Gutierrez v. Walker, MID-CITIES

• Decision Date: 14 June 2001
• Docket Number: No. 13-00-171-CV,MID-CITIES,13-00-171-CV
• Citation: 50 S.W.3d 61
• Parties: (Tex.App.-Corpus Christi 2001) BERTHA GUTIERREZ, A/K/A BEATRICE BARGAS, AND PEDRO GUTIERREZ, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF ANNA GUTIERREZ, DECEASED, Appellants, v. GEOFFREY S. WALKER, M.D., HARRY F. GROSS, JR., M.D., RENAL PHYSICIANS OF NORTH TEXAS, L.C.;NEPHROLOGY ASSOCIATION, P.A.; D/B/A IRVING DIALYSIS CENTER, AND MARK MEICHES , M.D. Appellees.
• Court: Texas Court of Appeals

Page 61

50 S.W.3d 61 (Tex.App.-Corpus Christi 2001)

BERTHA GUTIERREZ, A/K/A BEATRICE BARGAS, AND PEDRO GUTIERREZ, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF ANNA GUTIERREZ, DECEASED, Appellants, v. GEOFFREY S. WALKER, M.D., HARRY F. GROSS, JR., M.D., RENAL PHYSICIANS OF NORTH TEXAS, L.C.; MID-CITIES NEPHROLOGY ASSOCIATION, P.A.; D/B/A IRVING DIALYSIS CENTER, AND MARK MEICHES , M.D. Appellees.

No. 13-00-171-CV

Court of Appeals of Texas, Corpus Christi.

June 14, 2001.

Rehearing Overruled July 26, 2001.

On appeal from the 44th District Court of Dallas County, Texas.

Charles W. Megarry, Dallas, for Appellant.

Bruce W. Steckler, Diana L. Faust, R. Brent Cooper, Cooper, Aldous & Scully, Dallas, Charles G. Bell, Gwinn & Roby, Dallas, for Appellee.

Before Justices Dorsey, Rodriguez, and Hill ¹

OPINION

JOHN HILL, Senior Justice (Assigned).

Bertha Gutierrez, a/k/a Beatrice Bargas, and Pedro Gutierrez, individually and as representative of the estate of Anna Gutierrez, deceased, appeal from the trial court's order dismissing their medical malpractice action against Geoffrey S. Walker, M. D.; Renal Physicians of North Texas, L. C.; Mid-Cities Nephrology Association, P. A., d/b/a Irving Dialysis Center; and Mark Meiches, M. D. Presenting five issues, appellants contend that: (1) the trial court abused its discretion by requiring them to prove that an expert report that they filed under the Medical Liability and Insurance Improvement Act was made in good faith; (2) there is no evidence, or, alternatively, factually insufficient evidence to support the trial court's finding that their expert reports did not represent a good-faith effort to comply with the Medical Liability and Insurance Improvement Act; (3) the trial court erred in dismissing their case without evidence of the culpable mental state required by the due process clause of the United States Constitution; (4) the trial court erred in refusing to rule upon their request for a grace period under the Medical Liability and Insurance Improvement Act; and (5) the trial court abused its discretion by denying their request for a grace period because appellees did not attempt to controvert appellants' evidence of mistake.

We reverse and remand for further proceedings because the trial court abused its discretion by denying appellants' request for a thirty-day grace period in which to file a sufficient expert's report, where there is uncontroverted evidence that the failure to timely file a sufficient report was due to mistake and was not intentional or the result of conscious indifference.

This medical malpractice case arises out of the death of Anna Gutierrez, a one-day-old infant born to Bertha Gutierrez. Article 4590i, section 13.01(d) of the Texas Revised Civil Statutes requires the timely filing of expert reports for each physician or health care provider against whom a claim is asserted. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d) (Vernon Supp. 2001). Under that section, these reports are due not later than the later of the 180th day after the date on which the claim was filed or the last day of an extension granted by the trial court for good cause shown or an extension agreed to in writing by the parties or their counsel that has been filed with the court. See Tex. Rev. Civ. Stat. Ann. 4590i § 13.01(d) (Vernon 1999). Appellants sought and obtained such an extension to file the report, based upon their assertion that they had not yet been able to depose the defendants. The order for extension provided that all such reports were to be filed on or before 30 days after January 20, 1999. Subsequently, appellants, on February 22, 1999, filed expert reports with respect to Drs. Walker, Goss, and Meiches. Several months thereafter, appellees filed a joint motion to dismiss appellants' claims, asserting that the reports filed by the appellants did not represent a good faith effort to comply with the requirements of article 4590i, section 13.01(r)(6), and that the experts were not qualified as experts under section 13.01(r)(5). See id. § 13.01(r)(5), § 13.01 (r)(6)

In their fifth issue presented on appeal, appellants contend that the trial court abused its discretion by denying their request for a grace period because appellees did not controvert evidence that their failure to file an adequate expert report was a mistake. Appellants sought a thirty-day grace period in the event that the trial court should find that they had not timely filed the required expert reports. Article 4590i, section 13.01(g) provides that the trial court is to grant such a motion if, after hearing, the court finds that the failure of the claimant or the claimant's attorney to timely comply with the expert report requirement was not intentional or the result of conscious indifference but was the result of an accident or mistake. See id. § 13.01(g).

James W. Mills, III, appellants' attorney at trial, testified that this case was the second medical malpractice claim that he had handled. He said that the experts' reports contained everything that he had advised them was legally required, and that they used the same format that he had used in his earlier case. He indicated that no objections had been posed to his reports in the earlier case. Mills also testified that, to the best of his recollection, at the time he did this he was going on what he believed article 4590i required that he have. He stated that to the best of his recollection he had not compared the reports with the actual requirements of the statute.

On cross-examination, Mills acknowledged that he is board certified in personal injury and civil trial law. He indicated that he had attended CLE courses, some of which probably included discussions of medical malpractice cases. He stated that at the time the suit was filed he was basically familiar with the requirements of article 4590i, including those having to do with expert reports. He indicated that he became aware of the requirements either by reviewing the statute or by discussing it at the time the legislation came about. While he acknowledged that he would generally read something filed by a defense attorney in a case, he did not recall reading appellees' response to his prior motion for extension of time. In their response to appellants' motion for extension of time, the appellees stated that,

[T]he expert report must state that the plaintiff has obtained a written opinion from an expert who has knowledge of the accepted standards of care for the diagnosis in question and that the acts and omissions of the physician or healthcare provider were negligent and a proximate cause of the injury claimed. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(r)(6) (Vernon Supp. 1999). These statutory provisions are mandatory and provide no exceptions except upon agreement of the parties.

The trial court granted appellees' motion to dismiss appellants' claims, thereby denying appellants' motion requesting a thirty-day grace period. We hold that the trial court abused its discretion in denying appellants' motion for a thirty-day grace period because, while appellees presented evidence that appellants' counsel was basically familiar with the requirements of article 4590i, including expert reports, appellees presented no evidence that Mills, appellants' attorney, knew the specific requirements of an expert report but failed to file reports that met those requirements. See Roberts v. Medical City Dallas Hospital, Inc., et al., 988 S.W.2d 398, 403-04 (Tex. App.--Texarkana 1999, pet. denied).

Appellees contend that the trial court did not abuse its discretion in denying appellants a grace period because they had controverted appellants' evidence that the failure to file adequate expert reports was a mistake. They refer us to testimony by Mills that he was aware of the requirements of article 4590i and that he ordinarily would have read documents filed by the appellees. They argue that they included the requirements of the statute regarding expert reports in their response to the appellants' motion for an extension of time to file reports....