Odak v. Arlington Memorial Hosp. Foundation

• Decision Date: 14 November 1996
• Docket Number: No. 2-96-067-CV,2-96-067-CV
• Citation: 934 S.W.2d 868
• Parties: Pamela ODAK, Appellant, v. ARLINGTON MEMORIAL HOSPITAL FOUNDATION d/b/a Arlington Memorial Hospital, Appellee.
• Court: Texas Court of Appeals

Page 868

934 S.W.2d 868

Pamela ODAK, Appellant, v. ARLINGTON MEMORIAL HOSPITAL FOUNDATION d/b/a Arlington Memorial Hospital, Appellee.

No. 2-96-067-CV.

Court of Appeals of Texas Fort Worth.

Nov. 14, 1996.

Rehearing Overruled Dec. 19, 1996.

Larry R. Wright, Plano, for Appellant.

Richard L. Griffith, Evelyn R. Leopold, Jordan M. Parker, Cantey & Hanger, Fort Worth, for Appellee.

Before DAY, DAUPHINOT and RICHARDS, JJ.

OPINION

DAY, Justice.

We withdraw our opinion and judgment of November 7, 1996 and substitute the opinion and judgment issued this day.

Pamela Odak, appellant, appeals an order dismissing her health care liability claim. The trial court dismissed her claim for failure to comply with the certification or bonding requirement of the Medical Liability and Insurance Improvement Act. Act of May 25, 1993, 73rd Leg., R.S., ch. 625, § 3, 1993 Tex. Gen. Laws 2347, 2347 (amended 1995) (current version at TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01 (Vernon Pamph.1996)). Neither Odak nor her attorney filed a $2000 cost bond, or an affidavit certifying that an expert's report had been obtained, within ninety days of filing suit. After giving Odak proper notice and ample opportunity to correct this omission, the trial court dismissed her claim.

Odak challenges this provision on three grounds. First, she contends that the provision violates the Open Courts and Due Process provisions of the Texas Constitution because it interferes unreasonably or arbitrarily with her right of access to the courts. TEX. CONST. art. I, §§ 13, 19. Next, she argues that this requirement does not apply to her claim which she claims falls under the theory of res ipsa loquitur. Finally, Odak asserts that the provision violates the Open Courts provision because it imposes a duty on her attorney that conflicts with the Disciplinary Rules of Professional Conduct and thus requires him to perform an unethical task. TEX. CONST. art. I, § 13; TEX. DISCIPLINARY R. PROF. CONDUCT 1.08(h) (1991), reprinted in TEX. GOV'T CODE ANN. tit. 2, subtit. G app. (Vernon Supp.1996) (STATE BAR RULES art. X, § 9). We affirm the trial court's order of dismissal.

Odak originally filed suit individually and as next friend for her daughter in March 1994. The court dismissed that cause without prejudice for failure to comply with this same statutory requirement. She refiled the suit individually in May 1995. The trial court signed a notice of intent to dismiss for failure to comply with this requirement one week after the expiration of the 90-day period. Over three weeks passed with no response. The trial court signed an amended notice of intent to dismiss giving Odak 30 days to respond by filing either an affidavit or a cost bond for the increased amount of $4,000. She was instructed in this notice that failure to do so would result in dismissal. Over 50 days passed with no response. Appellee Arlington Memorial Hospital filed a motion to dismiss for failure to post either the bond or the affidavit required, and the trial court dismissed her claim with prejudice. Odak then responded with a motion for new trial raising her constitutional claims, but she never claimed that the requirement was onerous due to cost or offered any reason for ignoring the court's repeated requests for her response.

CONFLICT WITH DISCIPLINARY RULES

We first find there is no conflict with the requirement of a cost bond or certification under the applicable version of article 4590i and Rule 1.08(h) of the Disciplinary Rules of Professional Conduct. Rule 1.08(h) states:

(h) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:

(1) acquire a lien granted by law to secure the lawyer's fee or expenses; and

(2) contract in a civil case with a client for a contingent fee that is permissible under Rule 1.04.

TEX. DISCIPLINARY R. PROF. CONDUCT 1.08(h) (1991).

The applicable version of section 13.01 of article 4590i states:

(a) In a health care liability claim, the plaintiff's attorney or, if the plaintiff is not represented by an attorney, the plaintiff shall, within 90 days after the date the action was commenced, file an affidavit attesting that the attorney or plaintiff has obtained a written opinion from an expert who has knowledge of accepted standards of care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim, that the acts or omissions of the physician or health care provider were negligent and a proximate cause of the injury, harm, or damages claimed.

(b) A plaintiff or plaintiff's attorney shall be deemed to be in compliance with Subsection (a) of this section if, within 90 days after the date the action was commenced, the plaintiff posts a bond with surety or any other equivalent security approved by the court, including cash in an escrow account, for costs in an amount of $2,000.

Act of May 25, 1993, 73rd Leg., R.S., ch. 625, § 3, 1993 Tex. Gen. Laws 2347, 2347 (amended 1995) (current version at TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01 (Vernon Pamph.1996)). Thus, the statute placed the onus of compliance on the plaintiff's attorney. The 1995 amendment eliminated this by more appropriately placing the burden on the claimant. See TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01 (Vernon Pamph.1996). Regardless, we do not find that the applicable version creates an unacceptable conflict with the disciplinary rules when considered in light of Rule 1.08(d), which provides:

(d) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation or administrative proceedings, except that:

(1) a lawyer may advance or guarantee court costs, expenses of litigation or administrative proceedings, and reasonably necessary medical and living expenses, the repayment of which may be contingent on the outcome of the matter; and

(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

TEX. DISCIPLINARY R. PROF. CONDUCT 1.08(h) (1991). Thus, the rules expressly permit an attorney to provide a client with assistance such as posting a cost bond or obtaining an expert opinion on a claim's validity and preparing and filing an affidavit. Accordingly, the statute does not violate the Open Courts provision of the Texas Constitution by imposing a duty on her attorney that he cannot comply with without breaching the disciplinary rules. We overrule Odak's third point of error.

RIGHT OF ACCESS TO THE COURTS

Odak also argues that this statutory requirement places an unreasonable barrier to her court access and violates the Open Courts and Due Process guarantees of the Texas Constitution. TEX. CONST. art. I, §§ 13, 19.

These are the two "due process" provisions in the Texas Constitution. The Open Courts guarantee is set forth in Article I, Section 13: "All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law." TEX. CONST. art. I, § 13. The Due Course of Law provision states, "No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land." TEX. CONST. art. I, § 19. The Due Course of Law clause provides general guarantees of due process and is regarded as the traditional due process guarantee. LeCroy v. Hanlon, 713 S.W.2d 335, 340, 340 n. 7 (Tex.1986); Sax v. Votteler, 648 S.W.2d 661, 664 (Tex.1983). The Open Courts provision provides a specific guarantee of right of access to the courts. LeCroy, 713 S.W.2d at 340-41; Nelson v. Krusen, 678 S.W.2d 918, 921 (Tex.1984). Odak argues specifically that the statute violates a both guarantees by creating a barrier between her and open access to Texas courts.

The Open Courts clause "guarantees all litigants the right to redress their grievances ... the right to their day in court." LeCroy, 713 S.W.2d at 341. We must consider two criteria to sustain an Open Courts challenge:

1) whether the claimant has a cognizable common-law cause of action that the statute restricts; and

2) whether that statutory restriction is unreasonable or arbitrary when balanced against the statute's purpose and basis.

Sax, 648 S.W.2d at 666; see also Lucas v. United States, 757 S.W.2d 687, 690 (Tex.1988); LeCroy, 713 S.W.2d at 341. In the present case the litigants agree that Odak's health care liability claim is a cognizable common-law cause of action. Consequently, we need only consider whether the certification or cost bond requirement of this version of article 4590i places unreasonable or arbitrary restrictions on access to the courts when balanced against the purpose and basis of that statute.

We necessarily begin with the presumption that the statute is valid.

In passing upon the constitutionality of a statute, we begin with a presumption of validity. It is to be presumed that the Legislature has not acted unreasonably or arbitrarily; and a mere difference of opinion, where reasonable minds could differ, is not a sufficient basis for striking down legislation as arbitrary or unreasonable. The wisdom or expediency of the law is the Legislature's prerogative, not ours.

Smith v. Davis, 426 S.W.2d 827, 831 (Tex.1968). The Legislature sets forth at length its purpose for enacting the statute in section 1.02 of the Medical Liability and Insurance Improvement Act. TEX.REV.CIV. STAT. ANN. art. 4590i, § 1.02 (Vernon Pamph.1996). It passed the act in response to what it considered a medical malpractice insurance crisis in Texas. The Legislature puts forth as the main purposes of the statute control of the medical malpractice insurance crisis and assuring the availability of affordable medical and health care. Id.

Next, we must determine how substantially this requirement interferes with a litigant's...