Matthews v. Lenoir

• Decision Date: 22 July 2014
• Docket Number: No. 01–13–01082–CV.,01–13–01082–CV.
• Citation: 439 S.W.3d 489
• Parties: Angela MATTHEWS, Appellant v. Shirley LENOIR, Individually and as Personal Representative of the Estate of Shana Lenoir and Christopher McKnight, Individually and as Next Friend of Nayla McKnight, Appellees.
• Court: Texas Court of Appeals

439 S.W.3d 489

Angela MATTHEWS, Appellant

v.Shirley LENOIR, Individually and as Personal Representative of the Estate of Shana Lenoir and Christopher McKnight, Individually and as Next Friend of Nayla McKnight, Appellees.

No. 01–13–01082–CV.

Court of Appeals of Texas, Houston (1st Dist.).

July 22, 2014.

David R. Iler, Warren S. Huang, Jaqqualine P. McMilan, Fulbright & Jaworski LLP, Houston, TX, for Appellant.

Joseph M. Gourrier, The Gourrier Law Firm, LLP, Houston, TX, for Appellees.

Panel consists of Chief Justice RADACK and Justices HIGLEY and BROWN.

OPINION

HARVEY BROWN, Justice.

In this interlocutory appeal,¹ Angela Matthews appeals the trial court's order denying her motion to dismiss a wrongful death health care liability claim arising out of her alleged negligence in providing nursing care to Shana Lenoir and her two unborn children. Matthews was employed as a nurse by U.T. Physicians. The trial court held that Shirley Lenoir, Individually and as Personal Representative of the Estate of Shana Lenoir, and Christopher McKnight, Individually and as Next Friend of Nayla McKnight (collectively, the Lenoirs) had timely served an expert report on Matthews as required for a health care liability claim.²

Matthews contends that the trial court abused its discretion in denying her motion to dismiss because she was not served an expert report until after the 120–day deadline to serve the reports had passed. We reverse the trial court's order denying Matthews's motion to dismiss, render judgment in Matthews's favor, and remand for proceedings consistent with this opinion.

Background

In April 2010, Shana Lenoir visited U.T. Physicians for medical treatment related to her pregnancy. Dr. Leah Ann Gonski reviewed Shana's medical history, noting that she had a prior preterm delivery

of twins and that only one baby had survived. Gonski also conducted a brief physical exam, noting that Shana was approximately 35 weeks into her second pregnancy with twins. Based on a prior note in Shana's medical record stating that “Progesterone weekly started,” Gonksi wrote “Progesterone shot IM weekly” and signed her name in Shana's medical record. Matthews, a licensed vocational nurse, then administered a progesterone injection to Shana.

Early the next day, Shana had difficulty breathing. The EMS responded to an emergency phone call at Shana's home and found Shana collapsed and unresponsive. The EMS rushed Shana to the emergency room but she and her unborn twins were pronounced dead on arrival.

The Lenoirs brought this health care liability suit on June 20, 2012, claiming that Dr. Gonski, a medical resident employed by U.T. Physicians, was negligent in providing unlawful, unsupervised medical treatment to Shana and that Gonski had also unlawfully delegated Shana's treatment to Matthews. The Lenoirs also claimed that Matthews had been “practicing medicine without a license by administering the progesterone

injection” and that the drug she injected was not an FDA-approved drug. Further, the Lenoirs alleged that Shana's medical bills incorrectly stated that Dr. Jaou–Chen Huang, another physician at the clinic, had delivered Shana's medical treatment.

The Lenoirs served process on U.T. Physicians and both doctors. All three filed their original answers in July 2012. The state attorney general responded on behalf of U.T. Physicians, alleging that it was a governmental unit and, therefore, entitled to immunity. The attorney general's response stated that it answered only for U.T. Physicians—not any other defendants.

In September 2012, the Lenoirs served Texas Medical Liability Act (TMLA) chapter 74 expert reports on the attorney general, addressed to “U.T. Physicians f/k/a University Care Plus” and separately to the counsel of record for “Leah Ann Gonski Marino f/k/a Leah Ann Gonski and Jaou–Chen Huang, M.D.” Neither expert report was addressed to Matthews. On October 18, 2012, the 120–day deadline for the Lenoirs to timely file a chapter 74 expert report expired.

On October 25, 2012, after the 120–day expert report deadline had passed, the Lenoirs served process on Matthews. On November 15, 2012, the attorney general filed an original answer on her behalf. On January 3, 2013, almost three months after the 120–day deadline had passed, the Lenoirs served an expert report on Matthews.

Over 350 days after being served with process, Matthews simultaneously moved for summary judgment and to dismiss the suit, claiming that the Lenoirs failed to serve a timely chapter 74 expert report. The Lenoirs responded, arguing that they had timely served an expert report on Matthews's attorney, the attorney general, in September 2012. According to the Lenoirs, upon receiving notice of the suit pending against Matthews's employer, U.T. Physicians, the attorney general had become Matthews's mandatory counsel of record and that they had timely served an expert report on her. The trial court denied Matthews's motions for summary judgment and for dismissal.³

Matthews filed a timely notice of appeal from the trial court's interlocutory order denying the motion to dismiss. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(10) (West Supp.2013).

Standard of Review

We review a trial court's ruling on a motion to dismiss a health care liability lawsuit pursuant to chapter 74 of the TMLA for an abuse of discretion. See Act effective Sept. 1, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590 (amended 2013) (current version at Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (West Supp.2013)); see also Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001) (reviewing dismissal under section 74 predecessor statute for abuse of discretion); Runcie v. Foley, 274 S.W.3d 232, 233 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (same). We defer to a trial court's factual findings if they are supported by evidence, but when there is no factual dispute, only the legal question of whether the plaintiff timely served reports remains. We review questions of law de novo. Univ. of Tex. Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 871 (Tex.App.-Houston [1st Dist.] 2007, pet. denied).

Likewise, we review de novo questions of statutory interpretation. Heriberto Sedeno, P.A. v. Mijares, 333 S.W.3d 815, 818 (Tex.App.-Houston [1st Dist.] 2010, no pet.). When construing a statute, the reviewing court's overriding goal is to determine the Legislature's intent in enacting the statute. McIntyre v. Ramirez, 109 S.W.3d 741, 748 (Tex.2003) ; City of Houston v. Hildebrandt, 265 S.W.3d 22, 25 (Tex.App.-Houston [1st Dist.] 2008, pet. denied). The Texas Supreme Court has repeatedly held that when courts construe statutes, they should start with the text because it is the best indicator of the Legislature's intent. See Fresh Coat, Inc. v. K–2, Inc., 318 S.W.3d 893, 901 (Tex.2010). “When the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’ ” Conn. Nat'l Bank v. Germain, 503 U.S. 249, 254, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) (citation omitted). When possible, reviewing courts should interpret a statute solely by reference to its language. Fresh Coat, 318 S.W.3d at 901. Courts, however, are not confined to isolated statutory words or phrases; they should consider the entire act to determine legislative intent. Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex.2001) ; Hildebrandt, 265 S.W.3d at 25.

Motion to Dismiss

Matthews contends that the Lenoirs failed to serve a timely expert report on her as required by chapter 74 of the TMLA. Specifically, she contends that timely service of an expert report on her employer, U.T. Physicians, did not satisfy the statutory requirement to serve an expert report on her. The Lenoirs respond that the attorney general became Matthews's counsel of record when it received notice of the initial petition and that they served an expert report on the attorney general before the 120–day deadline had passed. The Lenoirs also argue that Matthews waived any argument regarding the timeliness of the expert report by failing to object to the sufficiency of the report within 21 days of being served the report. Further, the Lenoirs contend that dismissal of their claims would violate their rights under the due process and open courts provisions of the Texas constitution because the 120–day deadline expired before Matthews was served.

A. Waiver

As a preliminary matter, we first address the Lenoirs' contention that Matthews has raised issues “for the first time on appeal which [were] not presented to the trial court” because Matthews failed to file a reply to their response to Matthews's motion to dismiss. Specifically, the Lenoirs contend that Matthews did not make the following assertions in the trial court that they are making on appeal: (1) the Lenoirs conceded that Matthews was first served with an expert report on January 3, 2013, (2) there is no evidence Matthews requested the attorney general to represent her, (3) the attorney general does not automatically become a public servant's attorney, (4) the September expert report served on the attorney general did not constitute timely service of an expert report on Matthews, and (5) that “the Lenoirs' evidence of due diligence does not arise to the level required for an Open Courts challenge.”

The Lenoirs cite Texas Rule of Appellate Procedure 33.1, along with Marine Transportation Corp. v. Methodist Hospital, 221 S.W.3d 138, 147 n. 3 (Tex.App.-Houston [1st Dist.] 2006, no pet.) and Salazar v. Coastal Corp., 928 S.W.2d 162, 167 (Tex.App.-Houston [14th Dist.] 1996, no writ), to support their contention that Matthews was required to submit a written reply to the Lenoirs' response to Matthews's motion to dismiss. In both Marine Transportation and Salazar, the appellate courts applied the general principle that failure to preserve a complaint in the trial court precludes a party from raising that issue for the first time on appeal....