Heart Hosp. of Austin v. Matthews

• Court: Texas Court of Appeals
• Writing for the Court: David Puryear
• Citation: Heart Hosp. of Austin v. Matthews, 212 S.W.3d 331 (Tex. App. 2006)
• Decision Date: 05 May 2006
• Docket Number: No. 03-05-00317-CV.,03-05-00317-CV.
• Parties: HEART HOSPITAL OF AUSTIN and Jan N. Ogletree, M.D., Appellants, v. Nancy Kay MATTHEWS and Luann Matthews, Appellees.

212 S.W.3d 331

HEART HOSPITAL OF AUSTIN and Jan N. Ogletree, M.D., Appellants, v. Nancy Kay MATTHEWS and Luann Matthews, Appellees.

No. 03-05-00317-CV.

Court of Appeals of Texas, Austin.

May 5, 2006.

Maria Cantu Hexsel, Missy K. Atwood, Germer Gertz Beaman & Brown, LLP, Austin, for Heart Hospital.

Terri S. Harris, Ewbank & Byrom, P.C., Austin, for Jan Ogletree.

Robert T. Hardcastle, Woodland Park, CO, Charles J. Young, Charles J. Young, P.C., Austin, TX, for Matthews.

Before Chief Justice LAW, Justices PATTERSON and PURYEAR.

OPINION

DAVID PURYEAR, Justice.

Appellants Heart Hospital of Austin and Jan N. Ogletree, M.D. appeal from the trial court's denial of their motions to dismiss the medical malpractice suit brought by appellees Nancy Kay Matthews and Luann Matthews. We hold that we lack the jurisdiction to consider Ogletree's appeal, and we affirm the trial court's order as to the Hospital.

Procedural Background

On October 4, 2004, appellees filed suit, alleging that appellants were negligent in their medical treatment of appellees' father, John Matthews.¹ Appellees' expert reports were due on February 1, 2005, 120 days later. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West Supp.2005).² On January 31, appellees provided appellants with three expert reports by radiologist Dr. Richard Karsh, professor of nursing Alexanderia Burwell, and two nurse consultants on behalf of SUMMIT Medical-Legal Investigations ("SMLI"). Appellants moved to have appellees' claims dismissed, arguing that the reports were deficient to such a degree that they should not be considered expert reports at all. Ogletree filed his objections and motion to dismiss on February 22, and the Hospital filed its motion to dismiss on March 7. Appellees responded to appellants' motions to dismiss, asserting that they had made a good faith effort to comply with the statute. They argued that the Hospital had waived its objections by filing its motion outside of the twenty-one-day window provided by section 74.351 and requested a thirty-day extension of time to correct any deficiencies and to submit a report by a urologist.³ The trial court denied both motions to dismiss. The court found that the Hospital had waived its objections to the expert reports by filing its motion to dismiss more than twenty-one days after the reports were served. The court found that the reports were deficient as to Ogletree but granted appellees a thirty-day extension of time to cure the deficiencies. Appellants separately filed notices of interlocutory appeal. See id. § 51.014(a) (West Supp.2005).

Expert Report as to Dr. Ogletree

The only issue raised by Ogletree is whether the trial court had the discretion to grant appellees an extension under subsection 74.351(c), which allows a trial court to grant one thirty-day extension to cure a deficient expert report. Id. § 74.351(c). Ogletree asserts that appellees' reports only addressed issues "unrelated to Dr. Ogletree's care" and that the experts were not qualified to give their opinions as to Ogletree's care. This, he argues, means that appellees failed to file an expert report as to Ogletree's alleged malpractice and, therefore, subsection 74.351(c) did not apply to give the trial court the discretion to grant an extension to appellees. Although Ogletree argues that he is appealing not from the trial court's grant of the extension, but only from the denial of his motion to dismiss, the two actions by the trial court are completely intertwined, and we disagree that Ogletree is appealing only from the denial of his motion to dismiss.

When the legislature rewrote the statutes governing health care liability claims in 2003, it provided that within 120 days of filing a lawsuit asserting a health care liability claim, a plaintiff must serve an expert report on each defendant, along with the expert's curriculum vitae ("CV"). Id. § 74.351(a). If a plaintiff fails to file a timely expert report, the court must, on the affected defendant's motion, dismiss the case with prejudice. Id. § 74.351(b). However, if a report "has not been served within [120 days] because elements of the report are found deficient," the trial court has the discretion to grant a single thirty-day extension of time to cure the deficiencies.⁴ Id. § 74.351(c). We review a trial court's decision on a motion to dismiss for failure to file an expert report for an abuse of discretion. American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001) (discussing dismissal for lack of expert report under art. 4590i, predecessor statute to Tex. Civ. Prac. & Rem.Code Ann. § 74.351); Group v. Vicento, 164 S.W.3d 724, 727 (Tex.App.-Houston [14th Dist.] 2005, pet. filed).

If a trial court has not entered a final and appealable order, we have jurisdiction to hear an interlocutory appeal only if authorized by statute. Stary v. DeBord, 967 S.W.2d 352, 352-53 (Tex.1998); Academy of Oriental Med., L.L.C. v. Andra, 173 S.W.3d 184, 185 (Tex.App.-Austin 2005, no pet.). We construe the statutory grant of interlocutory jurisdiction to determine and effectuate the legislature's intent. Andra, 173 S.W.3d at 185 (citing Texas Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002)). We consider disputed provisions in the context of the entire statute, not in isolation, and we assume that every word, phrase, and expression used in a statute was deliberately chosen and every word excluded was excluded purposefully. Id.

Subsection 51.014(a)(9) provides that an interlocutory appeal may be taken from a trial court's denial of a motion to dismiss for failure to file an expert report under section 74.351(b). Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(9). A defendant may not, however, appeal from an order granting an extension to file an expert report under section 74.351(c).⁵ Id. Because our jurisdiction over interlocutory appeals is a narrow exception to the general rule that we may only consider final judgments and orders, we must strictly construe section 51.014. Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex.2001); Andra, 173 S.W.3d at 185-86.

Although Ogletree sought dismissal under subsection 74.351(b), he also objected to appellees' reports, arguing that Karsh's report did not satisfy section 74.351. Ogletree noted that Karsh's CV was not attached to his report and complained that Karsh, a radiologist, was not qualified to give an expert opinion as to the care Ogletree provided as a urologist. Ogletree further objected that Burwell's report did not refer to Ogletree and that SMLI's report could not be used against Ogletree because it was written by nurses.⁶ On appeal, Ogletree contends that the extension granted under subsection 74.351(c) is "not before this court" and that he "is only appealing the trial court's denial of his motion to dismiss for failure to obtain an expert report." We disagree.

In Andra, which concerned whether we had jurisdiction over a trial court's order denying a challenge to an expert report under subsection 74.351(l), we held:

When a trial court grants a 30-day extension under (c), it does not dismiss or award fees or costs. In such cases, even where there is no timely expert report because the report or reports filed were found deficient and where the defendant moves for dismissal, fees, or costs, the trial court may deny the motion. The grant of an extension to the plaintiff can be a denial of a defendant's motion under 74.351(b). Section 51.014(a)(9) generally makes such denials the proper subject of an interlocutory appeal. Rather than inviting us to assume jurisdiction over interlocutory appeals of denials of motions other than motions for relief under section 74.351(b), the exception in 51.014(9) clarifies that an interlocutory appeal is only available when the court had denied a defendant's motion but had not granted the plaintiff additional time to cure deficiencies.

173 S.W.3d at 188 n. 7 (citations omitted, emphasis added). In other words, an interlocutory appeal from the denial of a motion to dismiss under subsection 74.351(b) is proper only if the trial court's order does not also grant an extension under subsection 74.351(c). Id. To hold otherwise would essentially eliminate the phrase "an appeal may not be taken from an order granting an extension under Section 74.351" from subsection 51.014(a)(9).

In this case, appellees filed several reports attempting to satisfy section 74.351. Ogletree objected to those reports and also moved for dismissal under subsection 74.351(b). The trial court agreed that the reports were deficient as to Ogletree, but exercised its discretion to grant appellees an extension of time to file satisfactory reports under subsection 74.351(c) and denied Ogletree's motion to dismiss. Because the trial court's denial of Ogletree's motion also granted an extension under subsection 74.351(c), an interlocutory appeal may not be brought from the court's order. We lack jurisdiction over Ogletree's appeal and therefore dismiss Ogletree's appeal for want of jurisdiction.

Expert Report as to The Hospital

The Hospital contends that because the reports by Burwell and SMLI addressed the standard of care and the Hospital's alleged breaches of that standard, it had no basis on which to object to those reports. Instead, the Hospital asserts that it waited for the urologist's report that appellees stated would "hopefully" be provided within a week, expecting that the new report would address the element of causation, but when no such report was filed, it moved to dismiss. The Hospital argues that it was not required to object to the absence of the report within twenty-one days of the initial reports and that because appellees failed to produce a timely report addressing causation, the trial court was required to grant the Hospital's motion to dismiss. We disagree.

The statute is clear that a medical defendant whose conduct is implicated by a report must object to any...