Chisholm v. Maron

• Decision Date: 14 December 2001
• Docket Number: No. 07-01-0224-CV,07-01-0224-CV
• Citation: Chisholm v. Maron, 63 S.W.3d 903 (Tex. App. 2001)
• Parties: (Tex.App.-Amarillo 2001) MICHAEL CHISHOLM et ux LINDA CHISHOLM, Appellants v. BARRY MARON, M.D., Appellee
• Court: Texas Court of Appeals

Page 903

63 S.W.3d 903 (Tex.App.-Amarillo 2001)

MICHAEL CHISHOLM et ux LINDA CHISHOLM, Appellants v. BARRY MARON, M.D., Appellee

No. 07-01-0224-CV

Court of Appeals of Texas, Amarillo

December 14, 2001

FROM THE 84TH DISTRICT COURT OF HUTCHINSON COUNTY; NO. 32,382-A; HON. WILLIAM D. SMITH, PRESIDING

[Copyrighted Material Omitted]

Before BOYD, C.J., QUINN and JOHNSON, J.J.

Brian Quinn, Justice

Michael and Linda Chisholm appeal an order dismissing their suit against Barry Maron, M.D. The latter had moved for dismissal because the Chisholms allegedly failed to timely serve him with an expert's report as per §13.01(d)(1) of the Texas Revised Civil Statutes. The trial court agreed with Maron, and granted the motion. On appeal, the Chisholms assert three points of error. The first concerns whether Maron acted timely. The second and third involve whether the court acted prematurely or upon "testimony given by the Plaintiffs' expert." We overrule each and affirm the order of dismissal.

Background

On March 11, 1997, the Chisholms filed suit against Maron alleging medical malpractice resulting in an injury to Michael. The injury allegedly consisted of trauma to his right sciatic nerve which occurred during hip replacement surgery. Maron filed a motion to dismiss the action on January 21, 1999, contending that the Chisholms failed to timely comply with §13.01 (a) and (d) of the Texas Medical Liability and Improvement Act (the Act). That is, Maron contended that they had not timely furnished him with an expert's report summarizing the supposed malpractice committed by him. The Chisholms sought and received a thirty day extension of time to file the report. Within that extended period, the Chisholms filed what they apparently considered to be a report and resume satisfying the Act. Maron thought otherwise and again moved to dismiss. Through his motion, he urged that the report failed to show that the person opining about Maron's supposed negligence "possessed the qualifications" of an expert. The trial court set the matter for hearing and subsequently granted the motion and dismissed the suit.

Standard of Review

Whether the trial court erred in dismissing the cause depends upon whether it abused its discretion. American Transitional Care Ctrs. of Tex. Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001); Hanzi v. Bailey, 48 S.W.3d 259, 262 (Tex. App. San Antonio 2001, pet. denied). Next, whether a trial court abused its discretion is dependent upon whether it acted without reference to any guiding rules or principles or without evidentiary support underlying its decision. Id.

Application of Standard

As previously mentioned, the Chisholms assert three points of error. To adequately address them, however, we first discuss the statutory provisions involved and their meaning. Specifically, one suing another for medical malpractice must

[n]ot later than the later of the 180th day after the date on which a health care liability claim is filed or the last day of any extended period . . . (1) furnish to counsel for each physician . . . one or more expert reports, with a curriculum vitae of each expert listed in the report; or (2) voluntarily nonsuit the action against the physician. . . .

Tex. Rev. Civ. Stat. Ann. art. 4590i, §13.01(d) (Vernon Supp. 2001). Should the plaintiff not do so, then the trial court must

. . . on the motion of the affected physician . . ., enter an order awarding as sanction against the claimant or the claimant's attorney: (1) the reasonable attorney's fees and costs of court incurred by that defendant; (2) the forfeiture of any cost bond respecting the claimant's claim against that defendant to the extent necessary to pay the award; and (3) the dismissal of the action of the claimant against that defendant with prejudice to the claim's refiling.

Id. at §13.01(e). However, if a report is timely filed, the opponent may still challenge its adequacy.

Next, to be an adequate expert report within the purview of the Act, it must be written by an expert and provide a fair summary of that expert's opinions regarding the applicable standards of care, the manner in which the care rendered deviated from those standards, and the causal relationship between the deviation and the injury allegedly suffered. Id. at §13.01(r)(6). In other words, the expert must do more than merely voice his opinions in the report. He is obligated to also inform the defendant of the specific conduct called into question and provide a basis for the trial court to conclude that the claims have merit. American Transitional Care Ctrs, of Tex. Inc. v. Palacios, 46 S.W.3d at 879; Wright v. Bowie Mem'l Hosp., 48 S.W.3d 443, 446 (Tex. App. Fort Worth 2001, pet. filed).

So too must the report state the name of the purported expert and establish his qualifications as an expert. Schorp v. Baptist Mem'l Health Sys., 5 S.W.3d 727, 732 (Tex. App.--San Antonio 1999, no pet.) (holding that the report did not meet the requirements of §13.01(d) because it omitted the expert's name and qualifications). That the conclusion reached in Schorp is accurate is evinced by both statute and Supreme Court precedent. For instance, in defining the term "expert report," the legislature stated, in part, that the document consists of a "written report by an expert . . . ." Tex. Rev. Civ. Stat. Ann. art. 4590i, §13.01(r)(6). Furthermore, "expert" as defined by the same legislative body, means "an expert qualified to testify under the requirements of" art. 4590i, §14.01(a) of the Act. Id. at 13.01(r)(5)(A) (emphasis added). So, before a document can be considered an expert report, it must be rendered by one qualified to testify as an expert on the particular subject-matter. And, because we are restricted to "the four corners of the document" in determining whether the report complied with the demands of §13.01, American Transitional Care Ctrs. of Tex. Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001), and the document must be that of a qualified expert, it follows that it must illustrate that the person rendering the opinion therein is a qualified expert. Indeed, anything less would fall short of providing a basis for the trial court to conclude that the claims have merit. See American Transitional Care Ctrs. of Tex. Inc. v. Palacios, 46 S.W.3d at 879 (stating that the report must provide the trial court basis upon which to conclude that the claims have merit). This is so because claims of medical malpractice without testimonial support from a qualified expert lack merit. Id. at 876-77.

Finally, the legislature has also dictated the requirements for qualifying as an expert in a medical malpractice case. According to that body, the individual must 1) be practicing medicine at the time the opinion is rendered or at the time the claim arose, 2) have knowledge of accepted standards of medical care for the diagnosis, care or treatment of the illness, injury, or condition involved in the claim, and 3) be qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care. Tex. Rev. Civ. Stat. Ann. art. 4590i, §14.01(a)(1),(2), & (3). With this said, we turn to the points asserted by the Chisholms.

Here, Maron moved to dismiss the suit because the supposed expert report tendered by the Chisholms did not illustrate that its creator, Elliot B. Oppenheim, M.D., was a qualified expert. That is, it allegedly failed to illustrate that the doctor was 1) trained or experienced in the field of orthopedic surgery (i.e., Maron's field of practice) or 2)...