Harris v. Patel

• Decision Date: 22 September 2011
• Docket Number: No. 06-11-00031-CV,06-11-00031-CV
• Parties: JIMMIE HARRIS, ADMINISTRATOR OF THE ESTATE OF JERRY YEAGER, Appellant v. DR. HIREN PATEL AND HEALTHSOUTH REHABILITATION HOSPITAL, Appellees
• Court: Texas Court of Appeals

JIMMIE HARRIS, ADMINISTRATOR OF THE ESTATE OF JERRY YEAGER, Appellant v. DR. HIREN PATEL AND HEALTHSOUTH REHABILITATION HOSPITAL, Appellees

No. 06-11-00031-CV

Court of Appeals Sixth Appellate District of Texas at Texarkana

Date Submitted: August 16, 2011

Date Decided: September 22, 2011

On Appeal from the 5th Judicial District Court

Bowie County, Texas

Trial Court No. 10C0758-005

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Chief Justice MorrissMEMORANDUM OPINION

The health care liability lawsuit filed against Hiren Patel, M.D., and HealthSouth Rehabilitation Hospital (HealthSouth) alleged that medical negligence caused Jerry Yeager's death. But, after the 120-day statutory deadline for serving an expert report had passed, and plaintiff, Jimmie Harris, as personal representative of the Estate of Jerry Yeager, had served no such report, the trial court dismissed the lawsuit and granted attorneys' fees to the two defendants.

Harris appeals, asserting constitutional challenges to the expert-report deadline, claiming trial-court error in refusing his motion to extend the deadline and arguing that the awarded attorneys' fees were excessive. We affirm the trial court's judgment because (1) Harris' constitutional challenges were not preserved and are not meritorious, (2) Section 74.351 requires dismissal of Harris' claims, and (3) the awards of attorneys' fees were within the trial court's discretion.

(1) Harris' Constitutional Challenges Were Not Preserved and Are Not Meritorious

Harris' constitutional challenge is subject to de novo review. 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) (expert report statute did not violate due process right, and trial court did not abuse discretion in dismissing claim).

A health care liability claimant must serve on each "party or party's attorney" one or more expert reports no later than the 120th day after the date the original petition was filed. TEX. CIV.PRAC. & REM. CODE ANN. § 74.351(a) (West 2011). By statute, if an expert report is not served within the specified time period, the court must enter an order that dismisses the claim with respect to the health care provider, with prejudice to refiling of the claim, and that awards to the affected health care provider reasonable attorneys' fees and costs of court. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b)(1), (2) (West 2011). Harris concedes his expert report was not timely served, but claims the 120-day deadline within which to serve this report is arbitrary and amounts to a denial of due process of law.

Preliminarily, Patel and HealthSouth contend Harris waived his constitutional challenge to Section 74.351 by raising it for the first time on appeal.¹ We find nothing in the record demonstrating that Harris' constitutional challenge was raised in the trial court. To preserve a complaint for appellate review, a party must generally present it to the trial court in a timely request, motion, or objection that states the specific grounds therefor, and obtain a ruling. TEX. R. APP. P. 33.1(a). This rule applies to constitutional issues. In re L.M.I., 119 S.W.3d 707, 710-11 (Tex. 2003); Wilson-Everett v. Christus St. Joseph, 242 S.W.3d 799, 801 (Tex. App.—Houston [14th Dist.] 2007, pet. denied); Rittenhouse v. Sabine Valley Ctr. Found., Inc., 161 S.W.3d 157, 166 (Tex. App.—Texarkana 2005, no pet.). Harris' constitutional claim was not raised in the trialcourt and is therefore not subject to review on appeal.²

Even if Harris' constitutional challenge had been preserved for our review, his claim would not meet with success. The Constitution does not require prior notice that "the law is clear about a clearly stated consequence for failing to comply with its terms." Walker, 111 S.W.3d at 66. Dismissal of Harris' lawsuit was a direct result of his failure to file an expert report in compliance with the statutory deadline.

Moreover, the courts have repeatedly found Section 74.351 constitutional in the face of alleged due process violations. See Bankhead v. Spence, 314 S.W.3d 464, 469 (Tex. App.—Waco 2010, pet. denied) (statute not unconstitutional as applied); Solomon-Williams v. Desai, No. 01-08-00733-CV, 2009 WL 1813135 (Tex. App.—Houston [1st Dist.] June 25, 2009, pet. denied) (mem. op.) (statute not facially unconstitutional); Smith v. Hamilton, No. 09-07-128-CV, 2007 WL 1793754 (Tex. App.—Beaumont June 21, 2007, no pet.) (mem. op.) (statute not unconstitutional as applied); Etheredge v. McCarty, No. 05-05-00164-CV, 2006 WL 1738258 (Tex. App.—Dallas June 27, 2006, no pet.) (mem. op.) (dismissal imposed as direct result of failure to file expert report in compliance with statutory deadline was appropriate and did not violate due process); Herrera v. Seton Nw. Hosp., 212 S.W.3d 452 (Tex. App.—Austin 2006, no pet.) (Section 74.351 does not violate due course of law provision of Texas Constitution); Thoyakulathu v. Brennan, 192 S.W.3d 849 (Tex. App.—Texarkana 2006, no pet.) (due processdoes not require "exceptions [to expert report requirement] that would encompass any conceivable complication in order to pass constitutional muster"); Perry v. Stanley, 83 S.W.3d 819, 825 (Tex. App.—Texarkana 2002, no pet.) (Section 74.351 does not violate due course of law provision of Texas Constitution).

Harris' assertion that the statute's restrictions are arbitrary and unreasonable presents a facial challenge to Section 74.351. To sustain such a challenge, it must be shown that the statute, by its own terms, always operates unconstitutionally. Harris' complaint of arbitrary and unreasonable restrictions imposed by the statutory time frame is untenable. See Herrera, 212 S.W.3d at 461 (merely asserting that Section 74.351 is "arbitrary and unreasonable" fails to demonstrate that statute always operates unconstitutionally).

Harris further asserts that Yeager's death, resulting from an alleged medication overdose, "creates a strong presumption of negligence" and that this claim is not the type of meritless claim envisioned by the Legislature. Harris therefore contends the statute is unconstitutional as applied. Appellate courts are not at liberty to create exceptions to the mandatory time frame in which to file an expert report, even when a meritorious claim may be dismissed. See Broxterman v. Carson, 309 S.W.3d 154 (Tex. App.—Dallas 2010, pet. denied) (dismissal of claim for failure to comply with expert report requirement, even if claim is meritorious, does not offend due process); Gulf Coast Med. Ctr., LLC v. Temple, No. 13-09-00350-CV, 2010 WL 196972 (Tex. App.—Corpus Christi Jan. 21, 2010, no pet.) (mem. op.) (court not free to craft exceptions to expert reportrequirement each time objective of that requirement is frustrated).

Finally, Harris contends Section 74.351 violates the Separation of Powers doctrine,³ because it deprives the judicial branch of the authority to assess the evidence and facts in the case. Even if this issue had been preserved for our review, it has been determined that this section does not violate the Separation of Powers doctrine. Wilson-Everett, 242 S.W.3d at 803-04.

Harris' constitutional challenges fail.

(2) Section 74.351 Requires Dismissal of Harris' Claims

A trial court's ruling on a motion to dismiss under Section 74.351(b) is reviewed for an abuse of discretion. Am. Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 877-78 (Tex. 2001). A trial court abuses its discretion when it "reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." In re Bass, 113 S.W.3d 735, 738 (Tex. 2003); Yilmaz v. McGregor, 265 S.W.3d 631, 635-36 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). Questions of law are subject to a de novo review. See Oak Park, Inc. v. Harrison, 206 S.W.3d 133, 137 (Tex. App.—Eastland 2006, no pet.). "[A] trial court has no discretion in determining what the law is, which law governs, or how to apply the law." Univ. of Tex. Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 871 n.1 (Tex. App.—Houston [1st Dist.] 2007, pet. denied); see also Buck v. Blum, 130 S.W.3d 285, 290 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (de novo standard of review applies in reviewing interpretation of health careliability statute).

While not stated as a separate issue, Harris essentially contends the trial court abused its discretion in failing to allow a thirty-day extension in which to file the expert report to correct any deficiency. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(c) (West 2011). Subsection (c) provides for the only extension available in the absence of a written agreement⁴ between the affected parties:

If an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency. If the claimant does not receive notice of the court's ruling granting the extension until after the 120-day deadline has passed, then the 30-day extension shall run from the date the plaintiff first received the notice.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c). Harris maintains that, because the statute does not define "deficiency" and does not satisfactorily explain the plain meaning of the phrase "if an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient," the trial court may, in its discretion, grant a thirty-day extension to cure any deficiency. Here, Harris claims the trial court never ruled on whether the report was deficient and failed to consider whether to grant an extension to amend the report.

Harris filed suit May 6, 2010. The expert report was therefore due on or before September 3, 2010. The expert report was not served until September 13—ten days after the deadline passed, at which time Harris also filed a ...