Offenbach v. Stockton

• Citation: 285 S.W.3d 517
• Decision Date: 11 March 2009
• Docket Number: No. 05-08-01185-CV.,05-08-01185-CV.
• Parties: Howard A. OFFENBACH, M.D., Appellant, v. Debbie STOCKTON, as Parent and Next Friend of William Stockton, a minor, Appellee.
• Court: Court of Appeals of Texas

285 S.W.3d 517

Howard A. OFFENBACH, M.D., Appellant, v. Debbie STOCKTON, as Parent and Next Friend of William Stockton, a minor, Appellee.

No. 05-08-01185-CV.

Court of Appeals of Texas, Dallas.

March 11, 2009.

Rehearing Overruled April 13, 2009.

Michael A. Yanof, Stan Thiebaud, Paula Shiroma-Bender, Stinnett, Thiebauld & Remmington, L.L.P., Dallas, TX, for appellant.

Robert James Talaska, The Talaska Law Firm, Houston, TX, for appellee.

Before Justices FRANCIS, LANGMIERS, and MAZZANT.

OPINION

Opinion by Justice LANG-MIERS.

Howard A. Offenbach, M.D. appeals the trial court's order denying his motion to dismiss the health care liability claim filed against him by Debbie Stockton, as parent and next friend of William Stockton, a minor, for failure to timely serve an expert report. We reverse the trial court's order and remand with instructions to render judgment for appellant in accordance with former section 74.351(b) of the civil practice and remedies code.¹

BACKGROUND

On June 13, 2007, Stockton filed a health care liability claim against Offenbach alleging that he failed to exercise ordinary care before and during William's birth in July 1989 because he failed to perform a caesarian section in the face of an arrest of labor. She attached an expert report and curriculum vitae to the petition when it was filed. The expert opined that Offenbach's failure to recommend and perform a caesarian section based on Stockton's risk factors for vaginal delivery resulted in permanent severe impairment and disfigurement of William's left arm due to injury that occurred during birth. Stockton sought damages for William's injuries, past and future medical expenses, loss of future earning capacity, and special damages. Offenbach moved to dismiss the claims for failure to timely serve an expert report. The trial court denied the motion.

STANDARD OF REVIEW

We review a trial court's decision to deny a motion to dismiss a health care liability claim for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Baylor Univ. Med. Ctr. v. Biggs, 237 S.W.3d 909, 916 (Tex.App.-Dallas 2007, pet. denied). A trial court abuses its discretion when it acts in an unreasonable and arbitrary manner, or when it acts without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). But to the extent resolution of this issue requires interpretation of a statute, we review the ruling under a de novo standard. Yilmaz v. McGregor, 265 S.W.3d 631, 637 (Tex.App.-Houston [1st Dist.] 2008, pet. denied); Bohannon v. Winston, 238 S.W.3d 535, 536 (Tex.App.-Beaumont 2007, no pet.). And if the statutory language is not ambiguous, we adopt, with few exceptions, the interpretation supported by its plain meaning. Leland v. Brandal, 257 S.W.3d 204, 206 (Tex.2008).

APPLICABLE LAW

Former chapter 74.351 required a claimant in a health care liability claim to serve an expert report and the expert's curriculum vitae on each party or the party's attorney within 120 days from the date the claim was filed. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 864, 875. It authorized an extension of the 120-day period only "by written agreement of the affected parties." Id. If no expert report was served within 120 days and the parties had not agreed to extend the deadline, former section 74.351(b) allowed the affected physician to move for dismissal of the claims against him. It gave the trial court no discretion to deny the physician's motion:

(b) If, as to a defendant physician or health care provider, an expert report has not been served within the [120-day] period ..., the court, on the motion of the affected physician or health care provider, shall, subject to [an extension for a deficient report], 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.

Id.

THE MOTION TO DISMISS

Stockton filed her claim on June 13, 2007. Consequently, the expert report had to be served on Offenbach by October 11, 2007, which was within 120 days of filing the claim. See id. It is undisputed that Stockton did not serve an expert report on Offenbach or his attorney by October 11, 2007. In fact, it is undisputed that Offenbach was not served with the expert report until sometime after March 2008 when he was served with citation by publication.

At the hearing on the motion to dismiss, Offenbach argued that the statute mandated dismissal because Stockton did not serve the report within 120 days from filing the claim. In response, Stockton argued that an exception should be made in this case because she could not locate Offenbach to serve him earlier. She alleged that Offenbach was a drug addict and was abusing drugs when William was born, that he continued to abuse drugs after William's birth, and that at some point he was indefinitely suspended from the practice of medicine. She alleged that Offenbach moved around and was evicted from at least two residences, and when she attempted to serve him at his last known address, she was told that Offenbach had not lived there for years. She said his whereabouts were unknown and his trail had "run cold." She also pointed out that she had sent the expert report and CV to Offenbach's insurance carrier before she filed the lawsuit and that she had attached a copy of the expert report and CV to the original petition that she filed. She argued that it was impossible to serve Offenbach personally during the 120-day period because his last known address was invalid, certified mail letters were returned unclaimed, and her motion for substitute service was not granted until after the 120 days had expired. Stockton argued that the legislature could not have intended such an unjust result and that the statute violated the constitution. The trial court denied Offenbach's motion to dismiss, stating at the hearing that "the intent of the legislature was fulfilled by both sending the report to the insurance carrier before she filed suit and by filing the report at the time the petition was filed."

THE MEANING OF THE STATUTE

We first look at the language of the statute to determine its meaning. This statute states that if a claimant does not serve an expert report within 120 days of filing the claim, the trial court "shall," on motion of the affected physician, dismiss the claim with respect to that physician. Id. Unlike former article 4590i, which gave a claimant two opportunities to seek an extension of time in which to furnish an expert report,² former section 74.351(a) does not contain a "due diligence" or "good cause" exception. See Badiga v. Lopez, 274 S.W.3d 681, 683 (Tex.2009) (contrasting section 74.351(a) and former article 4590i and noting that by enacting section 74.351(a) "the Legislature denied trial courts the discretion to deny motions to dismiss" when no report is served by the 120-day deadline); Yilmaz, 265 S.W.3d at 640; Bohannon, 238 S.W.3d at 538; Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 460 (Tex.App.-Austin 2006, no pet.).

Additionally, the plain language of the statute requires the expert report to be served "on each party or the party's attorney," and does not authorize service on a party's insurance carrier. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 864, 875. Similarly, pre-suit service on a potential party does not satisfy the statutory service requirement. See Poland v. Ott, 278 S.W.3d 39, 45-51 (Tex.App.-Houston [1st Dist.] 2008, pet. filed) (explaining why pre-suit service does not comply with statute); Univ. of Tex. Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 873-74 (Tex. App.-Houston [1st Dist.] 2007, pet. denied) (stating that party's receipt of expert report before claim filed against it did not establish compliance with service requirements of section 74.351(a)). And filing it with the petition does not comply with the statute. Herrera, 212 S.W.3d at 459 (explaining that to "serve" under former section 74.351(a) means to comply with one of four methods of service in rule of civil procedure 21(a)). As a result, Stockton did not comply with the service requirements of former section 74.351(a) by delivering it to the insurance carrier or filing it with the court. Nevertheless, she argues that we should judicially engraft a "due diligence" exception to the 120-day deadline in situations where it is not possible to serve the defendant. But we are not permitted to engraft exceptions to the clear language in an unambiguous statute no matter how desirable the exceptions may seem. See Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex.1995); A.M. Servicing Corp. of Dallas v. State, 380 S.W.2d 747, 748 (Tex.Civ. App.-Dallas 1964, no writ).

We conclude that Stockton did not serve an expert report in compliance with former section 74.351(a).

THE CONSTITUTIONALITY OF THE STATUTE

Stockton also argues that former section 74.351(a) violates the due process and equal protection clauses of the United States Constitution.³ But she did not cite any authority or make any argument to support her contention; she merely asserts that it does. As a result, Stockton's challenge to the statute's constitutionality on due process and equal protection grounds is not persuasive.

Stockton next argues that the statute violates the open courts provision of the Texas Constitution⁴ because it requires her to accomplish the impossible—serve Offenbach when his whereabouts were unknown. The open courts provision "guarantees all litigants the right to redress their grievances ... the right to their day in court." Odak v. Arlington Mem'l Hosp. Found., 934 S.W.2d 868, 871 (Tex.App.-Fort Worth,...