Herrera v. Seton Northwest Hosp.
| Decision Date | 23 June 2006 |
| Docket Number | No. 03-05-00115-CV.,03-05-00115-CV. |
| Citation | 212 S.W.3d 452 |
| Parties | Jose HERRERA, Appellant, v. SETON NORTHWEST HOSPITAL and Francois A. Gordan, M.D., Appellees. |
| Court | Texas Court of Appeals |
Sergio Gonzalez, El Paso, for appellant.
Alice M. Rutledge, Fred E. Davis, Davis & Davis, PC, Austin, for Gordan.
Maria Cantu Hexsel, J. Stephen Dillawn, Germer Gertz Beaman & Brown, LLP, Austin, for Seton Northwest Hospital.
Before Justices B.A. SMITH, PURYEAR and PEMBERTON.
In this appeal, we must decide whether the district court was required to dismiss a medical malpractice suit based on the claimant's failure to serve an expert report and curriculum vitae in compliance with chapter 74 of the civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (b) (West 2005). Because we conclude that section 74.351(b) mandated dismissal of the claimant's suit and divested the district court of discretion to rule otherwise, we affirm the district court's order of dismissal. See id. § 74.351(b).
The record shows that Jose Herrera sued Seton Northwest Hospital and Francois A. Gordon, M.D.1 on May 14, 2004, alleging that they misdiagnosed his ruptured appendix as food poisoning. Under chapter 74, Herrera was required to serve Dr. Gordon and the Hospital with a copy of a report from his expert and his expert's curriculum vitae no later than September 11, 2004—the 120th day after filing his suit. See id. § 74.351(a). The expert report provides a summary of the expert's opinions regarding the applicable standard of care, how the claimant's physician or health care provider failed to meet that standard, and the causal relationship between that failure and the claimant's injury, harm, or damages. Id. § 74.351(r)(6). The record reveals that Herrera filed with the district court an expert report on July 16, 2004, in a document titled "Notice of Filing Expert Affidavit." Herrera filed the expert's curriculum vitae with the court on September 21, 2004, in a document titled "First Amended Notice of Filing Expert Affidavit." Neither of these documents contain any certification that copies of the report and the curriculum vitae filed with the court were served on Dr. Gordon, the Hospital, or their respective counsel. See Tex.R. Civ. P. 21a.
Dr. Gordon and the Hospital moved to dismiss Herrera's claim under section 74.351, alleging that they did not receive copies of the previously-filed expert report and curriculum vitae until October 5, 2004, when Herrera sent them both of the documents by facsimile transmission.
Herrera responded that, under the "mailbox rule" in Texas Rule of Civil Procedure 5, the expert report was "constructively delivered" to Dr. Gordon and the Hospital when Herrera placed the properly addressed report into the control of the United States Postal Service. See Tex.R. Civ. P. 5.2 Herrera stated that he "was under the impression that the curriculum vitae had also been forwarded properly with same." Alternatively, Herrera argued that his claim should be allowed to proceed under equitable principles because the failure to comply with the requirements of section 74.351 was not his fault and because his attorney had attempted to comply with the statute in good faith. Herrera equated dismissal of his claim with the imposition of "death penalty sanctions" in the discovery context, see Tex.R. Civ. P. 215.2, and argued that it would be inappropriate for the court to impose such sanctions "as a result of the inadvertent failure to deliver documents to [Dr. Gordon and the Hospital] within the times set out in section 74.351."
Herrera's final argument in response to the motion to dismiss was that section 74.351's restrictions were unconstitutional. He urged that the requirements of section 74.351 and its lack of equity-based provisions —such as those available under chapter 74's predecessor, article 4590i3— constitute arbitrary and unreasonable restrictions on his claim, violate the equal protection and due process guarantees of the state and federal constitutions, and violate the Texas Constitution's open courts provision.
After a hearing on November 1, 2004, the district court granted Dr. Gordon's and the Hospital's motions to dismiss with prejudice.
Herrera filed a motion for new trial, relying on a November 30, 2004 affidavit from his counsel's secretary as evidence that Dr. Gordon and the Hospital were timely served with the expert's report. The secretary averred that "[o]n or about July 13, 2004, [she] drafted the Notice of Filing Expert Affidavit and [proceeded] to have same filed and mailed a copy via regular mail to opposing counsel." Her affidavit did not address service of the expert's curriculum vitae. The record shows that Herrera obtained an "order for a setting" on his motion for new trial, but never obtained a hearing on it. Consequently, the motion for new trial was overruled by operation of law seventy-five days after the court signed its order of dismissal. See Tex.R. Civ. P. 329b(c).
Herrera brings two issues on appeal, arguing that the district court abused its discretion by dismissing the case and by failing to grant Herrera's motion for new trial.
Because the resolution of Herrera's issues depends upon his compliance with the statutory requirements governing health care liability claims, we begin by briefly reviewing those requirements. It is undisputed that Herrera's suit against Dr. Gordon and the Hospital is governed by chapter 74 of the civil practice and remedies code. See Tex. Civ. Prac. & Rem.Code Ann. §§ 74.001-.507 (West 2005 & Supp. 2005). Chapter 74 requires claimants to provide expert reports in support of their suit, summarizing the expert's opinions regarding the applicable standard of care, how the claimant's physician or health care provider failed to meet that standard, and the causal relationship between that failure and the claimant's injury, harm, or damages. Id. § 74.351(r)(6). Under the version of section 74.351(a) applicable to this case, a claimant must serve the expert report with the curriculum vitae of each expert listed in the report, within 120 days from the date that the claim was filed:
In a health care liability claim, a claimant shall, not later than the 120th day after the date the claim was filed, serve on each party or the party's attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted. The date for serving the report may be extended by written agreement of the affected parties. Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived.
Act of June 2, 2003, 78th Leg., R.S., ch. 205, § 10.01, 2003 Tex. Gen. Laws 847, 875, amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590 (current version at Tex. Civ. Prac. & Rem.Code Ann. § 74.351(a) (West Supp.2005)).4
Because Herrera filed suit on May 14, 2004, his statutory deadline to serve the report and curriculum vitae—unless the parties agreed otherwise—was September 11, 2004. See id. § 74.351(a).
If a claimant fails to serve the report with the curriculum vitae on or before the statutory deadline, and the affected physician or health care provider files a motion to dismiss the claim under section 74.351(b), the court has no alternative but to dismiss the claim with prejudice:
(b) If, as to a defendant physician or health care provider, an expert report has not been served within the period specified by Subsection (a) [the 120-day period], the court, on the motion of the affected physician or health care provider, shall, subject to Subsection (c),5 enter an order that:
(1) awards to the affected physician or health care provider reasonable attorney's fees and costs of court incurred by the physician or health care provider; and
(2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.
Id. § 74.351(b) (emphasis added); see also Boothe v. Dixon, 180 S.W.3d 915, 918 (Tex. App.-Dallas 2005, no pet.). Thus, our threshold inquiry is whether Herrera complied with section 74.351(a) by serving his expert's report and curriculum vitae before the 120-day statutory deadline.
Service of expert report under chapter 74
In his first issue, Herrera argues that the district court abused its discretion by dismissing his case. He urges this Court to find that he complied with section 74.351(a) by "constructive delivery" of the expert report and curriculum vitae using regular mail. See Tex.R. Civ. P. 5. Alternatively, if section 74.351 does not authorize service by regular mail, Herrera suggests that the court should have granted a 30-day extension to him for his good-faith attempt at service, either under section 74.351(c) or due to "equitable considerations." See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(c). Herrera's final assertion is that if section 74.351 prevents him from curing his untimely service of an expert report and curriculum vitae, the statute must be unconstitutional. These propositions are without merit.
Herrera's "constructive delivery" argument is not supported by rule of civil procedure 5. Under rule 5, documents that are properly addressed, stamped and deposited in the mail on or before a filing deadline will be deemed timely filed, so long as the court's clerk receives them within ten days of their mailing. See Tex.R. Civ. P. 5.6 Herrera's reliance on rule 5 is misplaced because the parties do not dispute that Herrera's expert report and curriculum vitae were filed. The crux of their dispute is whether copies of these filed documents were served on the parties in accordance with section 74.351(a).
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