Manor Care Health Services, Inc. v. Ragan

• Decision Date: 12 January 2006
• Docket Number: No. 14-05-00658-CV.,14-05-00658-CV.
• Court: Texas Court of Appeals
• Parties: MANOR CARE HEALTH SERVICES, INC., Four Seasons Nursing Centers, Inc. d/b/a Manor Care Health Care, Statex Corporation d/b/a Manor Care Health Services, HCR Manorcare Mesquite, L.P., and Healthcare & Retirement Corporation of America, Appellants, v. Jerome RAGAN, Individually and on behalf of the Estate of Paulette Ragan, Deceased, Appellee.

187 S.W.3d 556

MANOR CARE HEALTH SERVICES, INC., Four Seasons Nursing Centers, Inc. d/b/a Manor Care Health Care, Statex Corporation d/b/a Manor Care Health Services, HCR Manorcare Mesquite, L.P., and Healthcare & Retirement Corporation of America, Appellants, v. Jerome RAGAN, Individually and on behalf of the Estate of Paulette Ragan, Deceased, Appellee.

No. 14-05-00658-CV.

Court of Appeals of Texas, Houston (14th Dist.).

January 12, 2006.

Rehearing Overruled March 23, 2006.

John F. Kapacinskas and Michael Elton Pierce, Houston, for appellants.

Joseph Todd Trombley, Houston, Chad Bassett Matthews, League City, for appellees.

Panel consists of Chief Justice HEDGES and Justices YATES and ANDERSON.

OPINION

ADELE HEDGES, Chief Justice.

Appellants, Manor Care Health Services, Inc.; Four Seasons Nursing Centers, Inc. d/b/a Manor Care Health Care; Statex Corporation d/b/a Manor Care Health Services; HCR Manorcare Mesquite, L.P.; and Healthcare & Retirement Corporation of America, file this interlocutory appeal from the trial court's denial of their motion to dismiss a health care liability claim. See TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(9) (Vernon Supp.2005) (authorizing interlocutory appeals). Appellee, Jerome Ragan, sued appellants in his individual capacity and on behalf of the estate of Paulette Ragan, deceased. In their motion to dismiss, appellants attacked the sufficiency of medical expert reports filed by appellee. On appeal, appellants contend that in making its determination on the motion, the trial court should have considered only the first expert report filed by appellee and not the second report. Appellants further contend that regardless of whether only the first report is considered or both reports are considered, the reports are deficient, and therefore, the trial court erred in refusing to dismiss the claims. We affirm.

Background

This is a tale of two lawsuits filed by two different plaintiffs in two different courts. It is also a tale of medical expert reports alleged to be deficient, although timely filed, not one of two plaintiffs' failures to timely file expert reports at all.

On October 22, 2003, John Ragan, the brother of decedent Paulette Ragan, filed a lawsuit ostensibly on behalf of her estate in the 280th District Court in Harris County. Paulette died on November 11, 2002, allegedly from a pulmonary embolus while in the care of appellants, after having a lipoma surgically removed from her thigh. In his lawsuit, John Ragan asserted that appellants' deviation from the applicable standard of care proximately caused Paulette's death. Counsel for John Ragan filed a medical expert report prepared by Dr. Louis Silverman and dated October 28, 2003. Subsequently, appellants filed a motion to dismiss, claiming that Silverman's report was deficient under section 4590i of the Texas Medical Liability and Insurance Improvement Act (MLIIA).¹ John Ragan then moved to nonsuit the case. On June 8, 2004, the trial court dismissed the case pursuant to the nonsuit, without prejudice against refiling and without addressing the motion to dismiss.

On October 28, 2004, Jerome Ragan, Paulette's father, filed the current lawsuit in the 152nd District Court in his individual capacity (under the Wrongful Death Statute²) and on behalf of Paulette's estate (under the Survivor Statute³).⁴ Jerome's counsel filed the same expert report by Silverman that had been filed in the John Ragan lawsuit. Counsel also filed a second, slightly more detailed report by Silverman. As discussed more fully below, in his reports, Silverman criticized nurses employed by appellants for their alleged failure to continue administering anticoagulant medication to Paulette as a doctor had prescribed. Silverman stated that had the anticoagulant medication been continued, Paulette would probably not have suffered the pulmonary embolus that resulted in her death. Appellants filed a motion to dismiss, arguing: (1) the John Ragan lawsuit was improperly nonsuited and thus the court in the Jerome Ragan lawsuit should only consider the first Silverman medical report, which had been filed in the prior lawsuit; (2) the Jerome Ragan lawsuit should be dismissed because the first Silverman report was deficient; and (3) even if the trial court considered the second Silverman report, it too was deficient and the Jerome Ragan lawsuit should be dismissed. On appeal, appellants' arguments track those made in the motion to dismiss.

How Many Reports to Consider?

We must first decide whether it was appropriate for the trial court to consider both Silverman reports or just the one that was filed in the first lawsuit. Appellants contend that the trial court should have considered only the first report because John Ragan impermissibly nonsuited the first lawsuit. Under Rule 162 of the Texas Rules of Civil Procedure, although a plaintiff may generally take a nonsuit at any time, any dismissal of the plaintiff's claims pursuant to the nonsuit will have no effect on any pending motion for sanctions. TEX.R. CIV. P. 162. Because in health care liability lawsuits, a claimant's failure to timely file a sufficient expert report may lead to dismissal of his or her claims with prejudice against refiling, courts have held that a claimant may not take a nonsuit under Rule 162 in such cases while a motion to dismiss is pending. See, e.g., Hagedorn v. Tisdale, 73 S.W.3d 341, 345-47 (Tex.App.-Amarillo 2002, no pet.); Puls v. Columbia Hosp. at Med. City Dallas Subsidiary, L.P., 92 S.W.3d 613, 618 (Tex. App.-Dallas 2002, pet. denied).

Appellants contend, therefore, that the order of the 280th District Court recognizing the nonsuit of John Ragan's claims is interlocutory until the motion to dismiss filed with that court is resolved. Appellants further argue that because the John Ragan lawsuit in the 280th District Court is unresolved, the only expert report that the 152nd District Court could properly consider in the Jerome Ragan lawsuit was the report timely filed in the earlier lawsuit. We disagree.

As primary support for this argument, appellants cite an unpublished opinion of the Austin Court of Appeals and assert that because it "contains a procedural history nearly identical to that of the present case," it is persuasive in the case before us. Wilson v. Austin Nursing Ctr., No. 03-00-00800-CV, 2002 WL 31118311 (Tex. App.-Austin Sept. 26, 2002, pet. denied). A review of the Wilson case, however reveals that it is procedurally distinguishable from the present case. Wilson addressed two medical liability lawsuits filed at different times, involving the same injured party and the same defendant. 2002 WL 31118311, at *1. And, indeed, the first lawsuit was nonsuited after the defendant filed a motion to dismiss for failure to file an expert report. Id. There, the similarity to our case ends. In contrast to the case before us, the two lawsuits in Wilson were filed in the same district court by the same plaintiff. Id. The trial court determined that when the second suit was filed, the court still had plenary power in the first lawsuit because the nonsuit in the first suit was improper. Id. at *2. It then granted the motion to dismiss with prejudice in the first action; however, the court did not grant the motion to dismiss in the second action because it found that the two lawsuits did not involve the same conduct or injuries. Id. The Austin Court of Appeals affirmed. Id. at *7. In the case before us, the two lawsuits were filed in different district courts by different plaintiffs, and the court in which the second lawsuit was filed took no action in relation to the prior lawsuit. These procedural distinctions are sufficient to dissuade us from considering Wilson as controlling.

Appellants additionally cite Martinez v. Lakshmikanth for the proposition that a trial court has no discretion to dismiss a healthcare liability claim without prejudice when a claimant fails to timely file an expert report and the defendant moves to dismiss with prejudice. 1 S.W.3d 144 (Tex.App.-Corpus Christi 1999, pet. denied). However, unlike the claimant in Martinez, John Ragan timely filed an expert report. Thus, before the 280th District Court could have dismissed the prior lawsuit with prejudice, it would have to have considered the sufficiency of that report, and John Ragan could have requested a 30-day grace period in which to file an amended report. See Act of May 18, 1995, 74th Leg., R.S., ch. 141, § 1, 1995 Tex. Gen. Laws 985, 986-87 (former art. 4590i, §§ 13.01(g) and (l)).⁵ Consequently, even assuming that Jerome Ragan and the 152nd District Court could somehow be bound by actions taken by John Ragan in the 280th District Court (which has not been shown by appellees), the 152nd still could have permitted Jerome Ragan to file an amended report. Martinez is therefore distinguishable and does not govern the present lawsuit.⁶

In conclusion, the present appeal is from the 152nd District Court in the Jerome Ragan lawsuit; it is emanating from neither the 280th District Court nor the John Ragan lawsuit. Appellants have offered no factual or legal basis to show why the 152nd court would be restricted to considering only the report filed by a different claimant in a different district court.⁷ Accordingly, we will review both reports timely filed in the current lawsuit in determining whether the claimant met the statutory requirements.⁸

Sufficiency of the Reports

We review a trial court's decision on a motion to dismiss a case under section 74.351 of the Civil Practice and Remedies Code for an abuse of discretion. Group v. Vicento, 164 S.W.3d 724, 727 (Tex.App.-Houston [14th Dist.] 2005, pet. filed) (citing Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001)).⁹ Under section 74.351(l), a trial court should grant a motion challenging the adequacy of an expert report if the report does not represent an objective good faith effort to comply with...