Langley v. Jernigan

Citation76 S.W.3d 752
Decision Date01 May 2002
Docket NumberNo. 10-00-373-CV.,10-00-373-CV.
PartiesMarie LANGLEY, Individually and as Representative of the Estate of John Langley and Mariah Langley, a Minor, Appellants, v. Floyd E. JERNIGAN, M.D., Appellee.
CourtCourt of Appeals of Texas
76 S.W.3d 752
Marie LANGLEY, Individually and as Representative of the Estate of John Langley and Mariah Langley, a Minor, Appellants,
Floyd E. JERNIGAN, M.D., Appellee.
No. 10-00-373-CV.
Court of Appeals of Texas, Waco.
May 1, 2002.
Rehearing Overruled May 22, 2002.

[76 S.W.3d 753]

H.K. Wasoff, Jr., Thomas B. Cowart, Windle Turley, P.C., Dallas, for appellant.

Keith C. Cameron, Naman, Howell, Smith & Lee, P.C., Austin, Nancy Morrison, Naman, Howell, Smith & Lee, P.C., Waco, Bob Burleson, Bowmer, Courtney, Burleson, Norman & Moore, Temple, for appellee.

Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.


BILL VANCE, Justice.

When forty-six-year-old John Langley began to experience pain in his abdomen, he went to the emergency room at Providence Hospital in Waco, where he was later admitted. It was October 1996. He

76 S.W.3d 754

was treated by several physicians, including Appellee Jernigan who was the attending physician, i.e., he had the primary responsibility for Langley's treatment. Emergency surgery was performed, but within two days Langley died. He left a wife, Marie, and a young daughter, Mariah. In September 1998, Marie, individually and as representative of Langley's estate and of Mariah, sued Providence and six physicians, including Jernigan.

In 2000, Jernigan filed a motion to dismiss, asserting that the requirements of article 4590i, section 13.01 (pertaining to expert reports) of the Medical Liability and Insurance Improvement Act had not been complied with. Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01 (Vernon Supp. 2002). In July 2000, the trial court granted the motion and ordered all claims between Appellants and Jernigan severed into a separate case. Marie, individually and as representative, appeals from that final judgment.

Procedural Background

Section 13.01(d) requires a plaintiff in a medical malpractice case, within 180 days of filing the lawsuit, to furnish the defendant with an expert report and curriculum vitae. Id. 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, harm, or damages claimed." Id. at 13.01(r)(6). A combination of reports can supply the necessary information to satisfy the definition. Id. at 13.01(i). In October 1998, a month after filing the lawsuit, Appellants furnished two expert reports to the defendants, including Jernigan, one from Dr. Spiro, and one written jointly by Dr. McKhann and Dr. Weihl.

Twenty months later, on June 23, 2000, Jernigan filed a "Motion to Dismiss with Prejudice and to Sever" under section 13.01(e). Id. The motion asserted that the expert report by McKhann and Weihl (1) did not mention Jernigan, (2) did not describe the applicable standard of care of a family practitioner such as Jernigan, (3) did not state that Jernigan violated any standard of care, and (4) did not identify a causal relationship between any conduct by Jernigan and Langley's death. The motion made the same complaints about the Spiro report as it did about the McKhann-Weihl report, with the exception that the Spiro report made one passing reference to Jernigan. Appellants filed a response asserting that (a) Jernigan should not have been allowed to wait almost two years before raising the issue, resulting in the expiration of the thirty-day extension provisions in section 13.01(f, g), or (b) they should be granted an extension of time in which to file a supplemental report, which was attached to the response. The trial court dismissed Appellants' claims, with prejudice. Id. § 13.01(e).

On appeal, Appellants assert four reasons why the cause should not have been dismissed:

1. Jernigan waived his complaint by waiting almost two years to make it, during which period he fully participated in discovery.

2. The reports do comply with section 13.01(r)(6).

3. If the reports do not comply with 13.01(r)(6), they reflected a good faith effort to do so. § 13.01(l).

4. The trial court should have granted the request for a thirty-day grace period so Appellants could file a supplemental report. § 13.01(g).

76 S.W.3d 755

Legal Principles

The Supreme Court recently construed section 13.01 in American Transitional Care v. Palacios, 46 S.W.3d 873 (Tex.2001). Based on that case, we discern the following nine rules about expert reports:

1. A plaintiff has 180 days from filing suit to furnish the defendant with an expert report and a curriculum vitae for each expert on which the plaintiff relies, or, in the alternative, to nonsuit the cause. Id. at 877 (citing § 13.01(d)).

2. If a plaintiff does not file a report or vitae "within the time period allowed," the defendant may move to dismiss the cause, in which event the trial court "must sanction the plaintiff by dismissing the cause with prejudice, awarding costs and attorney's fees ...." Id. (citing § 13.01(e)).

3. If the plaintiff does timely file an expert report, but its contents are inadequate to comply with the requirements contained in subsection (r)(6), the defendant may move to dismiss the cause for inadequacy of the report, and if, after hearing, the trial court finds that the report "does not represent a good faith effort to comply with the definition of an expert report in Subsection (r)(6)" and the time for filing a report has passed, the trial court "must then dismiss with prejudice the claims against the defendant." Id. (citing § 13.01(e), (l.)

4. "Adequacy" is based on whether the report "represents a good-faith effort to comply with the statutory definition of an expert report" contained in section 13.01(r)(6). Id. at 878 (citing 13.01(l)). "[T]he only information relevant to the inquiry is within the four corners of the document." Id.

5. Section 13.01(r)(6) "requires" that the report provide "a fair summary of the expert's opinions about the applicable standard of care, the manner in which the care failed to meet that standard, and the causal relationship between that failure and the claimed injury." Id. at 878 (citing § 13.01(r)(6)). Palacios says the report also (1) "must inform the defendant of the specific conduct the plaintiff has called into question," and (2) "must provide a basis for the trial court to conclude that the claims have merit." Id. at 879.

6. A report is inadequate if (1) it "merely states the expert's conclusions about the standard of care, breach, and causation," or (2) it "omits any of the statutory requirements." Id.

7. The report "need not marshal all the plaintiff's proof." Id. at 878.

8. The information in the report need not meet the same requirements as evidence in a summary-judgment proceeding or at trial. Id. at 879.

9. A trial court's determination about the adequacy of a report is reviewed for abuse of discretion. Id. at 877.


Appellants first argue "waiver,"1 which is the intentional relinquishment of a

76 S.W.3d 756

known right.2 Tenneco Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 643 (Tex.1996); United States Fidelity & Guar. Co. v. Bimco Iron & Metal Corp., 464 S.W.2d 353, 357 (Tex.1971); Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855, 865 (1958); Cal-Tex Lumber Co. v. Owens Handle Co., 989 S.W.2d 802, 812 (Tex.App.-Tyler 1999, no pet.). The right allegedly waived may be one conferred by law or contract. Culbertson, 308 S.W.2d at 865; Zurich Gen. Accident & Liability Ins. Co. v. Fort Worth Laundry Co., 63 S.W.2d 236, 237 (Tex.Civ.App.-Fort Worth 1933, no writ). "Intention" to waive may be either expressly made or inferred from intentional conduct that is inconsistent with an intent to claim the right. Tenneco, 925 S.W.2d at 643; Culbertson, 308 S.W.2d at 865; Estate of Blardone v. McConnico, 604 S.W.2d 278, 283 (Tex.Civ.App.-Corpus Christi 1980, writ ref'd n.r.e.); Cal-Tex, 989 S.W.2d at 812; Ferrantello v. Paymaster Feed Mills, 336 S.W.2d 644, 647 (Tex.Civ. App.-Dallas 1960, writ ref'd n.r.e.). Almost every right may be waived. Borgen v. State, 672 S.W.2d 456, 460 (Tex.Crim. App.1984); Hipp v. Donald, 220 S.W.2d 268, 272 (Tex.Civ.App.-Fort Worth 1949, writ ref'd n.r.e.) ("Most procedural matters may be waived while strictly jurisdictional matters cannot.").

Jernigan responds that common law waiver does not apply here. He points out that the statute imposes no time limit in which the defendant must request that the court dismiss the lawsuit due to an inadequate expert report. We disagree. "Waiver" applies to rights conferred by statute. Culbertson, 308 S.W.2d at 865; Zurich Gen., 63 S.W.2d at 237. The issue is not whether Jernigan may waive his right to move the court for a dismissal, but whether he did waive that right.

Jernigan did not expressly waive his right to complain about the expert reports. The trial court also impliedly found that he did not exhibit intentional conduct inconsistent with his right to seek a dismissal. Tenneco, 925 S.W.2d at 643; Culbertson, 308 S.W.2d at 865. We will review this implied finding for abuse of discretion. Palacios, 46 S.W.3d at 877.

Waiver by inference only applies to prevent fraud and inequitable consequences. Cal-Tex, 989 S.W.2d at 812; McConnico, 604 S.W.2d at 283. There must be "clear, unequivocal, and decisive acts" showing an intent to waive. Shook v. Republic Nat. Bank of Dallas, 627 S.W.2d 741, 749 (Tex.App.-Tyler 1981), rev'd on other grounds, 653 S.W.2d 278 (Tex.1983); McConnico, 604 S.W.2d at 283; see Robinson v. Robinson, 961 S.W.2d 292, 300 (Tex. App.-Houston [1st Dist.] 1997, no writ) (proponent must "produce conclusive evidence"). Also, for waiver by inference to apply, there must be conduct that misleads the opposite party to his prejudice to believe that a waiver was intended. Texas Const. Associates v. Balli, 558 S.W.2d 513, 521 (Tex.Civ.App.-Corpus Christi...

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