elements ... are found deficient” deemed potentially curable under the MLA
(and that already has been cured, as previously indicated), as opposed to being the legal equivalent of “no report,” as the majority concludes. With respect to the Scoresby test's specific requirement that “the defendant's conduct [be] implicated” in the report, I would hold that this requirement is inapposite under the circumstances presented here and because blindly applying it to these circumstances unmoors the test from the underlying legislative policies and constitutional considerations it was intended to effectuate. Dismissal of the Scotts' claim against Reddy under the circumstances they have established here represents a dismissal not because the claim is frivolous—to the contrary, the Scotts procured an expert report in advance of the 120–day deadline that would demonstrate the potential merit of their claim in the eyes of the MLA—but solely because their attorney served the “wrong” report during the 120–day period and not the right one. While this result may encourage full employment of conscientious legal assistants and staff to aid and watch over busy attorneys (as if the Bar needs to be further reminded of their importance), it is inconsistent with the legislative purposes and constitutional justification for the MLA's expert-report requirement as the Texas Supreme Court has explained them recently.
SeeTex. Civ. Prac. & Rem.Code § 74.351(c).
This construction of the MLA admittedly creates some potential tension between subsection (c) of section 74.351, the provision authorizing 30–day extensions where “elements of the report are found deficient,”
and the objection provision within subsection (a), which requires “[e]ach defendant physician or health care provider whose conduct is implicated in a report” to file and serve “any objection to the sufficiency of the report” within 21 days or waive the objection.
See id.
We have previously suggested that the deficient-but-potentially-curable reports under subsection (c) correspond to the reports to which “sufficiency” objections must be raised under subsection (a),
See id. § 74.351(a).
and the Scoresby court presumably was drawing the same connection in generally requiring that “the defendant's conduct [be] implicated” in order for the report to fall under subsection (c).
See, e.g., Fung, 365 S.W.3d at 516.
Such potential tension between subsections (a) and (c) is easily resolved in either of two ways. First, for the same reasons I would conclude that the “implication” component of the Scoresby test is inapposite in this case, I would conclude that the present circumstances represent a unique instance in which an expert report that does not “implicate” a defendant, in the sense of explicitly referring to the defendant or discussing his or her conduct, is nonetheless considered to be a “deficient” report potentially susceptible to being cured. Assuming this, the defendant's deadline for objecting would run from the date the claimant served the defendant the correct report discussing the defendant's conduct, similar to Zanchi's reasoning regarding expert reports served while a defendant is a “party” (i.e., named in a lawsuit) but has not yet been served with process.
See Scoresby, 346 S.W.3d at 557.
Alternatively, I would conclude that under the circumstances here, whether the second Schifrin report “implicates” Reddy's conduct for purposes of subsection (a) and the Scoresby test must take account of how Reddy and counsel would have reasonably perceived that report after having previously been served with the first Schifrin report with the Scotts' pre-suit notice—as a quite obvious attempt to serve the same report again that somehow went awry. Again, that is not to say that service of the first Schifrin report with the pre-suit notice in itself satisfied the MLA's expert-report requirements, but that fact would nonetheless seem relevant to whether Reddy should be deemed to have notice of a report “implicating” his conduct and to which he should object. Under either view, Reddy would have waived her objections to the sufficiency of the first Schifrin report, and those objections, as previously explained, would have been without merit in any event.
See Zanchi, 408 S.W.3d at 379–80.
CONCLUSION
The majority “recognize[s] the harshness of the result in this case,” but is steadfast in deferring to what it perceives to be the Legislature's policy judgments reflected in the MLA's expert-report requirement.
I respect and share that deference to the Legislature's policymaking prerogative. However, informed by the Texas Supreme Court's recent guidance in construing and applying the MLA's expert-report requirement, I disagree that the Legislature intended or could intend for a claim like the Scotts', under circumstances like they have established here, to be deemed frivolous and dismissed without opportunity for cure or further adjudication. I would instead affirm the district court's order.