In re Samonte

• Decision Date: 07 April 2005
• Docket Number: No. 08-04-00253-CV.,08-04-00253-CV.
• Citation: 163 S.W.3d 229
• Parties: In re Miguel SAMONTE, Jr., M.D., Ostensible Agent of Las Palmas Medical Center, Relator.
• Court: Texas Supreme Court

163 S.W.3d 229

In re Miguel SAMONTE, Jr., M.D., Ostensible Agent of Las Palmas Medical Center, Relator.

No. 08-04-00253-CV.

Court of Appeals of Texas, El Paso.

April 7, 2005.

COPYRIGHT MATERIAL OMITTED

Karen L. Landinger, Ray, Valdez, McChristian & Jeans, P.C., El Paso, for Relator.

Gonzalo Garcia, El Paso, pro se.

Abelardo P. Bernal, Oaxaca, Bernal & Assoc., El Paso, for Interested Part.

Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.

OPINION

RICHARD BARAJAS, Chief Justice.

In this mandamus proceeding, Miguel Samonte, Jr., M.D. complains of the trial court's denial of his motion to dismiss a medical malpractice suit. The motion challenged the sufficiency of the unsigned and undated expert report filed by the plaintiff below. The report also failed to meet the minimum statutory requirements and did not reflect that the report was prepared by an expert capable of rendering an expert opinion regarding the applicable standard of care, failed to include the qualifications, training, experience, current or past employment or specialty of the testifying expert, is unsigned and undated. Relator raises the question of whether such a report, as tendered to the defendant, demonstrates a good faith effort on the part of plaintiff to comply with TEX. REV.CIV. STAT. ANN. art 4590i, now TEX. CIV. PRAC. & REM CODE ANN. § 74.001 et seq. Finding that the reports were filed in good faith, the trial court denied the motion to dismiss. We conditionally grant relief.

I. FACTUAL SUMMARY

The underlying cause of action arises from a medical malpractice case involving the care and treatment of Ricardo Rangel. Rangel had elected to undergo carpel tunnel surgery to be conducted by Dr. Andrew Joseph Palafox at the Las Palmas Medical Center on November 1, 2002. Defendant Miguel Samonte, Jr., M.D. was the anesthesiologist managing the anesthesia of Ricardo Rangel. Subsequent to the surgery, Ricardo Rangel suffered a cardiac arrest. All efforts to resuscitate him were not successful and he was pronounced dead approximately one and a half hours after the surgery.

The decedent's mother, Julia Rangel, filed her Original Petition against Samonte and the other treating physician present during Ricardo Rangel's surgery and the hospital, asserting various claims of medical negligence.¹

The plaintiff timely filed an expert's report as required by the Medical Liability and Insurance Improvement Act (the Act).² The report is purportedly prepared by Dr. George Mychaskiw II, D.O. and is included in the appellate record. Relator has urged that the report as prepared and produced is deficient for a variety of reasons including substantive defects as to the form and content of the report. He contends that it does not comport with the requirements of the Texas Medical Liability and Insurance Improvement Act and, therefore, the cause against him should be dismissed.

Samonte moved to dismiss the Plaintiff's claims against him and the court conducted a hearing to address the adequacy of the report. Samonte argued that the report was deficient because it did not state that Mychaskiw had knowledge of or was qualified to discuss the accepted standards of care, did not state that the expert was board certified, whether he was practicing medicine at the time, or whether he was qualified on the basis of training or experience to offer a report, and was not signed. He also argued that the purported expert's curriculum vitae was not included with the report. Plaintiff's counsel argued that the tendered report should be considered a good faith effort to comply with the requirements of the act.

After a hearing on the issue, the trial court denied Samonte's motion. Relator has filed an Original Petition for Writ of Mandamus seeking relief from this Court and raising five issues on appeal. Issues One, Two, and Four attack the trial court's failure to dismiss the cause on the grounds that the expert's report fails to comply with the requirements of the Act, Issue Three asserts that the plaintiff's report as produced does not equate to a good faith attempt to comply with the Act, and finally, that the defendant does not have an adequate remedy at law and is therefore entitled to mandamus relief. For the reasons stated below, we agree with Relator and conditionally grant relief as noted.

II. THE STATUTE

The Medical Liability and Insurance Improvement Act (the Act) was enacted by the Texas Legislature to curtail frivolous claims. Hart v. Wright, 16 S.W.3d 872, 876 (Tex.App.-Fort Worth 2000, pet. denied); Horsley-Layman v. Angeles, 968 S.W.2d 533, 537 (Tex.App.Texarkana 1998, no pet.). In order to encourage the screening of medical malpractice claims by an expert prior to filing, the Act requires a plaintiff to provide each defending physician or health care provider with one or more expert reports relating to liability and causation. Wood v. Tice, 988 S.W.2d 829, 830 (Tex.App.-San Antonio 1999, pet. denied); see TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(d). The expert report, along with a curriculum vitae of each expert, must be furnished to the defendant not later than the 180th day after the date on which a health care liability claim is filed or the last day of any extended period as permitted under the statute. TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(d). If a plaintiff fails to comply with this provision and the defendant files a motion seeking sanctions pursuant to Section 13.01(e), a trial court has no discretion and must enter an order dismissing the case with prejudice. TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(e)(3); Hart, 16 S.W.3d at 876. Where an expert report is tendered, the defendant may challenge the adequacy of the report. TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(l); Hart, 16 S.W.3d at 876. The trial court is authorized to grant a motion to dismiss "only if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the definition of an expert report in Subsection (r)(6) of this section." TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(l). An expert report is defined as a fair summary of the expert's opinions regarding: (1) applicable standards of care, (2) the manner in which the care rendered by the physician or health care provider failed to meet the standards, and (3) the causal relationship between that failure and the injury, harm, or damages claimed. Id. § 13.01(r)(6).

III. STANDARD OF REVIEW

We apply an abuse of discretion standard when reviewing a trial court's ruling on a dismissal under Section 13.01(e)(3). American Transitional Care Ctrs. of Texas, Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001); Hart, 16 S.W.3d at 875; Tibbetts v. Gagliardi, 2 S.W.3d 659, 663 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). Mandamus will lie only to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig.proceeding). A clear abuse of discretion warranting correction by mandamus occurs when a court issues a decision which is without basis or reference to guiding principles of law. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (orig.proceeding). An appellate court rarely interferes with the trial court's exercise of discretion and we may not substitute our judgment for that of the trial court. Walker, 827 S.W.2d at 839-40. The relator must therefore establish that the trial court could reasonably have reached only one decision. Id. at 840. Even if we would have decided the issue differently, we cannot disturb the trial court's decision unless it is shown to be arbitrary and unreasonable. Id. With respect to a trial court's determination of the legal principles controlling its ruling, the standard is much less deferential. A trial court has no discretion in determining what the law is or applying the law to the facts. A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion and may result in appellate reversal by extraordinary writ. Id.

An appellate court will deny mandamus relief if another remedy, usually appeal, is available and adequate. Id. Mandamus is intended to be an extraordinary remedy, available only in limited circumstances. The writ will issue only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex.1989).

IV. INADEQUACY OF THE EXPERT'S REPORT

The sole question for the trial court was whether the report tendered represented a good faith effort to comply with the statutory definition of an expert report. Palacios, 46 S.W.3d at 875. Because the Act focuses on the contents of the report, the only information relevant to the inquiry is contained within the four corners of the document. Id. at 878. The trial court should look no further than the report itself in determining whether it constitutes a fair summary of the expert's opinions about the applicable standard of care, the manner in which the care provided failed to meet that standard, and the causal relationship between that failure and the claimed injury. Id. Further, the report itself must establish the expert's qualifications on the basis of training and experience. See In re Windisch, 138 S.W.3d 507, 511 (Tex.App.-Amarillo 2004, orig. proceeding).

A trial court may grant a motion challenging the adequacy of an expert report only if it appears, after hearing, that the report does not constitute a good faith effort to comply with the definition of an expert report. TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(l). An "expert report" is defined as "a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury,...