Dingler v. Tucker

• Decision Date: 19 November 2009
• Docket Number: No. 2-09-002-CV.,2-09-002-CV.
• Citation: 301 S.W.3d 761
• Parties: Chance W. DINGLER, M.D., Appellant, v. Linda Diane TUCKER and Myrle Tucker, Appellees. and Linda Diane Tucker and Myrle Tucker, Appellants, v. Nocona Medical Clinic, P.A., Appellee.
• Court: Texas Court of Appeals

301 S.W.3d 761

Chance W. DINGLER, M.D., Appellant, v. Linda Diane TUCKER and Myrle Tucker, Appellees. and Linda Diane Tucker and Myrle Tucker, Appellants, v. Nocona Medical Clinic, P.A., Appellee.

No. 2-09-002-CV.

Court of Appeals of Texas, Fort Worth.

November 19, 2009.

Rehearing Overruled December 10, 2009.

W. Wade Birdwell, D. Michael Wallach, Jennifer Andrews, Wallach & Andrews, P.C., Fort Worth, TX, for Appellant Dingler and Appellee Nocona Medical Clinic, P.A.

Michael W. Minton, The Law Offices of Michael W. Minton, P.L.L.C., Fort Worth, TX, Greg Fitzgerald, Bedford, TX, for Appellees and Appellants Linda Diane Tucker and Myrle Tucker.

PANEL: LIVINGSTON, McCOY, and MEIER, JJ.

OPINION

BILL MEIER, Justice.

I. INTRODUCTION

In these accelerated, interlocutory appeals, Appellant Chance W. Dingler, M.D. appeals the trial court's order denying his motion to dismiss the health care liability claims of Appellees Linda Diane Tucker and Myrle Tucker, and the Tuckers as Appellants appeal the trial court's order dismissing their health care liability claims against Appellee Nocona Medical Clinic, P.A. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b) (Vernon Supp. 2009). We will reverse both appeals.

II. FACTUAL AND PROCEDURAL BACKGROUND

The Tuckers filed their original petition on November 5, 2007, alleging health care liability claims against Dr. Dingler and Nocona. Specifically, they alleged that in July or August 2005, Linda's cardiologist placed in her a drug eluting coronary stent. A few months later, Dr. Dingler— against the direction of the cardiologist— stopped Linda's aspirin and Plavix medications in anticipation of performing a gastrointestinal examination. Shortly after Dr. Dingler directed Linda to stop taking aspirin and Plavix, she was admitted to the hospital, complaining of chest pains; an EKG and blood tests confirmed that she had suffered an acute myocardial infarction, or heart attack. The Tuckers alleged that Linda sustained bodily injuries and damages as a direct and proximate result of Dr. Dingler's and Nocona's negligence.

The Tuckers served Nocona with citation by certified mail on November 6, 2007. They also attempted to serve Dr. Dingler with citation by certified mail; but the citation, which issued November 5, 2007 was returned unclaimed after the post office made several attempts to serve it.

Nocona filed its original answer on November 26, 2007. D. Michael Wallach of the law firm of Wallach, Andrews, and Stouffer, P.C. signed the answer on behalf of Nocona.

On November 26, 2007, within 120 days of filing suit, the Tuckers served Michael Wallach with the expert report and curriculum vitae of Douglas W. Jenkins, M.D. Nocona timely filed objections to Dr. Jenkins's report on December 18, 2007, objecting that the report failed to set forth Dr. Jenkins's qualifications to opine on the standard of care for a health care provider like Nocona and that the report failed to identify the applicable standard of care, how Nocona breached the standard of care, and how Nocona's breach of the standard of care caused the Tuckers' injuries. To the extent the Tuckers sought to impose vicarious liability on Nocona for the alleged acts or omissions of Dr. Dingler, Nocona made the same objections to the report as it pertained to Dr. Dingler. On June 6, 2008, Nocona filed a motion to dismiss the Tuckers' claims.

On June 11, 2008, approximately seven months after the Tuckers filed the lawsuit, they served Dr. Dingler with citation by personal service. On July 7, 2008, Dr. Dingler filed his original answer. Jennifer M. Andrews of the law firm of Wallach & Andrews, P.C., the same law firm representing Nocona,¹ signed the answer on behalf of Dr. Dingler. The Tuckers never personally served Dr. Dingler with Dr. Jenkins's report—either before or after service of citation. Dr. Dingler filed a motion to dismiss the Tuckers' claims on the ground that the Tuckers had failed to comply with civil practice and remedies code section 74.351(a) by failing to serve either him or his attorneys with an expert report within 120 days after the date the original petition was filed.

The Tuckers state that they filed a first amended original petition on August 26, 2008, the same day the trial court conducted a hearing on Dr. Dingler's and Nocona's objections and motions to dismiss. The amended petition included an allegation that Nocona was vicariously liable for the actions or inactions of Dr. Dingler. The trial court later signed its orders denying Dr. Dingler's motion to dismiss but sustaining Nocona's objections to Dr. Jenkins's report and granting its motion to dismiss. These appeals followed.

III. STANDARD OF REVIEW

We review a trial court's order on a motion to dismiss a health care liability claim for an abuse of discretion. Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex.2006). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner, or if it acts without reference to any guiding rules or principles. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002) (citing 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)). We may not substitute our judgment for the trial court's judgment. Id. Nor can we determine that the trial court abused its discretion merely because we would have decided the matter differently. Downer, 701 S.W.2d at 242.

IV. EXPERT REPORT REQUIREMENTS

Civil practice and remedies code section 74.351 provides that, within 120 days of filing suit, a plaintiff must serve expert reports for each physician or health care provider against whom a liability claim is asserted. TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a). An expert report is a written report by an expert that provides a fair summary of the expert's opinions regarding the applicable standard of care, the manner in which the care rendered by the physician or health care provider failed to meet the standard, and the causal relationship between that failure and the injury, harm, or damages claimed. Id. § 74.351(r)(6). If a claimant timely furnishes an expert report, a defendant may file a motion challenging the report's adequacy. See id. § 74.351(a), (c), (l). A trial court must grant a motion to dismiss based on the alleged inadequacy of an expert report only if it finds, after a hearing, "that the report does not represent an objective good faith effort to comply with the definition of an expert report" in the statute. Id. § 74.351(l). When a report is not served within 120 days after suit is filed, the defendant may file a motion to dismiss the case, and the trial court has no discretion but to dismiss the case. Id. § 74.351(b).

The information in the report does not have to meet the same requirements as evidence offered in a summary judgment proceeding or at trial, and the report need not marshal all the plaintiff's proof, but it must include the expert's opinions on each of the elements identified in the statute—standard of care, breach, and causation. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878-79 (Tex.2001); Thomas v. Alford, 230 S.W.3d 853, 856 (Tex.App.-Houston [14th Dist.] 2007, no pet.). In detailing these elements, the supreme court has made clear that an expert report must provide enough information to fulfill two purposes if it is to constitute a good faith effort: the report must (1) inform the defendant of the specific conduct the plaintiff has called into question and (2) provide a basis for the trial court to conclude that the plaintiff's claims have merit. Palacios, 46 S.W.3d at 879; Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 859 (Tex.App.-Houston [1st Dist.] 2006, no pet.). A report does not fulfill these two purposes if it merely states the expert's conclusions or if it omits any of the statutory requirements. Palacios, 46 S.W.3d at 879.

Under section 74.401, a person may qualify as an expert witness on the issue of whether a physician departed from accepted standards of medical care only if the person is a physician who

(1) is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose;

(2) has 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) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care.

Tex. Civ. Prac. & Rem.Code Ann. § 74.401(a) (Vernon 2005). In determining whether a witness is qualified on the basis of training or experience under section 74.401(a)(3), the trial court shall consider whether, at the time the claim arose or at the time the testimony is given, the witness (1) is board certified or has other substantial training or experience in an area of medical practice relevant to the claim and (2) is actively practicing medicine in rendering medical care services relevant to the claim. Id. § 74.401(c).

V. DR. DINGLER'S APPEAL

In a single issue, Dr. Dingler argues that the trial court abused its discretion by denying his motion to dismiss the Tuckers' health care liability claim against him. He contends that the Tuckers failed to timely serve either him or his attorney of record with Dr. Jenkins's report because (1) he was not served with the report at any time between the filing of the original petition and the filing of his motion to dismiss and (2) the Tuckers' service of Dr. Jenkins's report upon counsel for Nocona in November 2007 constituted service on behalf of only Nocona, not him too, because—even though he shares attorneys with Nocona—at that point in time, he had not been served with citation nor had he made an appearance in the case. The Tuckers argue that the trial court did not abuse its discretion by denying Dr. Dingler's motion to dismiss because they timely served Dr. Jenkins's report on counsel for Nocona, who...