Nagakrishna Reddy, M.D., & New Braunfels Ob/Gyn, P.A. v. Hebner

• Decision Date: 19 June 2014
• Docket Number: No. 03–12–00675–CV.,03–12–00675–CV.
• Parties: Nagakrishna REDDY, M.D., and New Braunfels Ob/Gyn, P.A., Appellants v. Haley HEBNER and Darrin Charles Scott, Individually and as Next Friend s of R.M.S., a Minor, Appellees.
• Court: Texas Court of Appeals

435 S.W.3d 323

Nagakrishna REDDY, M.D., and New Braunfels Ob/Gyn, P.A., Appellants

v.Haley HEBNER and Darrin Charles Scott, Individually and as Next Friend s of R.M.S., a Minor, Appellees.

No. 03–12–00675–CV.

Court of Appeals of Texas, Austin.

May 2, 2014.

Rehearing Overruled June 19, 2014.

Kyle M. Burke, R. Brent Cooper, Diana L. Faust, Cooper & Scully, PC, Dallas, TX, Rosemary L. Hollan, San Antonio, TX, for Appellants.

Eugene W. Brees, II, Michelle M. Cheng, William O. Whitehurst, Whitehurst Harkness, Brees & Cheng, P.C., Daniel J. Christensen, Austin, TX, Craig W. Carlson, The Carlson Law Firm, Killeen, TX, for Appellees.

Before Justices PURYEAR, PEMBERTON, and ROSE.

OPINION

DAVID PURYEAR, Justice.

Haley Hebner and Darrin Scott sued Nagakrishna Reddy, M.D., and others alleging that the treatment that Hebner received resulted in the death of her infant daughter, R.M.S. In addition, Hebner and Scott also brought vicarious liability claims against the medical association that Dr. Reddy belonged to, New Braunfels Ob/Gyn, P.A. (the Association). A few months after Hebner and Scott filed their suit, Dr. Reddy and the Association filed a motion to dismiss asserting that Hebner and Scott had failed to timely serve an expert report as required by chapter 74 of the Civil Practice and Remedies Code. SeeTex. Civ. Prac. & Rem.Code § 74.351. After convening a hearing, the district court denied the motion. Dr. Reddy and the Association appeal the denial of their motion, and we will reverse the order of the district court and remand the case.

STATUTORY FRAMEWORK

As mentioned above, this case involves a health-care-liability claim. For health-care claims, section 74.351 of the Civil Practice and Remedies Code sets out some procedural requirements that must be complied with early on or else the claim is subject to dismissal. SeeTex. Civ. Prac. & Rem.Code § 74.351. Specifically, the provision in effect for purposes of this appeal requires that a claimant, “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.” Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, sec. 74.351(a), 2003 Tex. Gen. Laws 847, 875, amended by Act of June 17, 2005, 79th Leg., R.S., ch. 635, § 1, sec. 74.351(a), 2005 Tex. Gen. Laws 1590, 1590 (former § 74.351(a)) (current version at Tex. Civ. Prac. & Rem.Code § 74.351(a)).¹ Further, the Code defines “expert report” as “a written report by an expert that provides a fair summary of the expert's opinions ... 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.” Tex. Civ. Prac. & Rem.Code § 74.351(r)(6).

Moreover, the Code explains that if an expert report has not been “served” within the 120–day deadline, the trial court must dismiss “the claim with respect to the physician or health-care provider, with prejudice to the refiling of the claim,” provided that the “affected physician or health care provider” files a motion to dismiss. Id. § 74.351(b); see Badiga v. Lopez, 274 S.W.3d 681, 685 (Tex.2009) (explaining that there are only two circumstances in which trial court may grant extension to 120–day deadline). The legislature imposed this strict deadline in order to help “reduce excessive frequency and severity of health care liability claims through reasonable improvements and modifications in the Texas insurance, tort, and medical practice systems.” Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.11(b)(1), 2003 Tex. Gen. Laws 847, 884. By imposing this requirement, the legislature created “a statute of limitations type deadline within which expertreports must be served.” Ogletree v. Matthews, 262 S.W.3d 316, 319 (Tex.2007). In other words, if the report is not served by the deadline, trial courts may not grant extensions and have no discretion to deny a motion to dismiss filed by a health-care provider. Id. at 319–20. If the report is not timely served, the health-care provider is also entitled to an award of “attorney's fees and costs of court incurred.” Tex. Civ. Prac. & Rem.Code § 74.351(b)(1). If a health-care provider files a motion to dismiss because a report was not timely filed and if the trial court denies the motion, the health-care provider may file an interlocutory appeal challenging the denial of the motion to dismiss. Id. § 51.014(a)(9) (authorizing appeal “from an interlocutory order” that “denies all or part of the relief sought by a motion under Section 74.351(b)”); see Rosemond v. Al–Lahiq, 331 S.W.3d 764, 767 n. 3 (Tex.2011) (per curiam); see also Colquitt v. Brazoria Cnty., 324 S.W.3d 539, 542 (Tex.2010) (per curiam) (explaining that interlocutory orders are generally not appealable).

In addition to describing what happens when a report is not timely filed, the Code also explains what happens if a report is timely served but is insufficient. Tex. Civ. Prac. & Rem.Code § 74.351(c). Specifically, the provision of the Code in effect for purposes of this appeal states that a defendant health-care provider may object to the sufficiency of the report, but the objections must be filed within 21 days of the report being served. Former § 74.351(a) (waiving all objections to sufficiency of report if objections are not timely filed).² When a health-care provider files a motion challenging the adequacy of the report, the court may only grant the motion “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.” Tex. Civ. Prac. & Rem.Code § 74.351( l ). Further, the Code explains that if the report is found to be deficient, the trial court “may grant one 30–day extension to the claimant in order to cure the deficiency.” Id. § 74.351(c); see Diaz–Rohena v. Melton, 253 S.W.3d 218, 218–19 (Tex.2008) (per curiam) (explaining that health-care provider may file interlocutory appeal of denial of motion to dismiss on grounds that report was deficient and, therefore, untimely).

DISCUSSION

On appeal, Dr. Reddy and the Association contend that the district court erred by denying their motion to dismiss because Hebner and Scott failed to timely serve expert reports. As a preliminary matter, we note that because Hebner and Scott only presented claims for vicarious liability against the Association, they were not required to serve an expert report regarding the Association provided that they filed a timely and sufficient report regarding Dr. Reddy. See Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671–72 (Tex.2008) (per curiam). Accordingly, in this appeal, we only consider whether a timely report was filed regarding Dr. Reddy.

Appellate courts review a ruling on a motion to dismiss under subsection 74.351 for an abuse of discretion. TTHR Ltd. P'ship v. Moreno, 401 S.W.3d 41, 44 (Tex.2013). Under this standard, a trial court abuses its discretion if it acts without reference to any guiding rules or principles or acts in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985). In addition, under this standard, appellate courts review legal determinations de novo. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex.2009) (orig. proceeding). Determinations regarding the meaning of section 74.351 are legal questions and are, therefore, reviewed de novo. See Stockton v. Offenbach, 336 S.W.3d 610, 615 (Tex.2011). When reviewing whether an expert report complies with the statutory requirements, appellate courts may only consider “the four corners of the expert report” itself. Apodaca v. Russo, 228 S.W.3d 252, 257 (Tex.App.-Austin 2007, no pet.).

Along with their petition, Hebner and Scott also served Dr. Reddy and the Association with an expert report from Barry Schifrin, M.D., and from Michelle Murray, Ph.D., RNC. In his report, Dr. Schifrin did not mention Dr. Reddy or the Association, did not discuss any standard of care pertaining to Dr. Reddy, and did not discuss any causal connection between the treatment offered by Dr. Reddy and any injury sustained by Hebner or R.M.S. In fact, the report does not mention Hebner or R.M.S. at all; instead, the report discussed the treatment of another patient by a doctor who is not part of this appeal. Although Murray's report did pertain to the treatment of Hebner, the report focused on how the nurses charged with Hebner's care failed to comply with the relevant standard of care for nurses. The report briefly mentions Dr. Reddy but only in the context of showing how the nurses did not comply with the standard of care.³ The report does not discuss the Association.

To be effective, an expert report must inform the defendant about the conduct complained of and must provide a basis from which the trial court can determine whether the claims have merit. American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex.2001). The report “must address all the” statutory elements, “and omissions may not be supplied by inference.” Scoresby v. Santillan, 346 S.W.3d 546, 556 (Tex.2011). In fact, the supreme court has warned that in certain circumstances, an expert report may be so deficient as to constitute no report at all. Id. at 556. Accordingly, the supreme court set out a “minimal standard” under which a claimant who timely files a deficient report may be entitled to a 30–day extension to cure the deficiencies rather than have his suit dismissed for failing to file a timely expert report. Id. at 557. Under this standard, a 30–day extension may be granted “if the report is served by the statutory deadline, if it contains the opinion of an individual with...