In re McAllen Hosps., L.P., NUMBER 13-20-00210-CV

Decision Date22 May 2020
Docket NumberNUMBER 13-20-00210-CV
PartiesIN RE MCALLEN HOSPITALS, L.P. D/B/A MCALLEN MEDICAL CENTER, SOUTH TEXAS HEALTH SYSTEM, and MCALLEN MEDICAL CENTER, INC.
CourtTexas Court of Appeals

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Benavides, Perkes, and Tijerina

Memorandum Opinion by Justice Perkes1

By petition for writ of mandamus, relators McAllen Hospitals, L.P. d/b/a McAllen Medical Center, South Texas Health System, and McAllen Medical Center, Inc., seek to compel the trial court to rule on (1) relators' motion to dismiss the healthcare liability claim filed against them under the Texas Medical Liability Act (TMLA), and (2) relators' motionfor summary judgment.2 Both motions have been pending since June 7, 2019. We conditionally grant the relators' petition for writ of mandamus.

I. BACKGROUND

On December 14, 2018, real parties in interest and plaintiffs below, Juana Laguna and Joanna Gonzalez Acevedo, as administrator of the estate of Regino Gonzalez Jr., filed their second amended original petition, which is the live pleading at issue, against Ray R. Fulp III, DO; Ray Fulp Orthopedics, PA; Robert C. Fountila, DO; McAllen Hospitals, LP; McAllen Medical Center; South Texas Health System; and McAllen Medical Center, Inc. According to this petition, Regino suffered a spontaneous fracture of his left femur while engaged in routine movement. The plaintiffs alleged that the defendants failed to properly screen, evaluate, and treat Regino because they treated the fracture by surgically inserting a rod, but failed to diagnose the injury as a pathological fracture caused by osteosarcoma, an aggressive malignant bone tumor. The plaintiffs also contended that the defendants' failure to diagnose the osteosarcoma and the placement of the rod resulted in the cancer spreading into Regino's leg, the ultimate amputation of the limb, remote metastases of the cancer, and ultimately, Regino's death. On February 4, 2019, relators filed their original answer to the lawsuit.

On June 7, 2019, relators filed a traditional motion for summary judgment contending that the plaintiffs' claims against them were barred by the statute of limitations. See TEX. R. CIV. P. 166a. According to the relators' motion, the plaintiffs' original petition was filed in this case on March 5, 2013, and the first amended petition was filed on September 24, 2013. The original petition was filed by Juana Laguna, individually and asnext friend of Regino Gonzalez Jr., a minor child, and Regino Gonzalez Sr., against Ray R. Fulp, III, DO; Ray Fulp Orthopedics, PA; Marla T. Camacho, MD; Francisco Torres, MD; Robert C. Fountila, DO; Radiology & Imaging of South Texas, LLP; and McAllen Hospitals, LP d/b/a McAllen Medical Center. The first amended petition omitted Regino Gonzalez Sr. as a plaintiff and named Regino Gonzalez Jr. as a party because he had reached the age of majority at that time. Relators alleged that the "plaintiffs dismissed the hospital from the case by not naming the hospital as a Defendant in the Introduction, the list of Defendants or the allegations." The relators asserted that the plaintiffs filed their second amended petition on December 14, 2018, after Regino's death, and "named the hospital again as a Defendant after having dismissed the hospital in the first amended petition over five years earlier." Relators thus argued that the plaintiffs' claims were barred by the statute of limitations under § 74.251 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.251 (providing the statute of limitations for health care liability claims); CHRISTUS Health Gulf Coast v. Carswell, 505 S.W.3d 528, 537-38 (Tex. 2016).

On June 7, 2019, relators also filed a motion to dismiss the case against them pursuant to § 74.351(b) of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b) (requiring a plaintiff alleging a health care liability claim to file an expert report upon each defendant within a specified time after the defendant's answer is filed); Ogletree v. Matthews, 262 S.W.3d 316, 319 (Tex. 2007). The motion to dismiss recounted the history of the plaintiffs' amended pleadings as stated in relators' motion for summary judgment and alleged that plaintiffs "never served anexpert report on the hospital at any time." The relators thus argued that dismissal of the case was mandatory.

On June 10, 2019, the trial court signed orders setting the relators' motion for summary judgment and motion to dismiss for hearing on July 31, 2019.

On July 23, 2019, the plaintiffs filed a response to relators' motion for summary judgment. They asserted that their claims were not barred by the statute of limitations because, in 2013, they had sued McAllen Hospitals, LP d/b/a McAllen Medical Center for general negligence and subsequently nonsuited those claims. The plaintiffs asserted that the claims that they were raising against those defendants in 2018 were "wholly different" from the general negligence claims raised in 2013 because the new claims were based on the tort of "malicious credentialing," which they did not discover and reasonably could not have discovered until August 29, 2018, or August 30, 2018. The plaintiffs further asserted that they had never previously sued South Texas Health Systems and McAllen Medical Center, Inc.

On July 26, 2019, the plaintiffs filed a response to relators' motion to dismiss. The plaintiffs alleged that the relators' motion to dismiss was factually incorrect because the plaintiffs had served ten expert reports, collectively, in a timely fashion on May 31, 2019 and June 3, 2019.

On July 31, 2019, the trial court held a hearing on relators' motion to dismiss and motion for summary judgment as scheduled; however, the trial court did not issue a ruling on either motion at that time.

On December 3, 2019, relators filed a motion asking the trial court to hold a status conference on the case. The relators' motion stated that the trial court had taken theirmotion for summary judgment and motion to dismiss "under advisement" on July 31, 2019, and the relators requested the trial court to set a status hearing and rule on these pending motions.

On December 4, 2019, the trial court ordered the parties to mediate the case before the end of the month and the trial court further set the case for a status hearing to be held on January 15, 2020.

On December 18, 2019, the plaintiffs filed a motion to compel discovery against relators. In response, on January 2, 2020, relators filed a motion for protective order and motion to stay all discovery. Relators alleged that all discovery was stayed under § 74.351(s) of the civil practice and remedies code "until final judicial determination that Plaintiffs have complied with the requirements of Chapter 74." See TEX. CIV. PRAC. & REM. CODE ANN.§ 74.351(s) (imposing a stay on "all discovery," with limited, specified exceptions, until an expert report has been filed). Relators alleged that the plaintiffs' expert report failed to meet the TMLA's statutory requirements; thus, relators had not been served with a report under the TMLA. Relators thus asserted that discovery was stayed until the trial court ruled on their motion to dismiss based on the sufficiency and timeliness of the plaintiffs' expert report.

On January 6, 2020, the trial court signed an order setting relators' motion for protective order and motion to stay for hearing on January 15, 2020. The status hearing was held on January 15, 2020; however, the trial court did not issue a ruling on either the motion to dismiss or the motion for summary judgment.

On February 5, 2020, relators filed a second motion requesting the trial court to hold a status conference. The motion stated that the trial court had held the first statusconference, as requested, on January 15, 2020 and the relators had thereafter filed proposed orders on their motion to dismiss and motion for summary judgment. Relators asserted that they had requested the trial court to rule on these pending motions at the January 15, 2020 status hearing.

On February 5, 2020, the trial court signed an order setting the relators' second motion for status conference to be heard on March 11, 2020.

On March 10, 2020, the plaintiffs filed a summary of the pending motions in preparation for the upcoming status conference. The plaintiffs' summary includes the relators' motion for summary judgment and motion to dismiss, the pleadings relevant to the discovery dispute between relators and plaintiffs, and additional motions filed by other defendants. That same day, relators also filed a list of the pleadings, motions, responses, and objections pertaining to the matters that would be under consideration at the upcoming hearing.

On March 11, 2020, the status hearing proceeded in chambers. The trial court advised the parties that he would make rulings on the pending motions.

After the trial court failed to issue orders on relators' motion to dismiss or motion for summary judgment, relators filed this original proceeding on April 16, 2020. They present three issues through which they assert: (1) the trial court abused its discretion by refusing to rule on their motion to dismiss; (2) the trial court abused its discretion by refusing to rule on their motion for summary judgment; and (3) they lack an adequate remedy by appeal.

This Court requested that the real parties in interest, or any others whose interest would be directly affected by the relief sought, file a response to the petition for writ ofmandamus. See TEX. R. APP. P. 52.2, 52.4, 52.8. The plaintiffs filed a response to the petition which primarily addresses the substantive merits of the plaintiffs' claims regarding their causes of actions, the statute of limitations, and the timeliness and adequacy of their expert reports. They argue that this is "an extremely complicated and complex case" involving pending...

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