Chca Woman's Hosp., L.P. v. Lidji

• Decision Date: 22 March 2012
• Docket Number: No. 01–11–00879–CV.,01–11–00879–CV.
• Parties: CHCA WOMAN'S HOSPITAL, L.P. d/b/a The Woman's Hospital of Texas and Woman's Hospital of Texas, Inc., Appellants, v. Scott LIDJI and Angela Lidji, as next friends of R.L., A Minor, Appellees.
• Court: Texas Court of Appeals

369 S.W.3d 488

CHCA WOMAN'S HOSPITAL, L.P. d/b/a The Woman's Hospital of Texas and Woman's Hospital of Texas, Inc., Appellants,

v.Scott LIDJI and Angela Lidji, as next friends of R.L., A Minor, Appellees.

No. 01–11–00879–CV.

Court of Appeals of Texas, Houston (1st Dist.).

March 22, 2012.

Robert Eugene Bell, Serpe, Jones, Andrews, Callender & Bell, PLLC, Houston, TX, for Appellants.

Gaines West, Jennifer Driscoll Jasper, West, Webb, Allbritton & Gentry, P.C., College Station, TX, for Appellees.

Panel consists of Justices KEYES, BLAND, and SHARP.

OPINION

EVELYN V. KEYES, Justice.

Appellees, Scott and Angela Lidji, as next friends of their minor daughter, R.L. (“Lidji”), sued CHCA Woman's Hospital, L.P. d/b/a The Woman's Hospital of Texas and Woman's Hospital of Texas, Inc. (collectively, “CHCA”) for medical malpractice arising out of complications following R.L.'s birth. Lidji nonsuited his claims with four days remaining in the 120–day time period for serving expert reports. Over two years later, Lidji re-filed suit against CHCA and simultaneously served an expert report. CHCA moved to dismiss, contending that the report was untimely pursuant to Civil Practice and Remedies Code section 74.351. The trial court denied the motion to dismiss. On interlocutory appeal, CHCA contends that the trialcourt erroneously denied its motion to dismiss because Lidji's nonsuit did not toll the 120–day time period, and, thus, the expert report, served more than two years after Lidji first filed an original petition against it, was untimely.

We affirm.

Background

Twins R.L. and J.L. were born prematurely at CHCA on January 21, 2007, and they both spent time in the Neonatal Intensive Care Unit (“NICU”). Although J.L.'s development progressed normally while he was in the NICU, R.L. had numerous complications and ultimately suffered “permanent neurological damage and severe developmental impairment.”

Lidji first filed a health care liability claim against CHCA on R.L.'s behalf on April 2, 2009. Lidji did not serve an expert report at this time. On July 27, 2009, 116 days after Lidji filed his original petition against CHCA, he nonsuited his claims. At this point in time, four days remained in the statutory 120–day time period for serving expert reports following the filing of Lidji's original petition, and Lidji had not yet served a report on CHCA.

More than two years later, on August 15, 2011, Lidji filed a health care liability claim against CHCA and several other medical practitioners.¹ Lidji simultaneously served CHCA with the expert report of Dr. Houchang D. Modanlou, a neonatologist.

CHCA objected to the expert report and moved to dismiss the claims against it. ² CHCA argued that Lidji's expert report was untimely because Lidji did not serve the report until he filed the second suit against CHCA following his earlier nonsuit, more than two years after he initially filed an original petition against CHCA. CHCA argued that the statutory 120–day time period for serving an expert report began running on the day that Lidji first filed his original petition, April 2, 2009, and was not tolled when Lidji nonsuited his claims with four days remaining before the time period expired. Thus, CHCA argued, the 120–day time period expired on July 31, 2009, even though no lawsuit was pending against CHCA at the time. CHCA contended, “Plaintiffs' effort to re-file their healthcare liability claim against [CHCA] does not cure the lack of an expert report being served within 120–days of Plaintiffs' filing their original petition on April 2, 2009.”

In response, Lidji argued that his nonsuit tolled the running of the 120–day time period until he re-filed suit against CHCA, which, instead of triggering a new 120–day window for serving an expert report, triggered the time remaining from his original 120–day time period: four days. Lidji argued that, considering the language in other sections of Chapter 74, it was clear that the Legislature intended for the 120–day time period to run only when a lawsuit was actively pending. He contended that because he filed the second suit and simultaneously served the expert report on CHCA, he served the report on the day the expert-report time period resumed running following the nonsuit, and, thus, he timely served CHCA with the report.

The trial court ultimately overruled CHCA's objection to the expert report as untimely and denied CHCA's motion to dismiss. This interlocutory appeal followed. SeeTex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(9) (Vernon Supp. 2011) (allowing interlocutory appeal from district court order that “denies all or part of the relief sought by a motion under [Civil Practice and Remedies Code] Section 74.351(b)”).

Standard of Review

Generally, we review a trial court's ruling on a section 74.351(b) motion to dismiss for an 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. denied). Here, however, the question at issue—whether a nonsuit tolls the running of the 120–day expert report time period—is a question of law involving statutory interpretation. We review questions of law de novo. Id.; see also Stroud v. Grubb, 328 S.W.3d 561, 563 (Tex.App.-Houston [1st Dist.] 2010, pet. denied) (“The resolution of this appeal is limited to purely statutory interpretation, and thus we review the trial court's ruling de novo.”).

The primary purpose of construing a statute is to determine and give effect to the Legislature's intent. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003); Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.1999). When determining this intent, we look first to the plain language of the statute, for “it is a fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent.” Fitzgerald, 996 S.W.2d at 866;see also City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex.2008) (“[W]e construe the statute's words according to their plain and common meaning, unless a contrary intention is apparent from the context, or unless such a construction leads to absurd results.”) (citations omitted). We may also consider the object the Legislature sought to attain, the circumstances under which the Legislature enacted the statute, the legislative history, former statutory provisions, and the consequences of a particular construction. Tex. Gov't Code Ann. § 311.023(1)(5) (Vernon 2005).

We presume that the Legislature intends for the entire statute to be effective and that its application yield a just and reasonable result. Stroud, 328 S.W.3d at 563;Gutierrez, 237 S.W.3d at 873;see alsoTex. Gov't Code Ann. § 311.021(2)(3) (Vernon 2005). We read every word, phrase, and expression in a statute as if it were deliberately chosen and we likewise presume that words excluded from the statute are done so purposefully. Town Hall Estates–Arlington, Inc. v. Cannon, 331 S.W.3d 793, 795 (Tex.App.-Fort Worth 2010, no pet.). When determining legislative intent, we do not examine a term or provision in isolation, but we instead read the particular statute as a whole. See State ex rel. State Dep't of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002); Stroud, 328 S.W.3d at 563;see also 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.”).

Timeliness of Expert Report When Plaintiff Nonsuits

In its sole issue, CHCA contends that the trial court erred in denying its motion to dismiss Lidji's claims against it because Lidji failed to timely serve an expert report. Specifically, CHCA contends that the trial court erroneously concluded that Lidji's nonsuit tolled the running of the statutory 120–day time period for serving expert reports until he re-filed his health care liability claims against CHCA.

Civil Practice and Remedies Code section 74.351(a) provides:

In a health care liability claim, a claimant shall, 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.

Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (Vernon 2011). A claimant may extend the 120–day period by written agreement of the affected parties. Id. If the claimant does not serve the expert report within the statutory time period, the trial court, on motion of the health care provider, shall “dismiss [ ] the claim ... with prejudice to the re-filing of the claim.” Id. § 74.351(b). “The legislative purpose [of section 74.351] is 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.” Runcie v. Foley, 274 S.W.3d 232, 234 (Tex.App.Houston [1st Dist.] 2008, no pet.).

Texas Rule of Civil Procedure 162 provides, “At any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case, or take a non-suit, which shall be entered in the minutes.” Tex.R. Civ. P. 162. A party has an “absolute right” to file a nonsuit. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex.2010). A voluntary nonsuit “extinguishes a case or controversy from the moment the motion for nonsuit is filed or an oral motion is made in open court” and it “renders the merits of the nonsuited case moot.” Id. (quoting Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon ex rel. Shultz, 195 S.W.3d 98, 100 (Tex.2006) (per curiam) and citing Villafani v. Trejo, 251 S.W.3d 466, 469 (Tex.2008)). Section 74.351 does not address what effect, if any, a claimant's nonsuit has on the 120–day time period for serving...