Columbia N. Hills Hosp. Subsidiary, L.P. v. Alvarez

• Decision Date: 27 September 2012
• Docket Number: No. 02–12–00009–CV.,02–12–00009–CV.
• Citation: 382 S.W.3d 619
• Parties: COLUMBIA NORTH HILLS HOSPITAL SUBSIDIARY, L.P. d/b/a North Hills Hospital, Appellant, v. Bulmaro ALVAREZ, Individually and as Representative of the Estate of Sandra Alvarez, Deceased and as Next Friend of Saray Alvarez and Marilyn Alvarez, Minors, and Sandy Alvarez, Individually, Appellees.
• Court: Texas Court of Appeals

382 S.W.3d 619

COLUMBIA NORTH HILLS HOSPITAL SUBSIDIARY, L.P. d/b/a North Hills Hospital, Appellant,

v.Bulmaro ALVAREZ, Individually and as Representative of the Estate of Sandra Alvarez, Deceased and as Next Friend of Saray Alvarez and Marilyn Alvarez, Minors, and Sandy Alvarez, Individually, Appellees.

No. 02–12–00009–CV.

Court of Appeals of Texas, Fort Worth.

Sept. 27, 2012.

Linda M. Stimmel, Nichol L. Bunn, Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, Dallas, TX, for Appellant.

Les Weisbrod, Max Freeman, Lawrence R. Lassiter, Miller Weisbrod, LLP, Dallas, TX, for Appellees.

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

OPINION

TERRIE LIVINGSTON, Chief Justice.

Columbia North Hills Hospital Subsidiary, L.P. d/b/a North Hills Hospital brings this interlocutory appeal challenging the trial court's denial of its motion to dismiss under section 74.351 of the Civil Practice and Remedies Code. SeeTex. Civ. Prac. & Rem.Code Ann. § 74.351 (West 2011). In five issues, North Hills contends that the trial court abused its discretion by (1) granting appellees—Bulmaro Alvarez, individually and as representative of the estate of Sandra Alvarez, deceased, and as next friend of Saray Alvarez and Marilyn Alvarez, minors, and Sandy Alvarez, individually—a thirty-day extension to amend their expert report, (2) finding appellees' expert qualified to give an expert report, (3 & 4) finding the expert report sufficient to meet the statutory report requirement, and (5) failing to dismiss appellees' health care liability claim with prejudice. We affirm.

Background

This case is on appeal to this court for the second time. See Columbia N. Hills Hosp. Subsidiary, L.P. v. Alvarez, No. 02–10–00342–CV, 2011 WL 3211239 (Tex.App.-Fort Worth July 28, 2011, no pet.) (mem. op. on reh'g). Forty-five-year-old Sandra Alvarez died at North Hills after having a hysterectomy. Id. at *1. Following the surgery, she was transferred to the recovery room where she experienced difficulties. Id. She was eventually diagnosed as suffering from hemorrhagic shock and returned to the operating room for surgical repair of the source of her internal bleeding. Id. Alvarez died approximately five hours after her second surgery. Id. Her autopsy report indicates that she died as a result of “(1) complications of acute hemorrhagic shock due to post-operative bleed and (2) morbid obesity with hepatomegaly, severe fatty metamorphosis and early fibrosis.” Id.

Appellees sued North Hills alleging both vicarious liability and direct liability theories of recovery. Id. at *2. Appellees alleged that North Hills was vicariously liable for its nurses' negligence, including the failure to invoke the chain of command. Id. Appellees further alleged that North Hills was directly liable for failing to adequately train its nurses, failing to enforce its policies and procedures, and failing to adequately supervise its nurses. Id. Appellees timely served the report and curriculum vitae of their designated expert, Dr. Tyuluman, on North Hills. Id. North Hills filed a motion to dismiss alleging that Dr. Tyuluman was not qualified to testify on the standard of care applicable to a hospital and also alleging various deficiencies in his report. Id. After a hearing, the trial court ruled that

the expert reports submitted by [Appellees] constitute a good faith effort and meet the requirements of Chapter 74 of the Civil Practice & Remedies Code, with the exception that [Appellees] are required to submit an amended report breaking out specifically by name each defendant and/or group of defendants and the specific elements relating to the standard of care, breach of the standard of care, and causation for each defendant.

Id.

The trial court gave appellees thirty days to file the amended report. Appellees timely served an amended report of Dr. Tyuluman.¹Id. North Hills then filed a second motion to dismiss again alleging that Dr. Tyuluman was not qualified and alleging the same deficiencies in his report. Id. After a hearing, the trial court denied North Hills's second motion to dismiss, and North Hills appealed to this court. Id.

We held in our first opinion that Dr. Tyuluman was not qualified to give an opinion on the standard of care for the direct liability claims against North Hills and that his statement of the standard of care applicable to the hospital for the direct liability claims was insufficient to meet the statutory requirement. Id. at *5. Because the trial court had not granted appellees a thirty-day extension to cure the deficiencies we identified, we remanded so that the trial court could determine whether an extension should be granted to cure those deficiencies. Id. at *7. We affirmed the trial court's denial of the motion to dismiss on the vicarious liability claims against North Hills. Id. at *8.

On remand, the trial court granted appellees a thirty-day extension to cure the deficiencies. Appellees filed a new report from Charles M. Brosseau, Jr., a hospital management consultant. North Hills objected to the new report and filed a motion to dismiss, arguing that appellees were not allowed to submit a new report and also alleging various deficiencies with the new report. After holding a hearing, the trial court overruled North Hills's objections and denied its motion to dismiss. North Hills then perfected this second interlocutory appeal.

Standard of Review

We review a trial court's denial of a motion to dismiss for an abuse of discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex.2006); Ctr. for Neurological Disorders, P.A. v. George, 261 S.W.3d 285, 290–91 (Tex.App.-Fort Worth 2008, pet. denied); Maris v. Hendricks, 262 S.W.3d 379, 383 (Tex.App.-Fort Worth 2008, pet. denied). To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985), cert. denied,476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Id. at 242. But a trial court has no discretion in determining what the law is or in applying the law to the facts; thus, “a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding); Ehrlich v. Miles, 144 S.W.3d 620, 624 (Tex.App.-Fort Worth 2004, pet. denied).

Thirty–Day Extension

In its first issue, North Hills contends that the trial court erred in granting appellees a thirty-day extension to correct the deficiencies in Dr. Tyuluman's report upon remand. North Hills argues that our holding in its previous appeal prohibited appellees from submitting a new report on the standard of care and breach and required them to amend Dr. Tyuluman's report to show his qualifications to opine on the standard of care applicable to the direct liability claims. According to North Hills, since appellees' motion for an extension showed only that they intended to submit a new report from a different expert, the trial court should not have granted the request for an extension and should not have considered the new report from Brosseau.

To the extent that North Hills argues that the trial court abused its discretion in granting the thirty-day extension, the trial court's ruling is not subject to appellate review. See Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex.2007).

The remainder of North Hills's argument in this issue is that the trial court erred in considering Brosseau's report in satisfaction of the statutory requirements. North Hills argues that because appellees had already received one extension to correct Dr. Tyuluman's statement of the standard of care, the extension after remand gave appellees two extensions in disregard of section 74.351(c), which allows for only one extension. SeeTex. Civ. Prac. & Rem. Code Ann. § 74.351(c).

A health care liability claimant is required to serve defendants with an expert report and curriculum vitae of the report's author within one hundred and twenty days of filing the claim. Id. § 74.351(a). The report must be written by an expert competent to give an opinion on the matters in the report, must inform the defendant of the specific conduct called into question, and must provide a basis for the trial court to determine that the claim has merit. Id. § 74.351(r)(5)(B), (r)(6), 74.402 (West 2011); Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). If the defendant files a motion challenging the adequacy of the expert report, the court shall grant the motion only if it appears to the court that the report does not represent a good faith effort to comply with the statutory requirements. Tex. Civ. Prac. & Rem. Code Ann. § 74.351( l ). The court may also grant “one 30–day extension to the claimant in order to cure the deficiency.” Id. § 74.351(c). When curing a deficiency in a report, a plaintiff may submit an amended report from the same expert or supplement the original report with a new report from a different expert. Lewis v. Funderburk, 253 S.W.3d 204, 208 (Tex.2008).

If a trial court finds that an expert report does not meet the statutory requirement, grants the plaintiff a thirty-day extension to correct the deficiency, and finds the report sufficient after the extension—and we subsequently reverse the trial court's decision—we may allow the trial court to grant another thirty-day extension on remand if we hold that the report is deficient in a different manner than found by the trial court when granting the original thirty-day extension. See TTHR Ltd. P'ship v. Moreno, No. 02–10–00334–CV, 2011 WL 2651813, at *5 (Tex.App.-Fort Worth July 7, 2011...