Doan v. Christus Health Ark-La-Tex

• Citation: 329 S.W.3d 907
• Decision Date: 15 December 2010
• Docket Number: No. 06-10-00040-CV.,06-10-00040-CV.
• Parties: Margaret DOAN, Appellant, v. CHRISTUS HEALTH ARK-LA-TEX, d/b/a Christus St. Michael Health System, Appellee.
• Court: Texas Court of Appeals

329 S.W.3d 907

Margaret DOAN, Appellant,

v.CHRISTUS HEALTH ARK-LA-TEX, d/b/a Christus St. Michael Health System, Appellee.

No. 06-10-00040-CV.

Court of Appeals of Texas,

Texarkana.

Submitted Nov. 12, 2010.

Decided Dec. 15, 2010.

John F. Stroud III, Gregory A. Hoover, Texarkana, for appellant.

Erin L. Leeser, Kevin W. Yankowsky, Fulbright & Jaworski LLP, Houston, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice CARTER.

Because the statutorily-mandated expert report and curriculum vitae were not served within 120 days from filing of the original petition, the trial court dismissed this medical liability claim and granted an attorney's fee. Appellant, Margaret Doan, raises a single issue contending portions of Section 74.351 of the Texas Civil Practice and Remedies Code violate her rights under the Open Courts provision of the TexasConstitution. Tex. Const. art. I, § 13. We affirm the trial court's judgment.

I. Background Facts

After having her knee replaced, Doan was a rehabilitation patient at Christus Health Ark-La-Tex, d/b/a Christus St. Michael Health System (Christus). While under the care of Christus, she fell, injuring the knee that had been replaced. Doan hired attorney Paul Hoover to represent her, and on July 15, 2009, she filed a general healthcare liability suit, alleging that Christus' negligence proximately caused her injuries. Because her claim is a healthcare liability claim, Doan was required to serve Christus with an expert report and the expert's curriculum vitae within 120 days of filing suit, no later than November 12, 2009. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (Vernon Supp.2010).

On October 23, 2009, twenty days before the expiration of the 120-day time period, Hoover unexpectedly died. Hoover was a sole practitioner and, according to Rebecca Rich, his secretary and sole employee, he was "handling this case entirely on his own." ¹ Doan failed to serve Christus with an expert report before the deadline passed.

Less than one month after Hoover's death, on November 20, 2009, John Stroud, III, was appointed to assume control of Hoover's law practice in order to protect the interests of Hoover's clients. Until Stroud was appointed, only Doan had the authority to take any legal action on her behalf. It is undisputed in the record that Doan was unaware of the filing deadline and that she did not learn of Hoover's death until the second week of December, well after the deadline had passed.

In January 2010, Christus filed a motion to dismiss pursuant to Section 74.351(b) because it had not been served with the required expert report and curriculum vitae. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b) (Vernon Supp.2010). The trial court granted the motion, dismissed the suit against Christus with prejudice, and awarded Christus $5,000.00 in attorney's fees.

II. Standard of Review

We review a trial court's ruling on a motion to dismiss under Section 74.351(b) for an abuse of discretion. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(b);Am. Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 877-78 (Tex.2001). Pure questions of law, however, such as the constitutional challenge here, are reviewed de novo because the trial court has no discretion in determining what the law is or how to apply the law to the facts. In re Jorden, 249 S.W.3d 416, 424 (Tex.2008); Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). If a statute operates unconstitutionally, the trial court has no discretion to apply it. Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex.2003) (finding failure to comply with expert report statute did not violate due process right and trial court did not abuse discretion in dismissing claim).

III. Analysis—Open Courts Provision of the Texas Constitution

Section 74.351(a) requires that an expert report and curriculum vitae "shall" be served on the opposing party within 120 days after the original petition is filed. Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a). Failure to comply is fatal; the trial court has no discretion to grant an extension of time due to exigent circumstances.² Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (Vernon Supp.2010); see also Ogletree v. Matthews, 262 S.W.3d 316, 319-20 (Tex.2007) (if no report is served within 120 days, "the Legislature denied trial courts the discretion to deny motions to dismiss or grant extensions").

Doan argues that Section 74.351 is unconstitutional as applied to her because it violates her rights under the Texas Open Courts provision by requiring the trial court to dismiss her suit even though service of the expert report was impossible. Christus contends that serving the report was not impossible because either Doan or her counsel could have filed and served the expert report during the 100-day period between the filing of suit and Hoover's death.³

When reviewing the constitutionality of a statute under an Open Courts challenge, we begin with the presumption that the statute is constitutional. Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983); see Gutierrez, 111 S.W.3d at 66. The party challenging the constitutionality of a statute must demonstrate that it fails to meet constitutional requirements. Gutierrez, 111 S.W.3d at 66.

Article I, Section 13 of the Texas Constitution provides that "[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law." Tex. Const. art. I, § 13. This provision, commonly referred to as the "Open Courts" provision, is premised upon the rationale that the Legislature lacks the power to make a remedy by due course of law contingent on an impossible condition. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355 (Tex.1990); Morrison v. Chan, 699 S.W.2d 205, 207 (Tex.1985). It acts as an additional due process guarantee granted in the Texas Constitution, prohibiting legislative bodies from withdrawing all legal remedies from anyone having a well-defined common law cause of action. Sax, 648 S.W.2d at 664-65. The Open Courts provision guarantees "the legislature may not abrogate theright to assert a well-established common law cause of action unless the reason for its action outweighs the litigants' constitutional right of redress." Trinity River Auth. v. URS Consultants, Inc., 889 S.W.2d 259, 261 (Tex.1994) (quoting Tex. Ass'n of Business v. Tex. Air Control Bd., 852 S.W.2d 440, 448 (Tex.1993)). Therefore, to establish an as applied Open Courts violation, Doan must show: (1) that she has a cognizable common law cause of action that is being restricted and (2) that under the circumstances of this case, the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute. Yancy v. United Surgical Partners Int'l, Inc., 236 S.W.3d 778, 783 (Tex.2007); Diaz v. Westphal, 941 S.W.2d 96, 100 (Tex.1997).

The stated purpose of Section 74.351's expert report requirement is "to stem frivolous suits against health care providers." Lewis v. Funderburk, 253 S.W.3d 204, 205 (Tex.2008); Palacios, 46 S.W.3d at 877; Perry v. Stanley, 83 S.W.3d 819, 825 (Tex.App.-Texarkana 2002, no pet.); Gill v. Russo, 39 S.W.3d 717, 719 (Tex.App.-Houston [1st Dist.] 2001, pet. denied). Here, the parties do not dispute that Doan's medical negligence claim is a well-recognized common law cause of action and that Section 74.351 restricts said cause of action. See, e.g., Humphreys v. Roberson, 125 Tex. 558, 83 S.W.2d 311 (1935). Therefore, the issue in this case is whether the restriction is unreasonable or arbitrary when balanced against the purpose and basis of Section 74.351.

When faced with other facial and as applied challenges, Texas courts, including this one, have consistently held that Section 74.351 does not violate the Open Courts provision of the Texas Constitution. See, e.g., Bankhead v. Spence, 314 S.W.3d 464 (Tex.App.-Waco 2010, pet. denied) (no Open Courts violation when pro se inmate plaintiff was not entitled to appointed counsel to help obtain expert report); Offenbach v. Stockton, 285 S.W.3d 517 (Tex.App.-Dallas 2009, pet. granted) (no Open Courts violation because service was possible even though plaintiff filed an early and timely request for substituted service and trial court did not grant until after 120-day deadline); Ledesma v. Shashoua, No. 03-05-00454-CV, 2007 WL 2214650, at **8-9 (Tex.App.-Austin Aug. 3, 2007, pet. denied) (mem.op.) (no Open Courts violation where claimant served expert report, but trial court found report inadequate and refused extension to correct deficiencies); Fields v. Metroplex Hosp. Found., No. 03-04-00516-CV, 2006 WL 2089171, at *4 (Tex.App.-Austin July 28, 2006, no pet.) (mem.op.) (no Open Courts violation where claim dismissed when claimant served expert report late); Herrera v. Seton Nw. Hosp., 212 S.W.3d 452 (Tex.App.-Austin 2006, no pet.) (no Open Courts violation when plaintiff inadvertently failed to serve expert report); Thoyakulathu v. Brennan, 192 S.W.3d 849 (Tex.App.-Texarkana 2006, no pet.) (dismissal under Section 74.351 did not violate due process when plaintiff failed to timely serve expert report because his fax machine malfunctioned on day of deadline); Perry, 83 S.W.3d 819 (no Open Courts violation even though plaintiff could not afford an expert); Gill, 39 S.W.3d 717 (even though pro se inmate plaintiff could not afford an expert, requirement that he serve an expert report did not violate Open Courts provision).

This case involves exceedingly rare circumstances, and there is only one case that is factually similar. In Palosi v. Kretsinger, an expert report was not filed due to the unexpected death of the plaintiffs' attorney after the filing of suit, but prior to the 120-day deadline.No. 04-08-00007-CV, 2009 WL 331894 (Tex.App.-San Antonio Feb. 11, 2009, no pet.) (mem.op.). Because of that failure, the trial court dismissed the plaintiffs' cause of action with prejudice. Id. On appeal, the plaintiffs argued that portions of Section...