Lee v. Mitchell

• Decision Date: 10 July 2000
• Docket Number: No. 05-98-00382-CV,05-98-00382-CV
• Citation: 23 S.W.3d 209
• Parties: (Tex.App.-Dallas 2000) WINNELL LEE AND VERNON M. LEE, Appellants v. CHARLES D. MITCHELL, Appellee
• Court: Texas Court of Appeals

Page 209

23 S.W.3d 209 (Tex.App.-Dallas 2000)

WINNELL LEE AND VERNON M. LEE, Appellants v. CHARLES D. MITCHELL, Appellee

No. 05-98-00382-CV

In The Court of Appeals Fifth District of Texas at Dallas

July 10, 2000

On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. 97-02426-A

Before Justices Whittington, FitzGerald, and Rosenberg ¹

OPINION

Opinion By Justice Rosenberg.

Winnell Lee and Vernon M. Lee (the Lees) appeal the trial court's dismissal of their medical malpractice claim against Charles D. Mitchell, M.D., challenging the trial court's holding that the physician's expert report required by section 13.01(d) of the Medical Liability and Insurance Improvement Act (the Act) must be signed by a physician licensed to practice medicine in Texas. See Tex. Rev. Civ. Stat. Ann. art. 4590i, §13.01(d) (Vernon Supp. 2000). In seven issues, the Lees complain that the Act does not impose a requirement that a physician making an expert report be licensed in Texas; if it is a requirement, their expert report was a good faith effort to comply with the Act, making the report adequate under section 13.01(l); and, the imposition of the requirement violates rights guaranteed by the United States and Texas Constitutions and conflicts with the Texas Rules of Evidence. Because the Act does not impose a licensing restriction on the physician expert, the Lees' expert report met the requirements of the Act. We reverse and remand.

BACKGROUND

On March 18, 1997, the Lees filed suit against Mitchell for medical malpractice. The petition alleged that Mitchell failed to properly diagnose Winnell Lee's shoulder condition. In July 1997, within 180 days of filing the petition, the Lees filed their expert report pursuant to section 13.01(d). The report was prepared by Alexander N. Doman, M.D., a physician licensed in California and Georgia. On August 19, 1997, the Lees supplemented their expert report to include Doman's curriculum vitae, which was mistakenly omitted.

On November 6, 1997, Mitchell filed a motion to dismiss, asserting the expert report was inadequate because Doman was not licensed to practice medicine in Texas. The trial court granted the motion to dismiss. The Lees filed a motion for new trial and a motion to reinstate. The trial court denied the requests. This appeal followed.

REQUIREMENTS OF THE REPORT

In their first three issues, the Lees assert the trial court erred in dismissing their lawsuit because the trial court did not properly construe and apply the Act's requirements. Specifically, they argue that the Act should not be construed to require a physician be licensed in Texas to provide an expert report against physicians. The Lees argue that this interpretation of the Act is contrary to the legislative intent and the purpose of the Act. Mitchell responds that the legislative intent is irrelevant and that the plain reading of the Act can lead only to the conclusion that a physician licensed in Texas is required for the expert report. Further, Mitchell contends that without a proper expert, the report is not an expert report. Under the Act, an expert report is "a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report . . . ." Id. § 13.01(r)(6). ² An expert is qualified to give an expert report and be an expert witness in a suit against a physician:

only if the person is a physician who:

(1) is practicing medicine at the time such testimony is given or was practicing medicine at the time the claim arose;

(2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and

(3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care.

Id. § 14.01(a). Section 14.01 also provides for exceptions to these requirements. See id. § 14.01(d). Section 14.01 does not define "physician." However, the original Act, enacted in 1977, included a definition in section 1.03(a)(8) that remains in the Act, stating, "'Physician' means a person licensed to practice medicine in this state." Id. § 1.03(a)(8).

The parties dispute the applicability of the definition of "physician" in section 1.03 to a physician giving an expert report in section 13.01. The Lees argue that the original 1977 bill containing the definition applied only to the regulation of Texas physicians, not to expert witnesses and reports. The expert witness and report sections of the statute were not added until 1989 and 1993, respectively, and were amended in 1995. Mitchell responds that it is presumed when the legislature amended the original Act to add the requirements of an expert report and witness, the legislature knew "physician" was defined in the original section and intended that the term as used in the new section be construed in accordance with that definition.

Statutory Construction

The requirements for an expert report depend on a proper construction of the Act. Matters of statutory construction are questions of law for the court to decide rather than issues of fact. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989) (per curiam); Maley v. 7111 Southwest Freeway, Inc., 843 S.W.2d 229, 232 (Tex. App.-Houston [14th Dist.] 1992, writ denied). We review questions of law de novo. See State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996) (op. on reh'g). Well-settled rules of statutory construction dictate that we must give effect to the intent of the legislature. See Tex. Gov't Code Ann. § 312.005 (Vernon 1998); Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex. 1993). A statute "shall be liberally construed to achieve [its] purpose and promote justice." Tex. Gov't Code Ann. § 312.006 (Vernon 1998). If the statutory language is unambiguous, we determine the legislative intent from the plain and common meaning of the words of the statute. See Monsanto Co

., 865 S.W.2d at 939; Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 352 (Tex. 1990); RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex. 1985). However, where the application of the statute's plain language would lead to absurd consequences that the legislative body could not possibly have intended, we do not apply the statutory language literally. See Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 249 (Tex. 1991) (citing McKinney v. Blankenship, 154 Tex. 632, 642, 282 S.W.2d 691, 698 (1955)).

We may also look to the Code Construction Act to provide guidance in construing a statute. See Tex. Gov't Code Ann. §§ 311.001-.003 (Vernon 1998); Thiel v. Harris County Democratic Executive Comm., 534 S.W.2d 891, 894 (Tex. 1976) (orig. proceeding). The Code Construction Act provides that, when the legislature enacts a statute, it is presumed:

(1) compliance with the constitutions of this state and the United States is intended;

(2) the entire statute is intended to be effective;

(3) a just and reasonable result is intended;

(4) a result feasible of execution is intended; and

(5) public interest is favored over any private interest.

Tex. Gov't Code Ann. § 311.021 (Vernon 1998). The Code Construction Act further provides that when construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the:

(1) object sought to be attained;

(2) circumstances under which the statute was enacted;

(3) legislative history;

(4) common law or former statutory provisions, including laws on the same or similar subjects;

(5) consequences of a particular construction; . . . . Id. § 311.023 (Vernon 1998). Thus, while not controlling or binding, we consider legislative history to determine legislative intent. See Calvert v. Audio Ctr., Inc., 346 S.W.2d 420, 423 (Tex. Civ. App.-Austin 1961, writ ref'd n.r.e.). Legislative history includes the enactment history of a statute, that is, actions taken and statements made during legislative consideration. See, e.g., Quick v. City of Austin, 7 S.W.3d 109, 123 (Tex. 1998) (considering floor debates, committee hearings, and bill analyses as legislative history); see also 2A Norman J. Singer, Sutherland Statutory Construction § 48.04, at 431-36 (6th ed. 2000).

Discussion

The Act originated as House Bill 1048 in the 65th Legislature, which convened in 1977. See Act of May 30, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039-64 (codified at Tex. Rev. Civ. Stat. Ann. art. 4590i, §§ 1-12.01 (Vernon Supp. 2000)). "Physician" was defined in section 1.03. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 1.03(a)(8) (Vernon Supp. 2000). As stated in the bill analysis, the purpose of the bill was to reduce physicians' insurance rates. See House Comm. on State Affairs, Bill Analysis, Tex. H.B. 1048, 65th Leg., R.S. (1977). The Act provided protection to physicians by pre-suit notice, restrictions on the application of the common-law doctrine of res ipsa loquitur and the statute of limitations, and implementation of damage caps. See Tex. Rev. Civ. Stat. Ann. art. 4590i, §§ 4.01, 7.01, 10.01, 11.02 (Vernon Supp. 2000).

In 1995, section 13.01 was amended to require the filing of an expert report, and section 14.01 was amended regarding the qualification of a physician as an expert witness in physician malpractice suits. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, §§ 1-2, 1995 Tex. Gen. Laws 985-88 (codified at Tex. Rev. Civ. Stat. Ann. art. 4590i, §§ 13.01, 14.01 (Vernon Supp. 2000)).³ Those amendments originated in House Bill 971, which, as introduced, required the expert physician to hold "a license to practice in this state at the time the claim arose." Tex. H.B. 971, 74th Leg., R.S., § 5 (1995). However, the bill enacted into law did not have the Texas licensure restriction. See Tex. H.B. 971, 74th Leg., R.S., 1995 Tex. Gen. Laws 985-88. Thus, during the legislative process, the Texas licensure requirement was eliminated...