Hebner v. Reddy

• Decision Date: 27 May 2016
• Docket Number: NO. 14–0593,14–0593
• Citation: 498 S.W.3d 37
• Parties: Haley Hebner and Darrin Charles Scott, Individually and as Next Friends of R.M.S., a Minor, Petitioners, v. Nagakrishna Reddy, M.D., and New Braunfels OB/GYN, P.A., Respondents
• Court: Texas Supreme Court

498 S.W.3d 37

Haley Hebner and Darrin Charles Scott, Individually and as Next Friends of R.M.S., a Minor, Petitioners,

v.Nagakrishna Reddy, M.D., and New Braunfels OB/GYN, P.A., Respondents

NO. 14–0593

Supreme Court of Texas.

Argued October 12, 2015

OPINION DELIVERED: May 27, 2016

Rehearing Denied September 23, 2016

Craig William Carlson, The Carlson Law Firm, P.C., Killeen, TX, Eugene W. Brees II, Michelle Mei-Hsue Cheng, William O. Whitehurst Jr., Cheng Alsaffar & Higginbotham PLLC, Austin, TX, for Petitioners.

Diana L. Faust, Kyle M. Burke, R. Brent Cooper, Cooper & Scully, P.C., Dallas, TX, Rosemary L. Hollan, Hollan Law Firm, P.C, San Antonio TX, for Respondents.

JUSTICE BROWN delivered the opinion of the Court, in which CHIEF JUSTICE HECHT, JUSTICE GREEN, JUSTICE GUZMAN, JUSTICE LEHRMANN, and JUSTICE DEVINE joined.

The Texas Medical Liability Act (Act) requires claimants pursuing a healthcare-liability claim to serve an expert report on each party no later than the 120th day after filing an original petition. About six months before actually filing suit, the plaintiffs in this case voluntarily served an expert report concurrently with a pre-suit notice letter. After filing suit, the plaintiffs attempted to serve the same previously served expert report on the defendant but mistakenly served another report–one from the same expert but addressing an entirely different patient, doctor, and claim. The defendant made no objection, choosing instead to wait out passage of the 120–day deadline before moving to dismiss the plaintiffs' claims for failure to serve an expert report. The trial court denied that motion but the court of appeals reversed, holding that the plaintiffs failed to timely serve a qualifying expert report because pre-suit service of the correct report did not satisfy the Act's requirements and the later incorrect report fell below the Act's minimal standard as required to maintain a suit.

We disagree. Nothing in the Act compels the conclusion that a plaintiff cannot satisfy the expert-report requirement through pre-suit service of an otherwise satisfactory expert report. Moreover, the court of appeals' conclusion frustrates the Act's purpose, which is to eliminate frivolous healthcare-liability claims, not potentially meritorious ones. Therefore, the plaintiffs' mistaken post-suit service of the incorrect expert report is of no consequence—the plaintiffs met their burden with pre-suit service of the correct report. Accordingly, we reverse the court of appeals.

I

A

On February 11, 2010, a baby girl, R.M.S., was born to Haley Hebner and Darrin Scott (collectively Hebner) by emergency caesarean section. Tragically, R.M.S. died the next day. On August 12, 2011, Hebner sent the delivering physician, Nagakrishna Reddy, M.D., a pre-suit notice letter via certified mail, as the Act requires. See Tex. Civ. Prac. & Rem. Code § 74.051(a). Though not required by the Act until 120 days after filing an original petition, see id. § 74.351(a), Hebner included with the pre-suit notice letter the expert report and curriculum vitae of expert Barry Schifrin, M.D. (the First Report). The First Report addressed Reddy, her treatment of Hebner and R.M.S., and Hebner's healthcare-liability claims. Reddy acknowledges she received the First Report and does not dispute the First Report's compliance with the Act's substantive requirements.

On February 22, 2012, about six months after sending the pre-suit notice letter and First Report, Hebner sued Reddy¹ alleging that her negligent treatment proximately caused R.M.S.'s death. Hebner mistakenly included with the original petition an expert report Dr. Schifrin prepared for a different case involving a separate patient and doctor (the Second Report). It is undisputed that the Second Report does not implicate Reddy, Hebner, or R.M.S. Reddy did not object to the sufficiency of either the First Report or the Second Report.² Instead, Reddy waited for the expiration of the 120–day deadline for serving an expert report following filing of an original petition.³ On June 29, 2012, after the 120 days had passed, Reddy filed a motion to dismiss Hebner's claims for failure to timely file an expert report.⁴ The trial court denied the motion, and Reddy filed an interlocutory appeal.⁵

The court of appeals reversed, holding pre-suit service of the First Report did not “satisf[y] the relevant statutory requirements” and the Second Report did “not constitute [an] expert report[ ] as required” by the Act. Reddy, 435 S.W.3d at 328, 329. Justice Pemberton dissented. He noted that Hebner had obtained and served a qualifying expert report “well in advance of the 120–day deadline”—a fact that was “of tremendous potential significance under the statutory scheme the Legislature created in the [Act].” Id. at 334, 335 (Pemberton, J., dissenting). We granted review.

B

The Texas Medical Liability Act aims to “identify and eliminate frivolous healthcare[-] liability claims expeditiously, while preserving those of potential merit. To further this goal, the statute sets a deadline for the claimant to substantiate the underlying healthcare[-]liability claim with expert reports.” Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex.2011) (internal citations omitted). Under the version of the Act in effect when the events giving rise to this litigation occurred, a claimant asserting a healthcare-liability claim must serve a qualifying expert report “not later than the 120th day after the date the original petition was filed” on each party or that party's attorney. See Tex. Civ. Prac. & Rem. Code § 74.351(a) (as amended in 2005). Once a defendant has been served with an expert report, he must file any objections “not later than the 21st day after the date [the report] was served, failing which all objections are waived.”⁶ Id. On the other hand, if a claimant fails to timely serve a qualifying expert report, the trial court “shall ... dismiss[ ] the claim ... with prejudice to the refiling of the claim.” Id. § 74.351(b).⁷

The parties agree that the Act requires mandatory dismissal when a claimant fails to timely serve a qualifying expert report. They disagree, however, on whether serving an eventual named party with a qualifying expert report before filing suit, but after providing notice under section 74.051, meets section 74.351's expert-report deadline. Reddy argues that the plain language of section 74.351 and this Court's precedent dictate that an expert report can be served only on a “party”—one who has been named in a lawsuit. Accordingly, the period in which an expert report can be served does not begin until suit has been filed and any report served before then cannot satisfy section 74.351. In this case, the only report served on Reddy after she was sued—the Second Report—was for a completely different patient, doctor, and claim. So, Reddy argues, the trial court abused its discretion when it refused to grant Reddy's motion to dismiss.

Hebner urges that courts should not entertain an interpretation of section 74.351 that vitiates the Legislature's intent to weed out frivolous claims while preserving potentially meritorious ones. Hebner argues her post-suit service of the Second Report should be viewed as an “obvious attempt” to provide Reddy with the correct report a second time. Further, without dispute Hebner actually served Reddy with a qualifying expert report—the First Report—“not later than” the 120th day after the petition was filed. Allowing pre-suit service to satisfy the requirements of section 74.351 furthers the Legislature's intent by preserving a potentially meritorious claim. And it further recognizes the potential constitutional implications of dismissing Hebner's case without giving her an opportunity to have a hearing on the merits.

II

A

Whether an expert report served concurrently with a pre-suit notice letter is timely under section 74.351(a) is a matter of statutory construction, a legal question we review de novo. See Tex. W. Oaks Hosp., LP v. Williams, 371 S.W.3d 171, 177 (Tex.2012). The primary goal when interpreting a statute is to effectuate “the Legislature's intent as expressed by the plain and common meaning of the statute's words.” F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex.2007). “Where statutory text is clear, that text is determinative of legislative intent unless the plain meaning of the statute's words would produce an absurd result.” Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex.2012). However, when, as here, “the language is susceptible of two constructions, one of which will carry out and the other defeat [its] manifest object, [the statute] should receive the former construction.” Citizens Bank of Bryan v. First State Bank, 580 S.W.2d 344, 348 (Tex.1979) (cited in Antonin Scalia & Bryan A. Garner, Reading Law 63 (2012)).

In attempting to quickly jettison meritless lawsuits and save parties the expense of protracted litigation, the Act's expert-report requirement serves two purposes: (1) it “inform[s] the defendant of the specific conduct the plaintiff has called into question[;]” and (2) it “provide [s] a basis for the trial court to conclude that the claims have merit.” Palacios, 46 S.W.3d at 879. As we have said, “knowing what specific conduct the plaintiff's experts have called into question is critical” to the defendant's and the court's ability to evaluate the viability of a claim. Id. at 876–77. Thus, “eliciting an expert's opinions early in the litigation [is] an obvious place to start in attempting to reduce frivolous lawsuits.” Id. at 877. In line with this objective, the Act also requires anyone asserting a claim under the Act to provide written notice by certified mail to “each physician or health care provider against whom such claim is being made at least 60 days before the filing of a suit.”

Tex. Civ. Prac. & Rem. Code § 74.051(a) ; see also Williams, 371 S.W.3d at 189. The purpose of the pre-suit notice letter is “to...