Summary
In Seifert, the plaintiff served his expert report outside the statutory deadline, and defendants filed their motion to dismiss more than two years later to complain about plaintiff's failure to timely file the expert report.
Summary of this case from Alexander v. Colonnades Health Care Ctr. Ltd.Opinion
No. 05-08-00655-CV
Opinion issued December 23, 2008.
On Appeal from the 162nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. 05-00953-I.
Before Chief Justice THOMAS and Justices MORRIS and FRANCIS.
MEMORANDUM OPINION
John Dupont Seifert, M.D. and The Texas Regional Cosmetic Surgery Center, Inc. appeal the trial court's order denying their motion to dismiss Arthur F. "Rick" Price's medical malpractice claims for failing to timely serve them with an expert report. The dispositive issue is whether the trial court abused its discretion in determining that appellants waived their right to dismissal. For reasons set out below, we conclude appellants did not waive their right to move for dismissal. Accordingly, we reverse the trial court's order and remand for proceedings consistent with this opinion.
On January 28, 2005, appellee sued appellants, alleging Dr. Seifert lacerated his eye twice during cosmetic surgery and performed procedures in a second surgery for which appellee had not consented. Appellee alleged claims for negligence, res ipsa loquitor, assault and battery, gross negligence, common law fraud, joint enterprise/conspiracy, and spoliation of evidence. Later, he amended his petition to add negligent hiring and supervision, negligent misrepresentation, and DTPA violations.
Appellee was statutorily required to serve appellants with a copy of an expert report and curriculum vitae no later than May 28, 2005 — 120 days after filing his claim. See Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590 (current version at Tex. Civ. Prac. Rem. Code Ann. § 74.351(a) (Vernon Supp. 2008)). Appellee did not serve the report until August 2005, outside the statutory deadline. More than two years later, in November 2007, appellants filed their motion to dismiss all claims for appellee's failure to timely file the report. Additionally, appellants requested the trial court determine that appellee's claims of res ipsa loquitor, assault and battery, fraud/negligent misrepresentation, negligent hiring and supervision, and DTPA violations were "impermissible 'recasting' of health care liability claims."
After a hearing, the trial court denied the motion, finding that appellants had waived their right to move for dismissal by taking "abundant actions in preparation for trial" without raising a question about the timeliness of the report in the previous two-and-a-half years. In particular, the trial court pointed to the following actions by appellants: (1) serving written discovery and responding to written discovery and discovery motions; (2) filing and arguing two sets of special exceptions on these claims; (3) signing multiple scheduling orders; (4) designating multiple medical experts for trial testimony; (5) taking five of nine total depositions, including that of appellee's medical expert who prepared the chapter 74 report at issue; (6) passing six trial settings and agreeing to specially set the seventh; (7) filing multiple dispositive motions with no mention of dismissal based on chapter 74; and (8) filing a motion to strike appellee's expert's trial testimony based on the Robinson/Daubert standard. The trial court also assumed, without ruling, that all claims were health care claims for which appellants had waived their right of dismissal.
We review a trial court's decision on a motion to dismiss under section 74.351 for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Park v. Lynch, 194 S.W.3d 95, 97 (Tex.App.-Dallas 2006, no pet.). A trial court abuses its discretion when it acts arbitrarily or unreasonably without reference to any guiding rules and principles. Park, 194 S.W.3d at 98. We defer to the trial court's factual determinations but review questions of law de novo. Davis v. Webb, 246 S.W.3d 768, 771 (Tex.App.-Houston [14th Dist.] 2008, no pet.).
Chapter 74 requires a health care liability claimant to serve providers with an expert report and curriculum vitae within 120 days of filing the claim. See Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590 (current version at Tex. Civ. Prac. Rem. Code Ann. 74.351(a) (Vernon Supp. 2008)). If the claimant fails to timely serve a report, the trial court shall grant the provider's motion to dismiss the claim, and the failure to do so is subject to an interlocutory appeal. Tex. Civ. Prac. Rem. Code Ann. §§ 74.351(b), 51.014(a)(9) (Vernon 2008 Supp. 2008). A provider may, however, waive the right to dismissal. Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex. 2003).
Waiver is defined as "an intentional relinquishment of a known right to intentional conduct inconsistent with claiming that right." Id. Waiver is largely a matter of intent, and for implied waiver to be found through a party's actions, intent must be clearly demonstrated by the surrounding facts and circumstances. Id. There can be no waiver of a right if the person sought to be charged with waiver says or does nothing inconsistent with an intent to rely upon such right. Id. Waiver is ordinarily a question of fact, but when the surrounding facts and circumstances are undisputed, as in this case, the question becomes one of law. Id.
The controlling case on this issue is Jernigan, which we perceive to be indistinguishable from the present case. Dr. Jernigan waited 600 days after receiving expert reports to move for dismissal. During that time, Dr. Jernigan engaged in discovery, filed a motion for summary judgment on other grounds, and amended his answer to delete references to the plaintiff's failure to follow statutory prerequisites to suit. The supreme court concluded these actions did not constitute action inconsistent with the intent to rely upon the right to dismissal. Id. at 157.
Here, as in Jernigan, a considerable amount of time elapsed before appellants moved to dismiss. During that time, appellants engaged in discovery, filed a combined traditional/no-evidence motion for summary judgment on other grounds, argued special exceptions, passed trial settings, and designated experts for trial. But none of these actions, singularly or cumulatively, is clearly inconsistent with the intent to rely on their right to seek dismissal. Attempting to learn more about the case through discovery does not demonstrate an intent to waive the right to dismiss, nor does the filing of motions for summary judgment on other grounds. See id. The motions were not heard or ruled upon and no conventional trial on the merits had begun before dismissal was sought. See id. Finally, signing scheduling orders or taking acts preparatory to trial to conform with a trial court's scheduling order does not clearly evince an intent inconsistent with the right to seek dismissal.
We are unpersuaded by appellee's argument that this case is more analogous to Spinks v. Brown, 211 S.W.3d 374 (Tex.App.-San Antonio 2006, no pet.) and In re Sheppard, 197 S.W.3d 798 (Tex.App.-El Paso 2006, orig. proceeding [mand. denied]). Each of those cases had a distinguishing fact not present here. In Spinks, there had been a full jury trial on the merits and an appeal before the defendant raised any objection to the expert report. 211 S.W.3d at 378. Moreover, during the hearing on the motion to dismiss, the defendant's counsel informed the court that his client intentionally chose not to raise the issue before the first trial. Id. In Sheppard, the health care providers had announced ready for trial. 197 S.W.3d at 802.
Considering the undisputed facts in this case, we conclude as a matter of law that appellants did not waive their right to seek dismissal of the health care liability claims. The trial court abused its discretion in denying the motion to dismiss those claims.
Appellants next argue that all of appellee's claims were health care liability claims and should be dismissed. We do not address this issue. As noted previously, in its order, the trial court "assum[ed], without ruling" that all the claims were health care liability claims, presumably because such a decision was unnecessary in light of its determination that appellants waived their right to dismissal. Given our determination to the contrary, we remand this case to the trial court for further consideration of which claims are health care liability claims. See Frymire Eng'r Co. v. Jomar Int'l Ltd., 259 S.W.3d 140, 147 (Tex. 2008) (declining to decide issues not addressed by lower court and remanding for a determination of those issues).
We reverse the trial court's order denying the motion to dismiss and remand for it to determine which claims are health care liability claims subject to dismissal.