Lewis v. Funderburk, 10-05-00197-CV.

• Decision Date: 05 April 2006
• Docket Number: No. 10-05-00197-CV.,10-05-00197-CV.
• Citation: 191 S.W.3d 756
• Parties: Rory LEWIS, M.D., Appellant v. Dewayne FUNDERBURK, as next Friend of Whitney Funderburk, Appellee.
• Court: Texas Court of Appeals

191 S.W.3d 756

Rory LEWIS, M.D., Appellant v. Dewayne FUNDERBURK, as next Friend of Whitney Funderburk, Appellee.

No. 10-05-00197-CV.

Court of Appeals of Texas, Waco.

April 5, 2006.

Rehearing Overruled May 9, 2006.

Andrew F. MacRae, Hull Hendricks & MacRae LLP, Austin, for Rory Lewis, M.D.

Amy Grubbs Thomas, The Law Offices of Amy Thomas, Mexia, for Dewayne Funderburk and Whitney Funderburk.

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

OPINION

FELIPE REYNA, Justice.

Dewayne Funderburk filed a medical malpractice suit against Rory Lewis alleging that Lewis improperly treated his daughter's fractured wrist. The court denied Lewis's motion to dismiss premised on Funderburk's failure to serve an expert report on Lewis within 120 days after the filing of suit. Lewis appeals the denial of the dismissal motion along with subsequent rulings of the court. Because Lewis's notice of appeal is untimely with regard to the dismissal issue and because this Court does not have jurisdiction to address the other issues presented, we will dismiss the appeal for want of jurisdiction.

Background

Funderburk filed suit on December 22, 2003. The 120-day statutory deadline for Funderburk to serve an expert report on Lewis was April 20, 2004. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a) (Vernon 2005). Lewis filed a motion to dismiss on June 28, 2004. Id. § 74.351(b) (Vernon 2005). The court heard the motion to dismiss on September 30, 2004. At the hearing, the court denied Lewis's motion to dismiss and granted Funderburk's motion for a 30-day extension. Id. § 74.351(c) (Vernon 2005). The court signed its order memorializing these rulings on October 29, 2004.

Funderburk served an expert report on Lewis on October 29. Lewis responded on November 12 with: (1) a "Second Motion to Dismiss" alleging that the expert preparing the October 29 report is not qualified and that his report is otherwise inadequate; (2) a "Motion for Reconsideration" of the prior ruling on Lewis's first dismissal motion; and (3) an "Objection to the Sufficiency of Plaintiff's Expert Report" contending that the expert preparing the October 29 report is not qualified and that his report is otherwise inadequate.

The court heard Lewis's motions on February 4, 2005 and took them under advisement. The court signed a written order on March 28, 2005 denying the motions. Lewis filed a notice of appeal on April 12, 2005.

Issues Presented

Lewis contends in six issues¹ that: (1) the court abused its discretion by granting Funderburk a thirty-day extension because no expert report had been served within the 120-day period mandated by section 74.351(a); (2) the court abused its discretion by granting a thirty-day extension because the "report" which Funderburk contends was his initial expert report² did not put Lewis on notice of the claims against him; (3) the court abused its discretion by permitting Funderburk to cure deficiencies in this initial expert report with an expert report prepared by a different physician; (4) the court abused its discretion by denying Lewis's second dismissal motion premised on the qualifications of Funderburk's expert; (5) the court abused its discretion by denying Lewis's second dismissal motion premised on the alleged inadequacies of Funderburk's expert report; and (6) the court abused its discretion by denying Lewis's request for attorney's fees.

Section 74.351

In 2003, the 78th Legislature rewrote the medical malpractice laws found in the Medical Liability and Insurance Improvement Act (former article 4590i) and recodified them under Chapter 74 of the Civil Practice and Remedies Code. See George C. Hanks, Jr. & Rachel Polinger-Hyman, Redefining the Battlefield: Expert Reports in Medical Malpractice Litigation After HB 4, 67 TEX. B.J. 936, 936 (2004). Section 74.351 governs the expert report(s) which the plaintiff in a medical malpractice case must serve on each physician or health care provider named as a defendant within 120 days after the suit is filed. See TEX.CIV.PRAC. & REM.CODE ANN. § 74.351 (Vernon 2005).

Section 74.351 has several provisions pertinent to this appeal, including the following:

(a) In a health care liability claim, a claimant shall, not later than the 120th day after the date the original petition 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.

(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 court, on the motion of the affected physician or health care provider, shall, subject to Subsection (c), 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.

(c) If an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency. If the claimant does not receive notice of the court's ruling granting the extension until after the 120-day deadline has passed, then the 30-day extension shall run from the date the plaintiff first received the notice.

....

(l) A court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6).

....

(r) In this section:

....

(6) "Expert report" means 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. § 74.351(a)-(c), (l), (r)(6).

Scope of Interlocutory Appeal

Section 51.014 of the Civil Practice and Remedies Code prescribes the rulings under section 74.351 which may be reviewed by interlocutory appeal. Section 51.014 provides in pertinent part that an interlocutory appeal may be brought from an order that:

• "denies all or part of the relief sought by a motion under Section 74.351(b), except that an appeal may not be taken from an order granting an extension under Section 74.351;" or • "grants relief sought by a motion under Section 74.351(l)."

TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(9), (10) (Vernon Supp.2005).

Thus, a defendant in a medical malpractice suit may bring an interlocutory appeal if the trial court denies a motion to dismiss and/or a request for attorney's fees under section 74.351(b). See, e.g., Mokkala v. Mead, 178 S.W.3d 66 (Tex. App.-Houston [14th Dist.] 2005, pet. filed); see also Acad. of Oriental Med., L.L.C. v. Andra, 173 S.W.3d 184, 187 (Tex.App.-Austin 2005, no pet.). Though it is not entirely clear where the line is to be drawn between the denial of a motion to dismiss under section 74.351(b) and the granting of an extension under section 74.351(c), the defendant is expressly prohibited from bringing an appeal from an order granting such an extension. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(9); Acad. of Oriental Med., 173 S.W.3d at 187-88 & n. 6.

Conversely, the plaintiff in a medical malpractice suit may bring an interlocutory appeal if the court grants a defendant's challenge to the adequacy³ of an expert report under section 74.351(l). See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(10); Acad. of Oriental Med., 173 S.W.3d at 188. However, the defendant has no right of interlocutory appeal under section 51.014(a)(10) if the court denies the defendant's challenge to the adequacy of an expert report under section 74.351(l). See Acad. of Oriental Med., 173 S.W.3d at 188-89; see also Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex.2001) ("section 51.014 [must] be strictly construed as `a narrow exception to the general rule that only final judgments and orders are appealable.'") (quoting Montgomery County v. Fuqua, 22 S.W.3d 662, 665 (Tex.App.-Beaumont 2000, pet. denied)).

Perfection of Interlocutory Appeal

Rules of Appellate Procedure 26.1(b) and 28.1 govern the perfection of an interlocutory appeal. An interlocutory appeal is an accelerated appeal. TEX.R.APP. P. 28.1.

[I]n an accelerated appeal, absent a rule 26.3 motion,⁴ the deadline for filing a notice of appeal is strictly set at twenty days after the judgment is signed, with no exceptions, and filing a rule 26.1(a) motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusions of law will not extend that deadline.

In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005) (footnote added); see also TEX.R.APP. P. 26.1(b), 28.1.

Application

The trial court signed its order denying Lewis's first motion to dismiss on October 29, 2004. Thus, Lewis's notice of appeal seeking review of this order was due within twenty days, on or before November 18. See TEX.R.APP. P. 26.1(b); K.A.F., 160 S.W.3d at 927. However, Lewis did not file his notice of appeal until April 12, 2005. His "Motion for Reconsideration" did not alter the deadline for filing the notice of appeal. See K.A.F., 160 S.W.3d at 927...