Hanzi v. Bailey

• Citation: 48 S.W.3d 259
• Decision Date: 07 March 2001
• Docket Number: No. 04-00-00245-CV,04-00-00245-CV
• Parties: (Tex.App.-San Antonio 2001) Georges HANZI and Cheryl Hanzi, Appellants v. Stephen R. BAILEY, M.D., Appellee
• Court: Court of Appeals of Texas

Page 259

48 S.W.3d 259 (Tex.App.-San Antonio 2001)

Georges HANZI and Cheryl Hanzi, Appellants v. Stephen R. BAILEY, M.D., Appellee

No. 04-00-00245-CV

Court of Appeals of Texas, San Antonio.

March 7, 2001

Rehearing Overruled March 28, 2001.

From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 1999-CI-03323 Honorable David Berchelmann, Jr., Judge Presiding

Sitting: Phil Hardberger, Chief Justice, Alma L. Lopez, Justice, Karen Angelini, Justice

Opinion

Alma L. Lopez, Justice

This appeal arises from a health care liability claim governed by the Medical Liability and Insurance Improvement Act ("article 4590i"). See Tex. Rev. Civ. Stat. Ann. art. 4590i, §§ 1.01 16.02 (Vernon Supp. 2000). Appellants, Georges Hanzi and Cheryl Hanzi ("the Hanzis") appeal the trial court's judgment excluding the expert report and dismissing the case against appellee, Stephen R. Bailey, M.D. Because we find that the trial court abused its discretion, we reverse the trial court's judgment and remand the cause to the trial court.

Factual and Procedural Background

On August 19, 1994, Georges Hanzi underwent surgery to replace the aortic valve in his heart with a mechanical prosthetic valve. Following the surgery, Dr. Stephen Bailey, a licensed physician who is board certified in Internal Medicine with a subspecialty in Cardiovascular Disease, placed Mr. Hanzi on Coumadin therapy to prevent the formation of blood clots around the prosthetic valve. Coumadin is an anticoagulant a blood thinner, which is prescribed for the prophylaxis and treatment of the thromboembolic complications associated with heart valve replacement.

During the course of treatment, Mr. Hanzi's Coumadin dosage (found in INR levels) was deficient in six of eight tests done in 1996 and early 1997. On March 6, 1997, Mr. Hanzi suffered an embolism of his prosthetic heart valve, which caused him to have a stroke. In the emergency room, Dr. Christopher Casey, a cardiologist, found that Mr. Hanzi had an INR level of 1.0. The recommended therapeutic INR range for a patient with a mechanical prosthetic aortic valve is the target goal of 2.5 to 3.5. Dr. Casey found that the embolus which caused Mr. Hanzi's stroke was secondary to inadequate Coumadin therapy.

On March 8, 1999, the Hanzis filed a lawsuit against Dr. Bailey and Betty J. Iverson, R.N.,¹ alleging they were negligent by: (1) failing to properly monitor Mr. Hanzi's Coumadin therapy; (2) failing to notify Mr. Hanzi of his low INR, PT, and PTT levels; and (3) failing to refer Mr. Hanzi to a more qualified health care facility. On April 1, 1999, Dr. Bailey filed an original answer generally denying the Hanzis' allegations.

On September 21, 1999, the Hanzis moved for an extension of time to file an expert report. On September 24, 1999, Dr. Bailey moved to dismiss the claim because the Hanzis failed to file an expert report within 180 days of filing their original petition, in accordance with article 4590i. On October 14, 1999, Judge Carol R. Haberman granted the Hanzis' motion for extension of time finding that the Hanzis' conduct was not consciously indifferent.² On that same day, the Hanzis filed the expert report of Dr. Robert Joyner. On October 21, 1999, Dr. Bailey filed objections to Dr. Joyner's report, a motion challenging the sufficiency of the expert's report, and a motion to dismiss the claim. On November 9, 1999, Judge David A. Berchelmann presided over a hearing on Dr. Bailey's objections and motions about the expert report. On November 15, 1999, the Hanzis filed a supplement and clarification to Dr. Joyner's expert report and a report by Dr. Henry Cabin, a board certified cardiologist, which concurred with Dr. Joyner's report. On November 19, 1999, Judge Berchelmann sustained Dr. Bailey's objections to the expert report and qualifications of Dr. Joyner, but denied Dr. Bailey's motion to dismiss.

On December 21, 1999, the Hanzis filed a motion to clarify Judge Haberman's October 14, 1999 order extending the time to file an expert report. On January 3, 2000, Judge Haberman clarified that the "30 day 'grace period' contemplated by Article 4590i, § 13.01(g) expired on October 14, 1999. . . Any report filed after that date is considered late for the purposes of Article 4590i § 13.01." Based on Judge Haberman's clarification of her previous ruling, on January 3, 2000, Dr. Bailey filed a motion for reconsideration of the motion to dismiss. On February 3, 2000, the Hanzis filed a motion for reconsideration of objection to the expert report seeking to have Judge Berchelmann overturn his previous order excluding Dr. Joyner's report. At a hearing on February 4, 2000, Judge Berchelmann heard the motions of both parties and on March 21, 2000, ordered that the case be dismissed with prejudice.

On appeal, the Hanzis complain that the trial court erred in excluding the expert report and dismissing the Hanzis' case, and that the standard of review should be de novo.

Standard of Review

In their third issue, the Hanzis complain that the standard for reviewing a case dismissed under article 4590i should be de novo instead of abuse of discretion. The Hanzis argue that this court should adopt the position taken in Palacios v. American Transitional Care Centers of Texas, Inc., 4 S.W.3d 857, 860 (Tex. App. Houston [1st Dist.] 1999, pet. granted). In Palacios, the court determined that a reviewing court should use a summary judgment standard when reviewing a dismissal of a health care liability claim for failing to provide an expert report in compliance with article 4590i, section 13.01, rather than an abuse of discretion standard. See Palacios, 4 S.W.3d at 860. The court stated:

Under our new rule 166a(i), which is intended to make it easier for defendants like the Hospital to win a summary judgment, ". . .the [plaintiff] is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements." (citations omitted). We doubt that a plaintiff must produce more proof now, at this preliminary stage, than he would have to produce in responding to a motion for summary judgment. Consequently, we decline to protect dismissals under section 13.01(e) with a standard of review less stringent than that for summary judgments.

See id. Later, the court distinguished between applying the Palacios de novo standard of review when the sole issue is whether a timely filed "expert report" complies with article 4590i, sections 13.01(l), (r)(6) and applying an abuse of discretion standard when reviewing a trial court's dismissal of a cause of action under section 13.01(e). See Jackson v. Reardon, 14 S.W.3d 816, 818 (Tex. App. Houston [1st Dist.] 2000, no pet.).

Nonetheless, this court has previously held that the standard for reviewing a trial court's dismissal of a health care liability claim for failing to comply with the expert report provisions of article 4590i, section 13.01 is abuse of discretion. See Schorp v. Baptist Memorial Health System, 5 S.W.3d 727, 731 (Tex. App. San Antonio 1999, no pet.); Wood v. Tice, 988 S.W.2d 829, 830 (Tex. App. San Antonio 1999, pet. denied).³ Whether a trial court abused its discretion is dependent on whether it acted without reference to any guiding rules or principles. See Schorp, 5 S.W.3d at 731. An abuse of discretion does not occur where the trial court bases its decision on conflicting evidence. See id. An abuse of discretion does not occur as long as some evidence of substantive and probative character exists to support the trial court's decision. See id. In applying this standard, we defer to the trial court's factual determinations, but review questions of law de novo. See Wood, 988 S.W.2d at 830; see also Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989) (describing statutory construction as a question of law). Because we have previously determined that the standard for reviewing this type of case is abuse of discretion, we decline to adopt the de novo standard. Accordingly, we overrule this issue.

Compliance with Article 4590i

In their second issue, the Hanzis claim that Judge Haberman abused her discretion by only granting a one-day extension on October 14, 1999, instead of the mandatory 30 days required by article 4590i, section 13.01(g), which would have extended the deadline to file the expert report to November 15, 1999.

The legislature enacted article 4590i to curtail frivolous claims against physicians and other health care providers. See Wood, 988 S.W.2d at 830; Horsley-Layman v. Angeles, 968 S.W.2d 533, 537 (Tex. App. Texarkana 1998, no pet.). To that end, section 13.01 requires a plaintiff to provide each defendant with one or more expert reports relating to liability and causation. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(i-j) (Vernon Supp. 2000); Wood, 988 S.W.2d at 830. Section 13.01(d) requires that the expert report must be "furnish[ed]," together with a curriculum vitae, no later than 180 days after the suit is filed. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d) (Vernon Supp. 2000); Wood, 988 S.W.2d at 830. The statute provides two exceptions to the 180-day deadline. First, subsection (f) provides that the trial court may extend the time period under subsection (d) for an additional 30 days for "good cause." See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(f) (Vernon Supp. 2000); Schorp, 5 S.W.2d at 732. Second, subsection (g) provides:

Notwithstanding any other provision of this section, if a claimant has failed to comply with a deadline established by Subsection (d) of this section and after hearing the court finds that the failure of the claimant or the claimant's attorney was not intentional or the result of conscious indifference but was the result of accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection.

See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(g) (Vernon Supp. 2000) (...