Ogletree v. Matthews, 06-0502.

• Court: Supreme Court of Texas
• Citation: 262 S.W.3d 316
• Docket Number: No. 06-0502.,06-0502.
• Parties: Jan N. OGLETREE, M.D. and Heart Hospital of Austin, Petitioners, v. Nancy Kay MATTHEWS and Luann Matthews, Respondents.
• Decision Date: 30 November 2007

262 S.W.3d 316 Jan N. OGLETREE, M.D. and Heart Hospital of Austin, Petitioners,
v.
Nancy Kay MATTHEWS and Luann Matthews, Respondents. No. 06-0502. Supreme Court of Texas. Argued April 10, 2007. Decided November 30, 2007.

[262 S.W.3d 317]

Terri S. Harris, Patricia Sue Allen, Ewbank & Byrom, P.C., Richard Charles Geisler, Missy K. Atwood, Maria Cantu Hexsel, Germer Gertz Beaman & Brown, LLP, Austin, TX, for Petitioners.

Charles J. Young, Richey & Young, Austin, TX, Robert T. Hardcastle, Woodland Park, CO, for Respondents.

Chief Justice JEFFERSON delivered the opinion of the Court.

The Civil Practice and Remedies Code requires a health care liability claimant to serve expert reports on providers within 120 days after filing suit. If the claimant does not serve the report within 120 days, the trial court must grant the affected party's motion to dismiss the claim, and the failure to do so is subject to interlocutory appeal. If, however, the claimant's report is timely but deficient, the trial court may grant a single, thirty day extension to cure that deficiency, and the order granting that extension may not be appealed. We must decide whether a defendant may immediately appeal when a trial court both denies a motion to dismiss and grants the claimant a thirty day extension to cure expert reports that, although served timely, are deficient. We conclude that the statute prohibits such an appeal.

I Factual and Procedural Background

Eighty-four-year-old John Burke Matthews was admitted to Heart Hospital of Austin on September 27, 2002. Several days into his hospitalization, Dr. Jan Ogletree, a urologist, performed a urinary catheterization procedure on Mr. Matthews. Dr. Ogletree is alleged to have inserted the catheter negligently, causing Mr. Matthews to suffer traumatic bruising, bladder perforation, and acute renal failure. Mr. Matthews died on October 7, 2002.

Plaintiffs Nancy Kay Matthews and Luann Matthews brought a health care liability claim against Dr. Ogletree and Heart Hospital of Austin complaining of Mr. Matthews's medical care. Pursuant to Texas Civil Practice and Remedies Code section 74.351, the plaintiffs timely filed expert reports from: (1) Dr. Richard Karsh, a radiologist; (2) nurse Alexandria Burwell; and (3) nurses Marilyn Bignell and Walli Carranza. TEX. CIV. PRAC. & REM.CODE § 74.351(a). Dr. Karsh's report was directed solely to Dr. Ogletree's care (although it did not mention him by name). Dr. Karsh noted that Mr. Matthews's x-rays showed "major extravasation of contrast, almost certainly representing a very significant bladder perforation. . . . [I]t is not even certain (from an x-ray standpoint) that the Foley catheter is in the bladder." He continued:

262 S.W.3d 318

In my opinion (but I would have to defer to a urologist on this) given the inability of the nursing staff to pass the Foley catheter into the bladder and the necessity for the urologist to utilize a stiff metallic "wire" to traverse the urethra, such manipulation and catheterization should have been performed under fluoroscopic guidance. Had that been done the perforation might well have been avoided but certainly could have diagnosed [sic] at the outset, with the likelihood of a smaller tear having resulted. If not recognized in a timely manner, such a tear could lead to long-term problems, including bladder (or, if a urethral tear, urethral) dysfunction, infection, etc. It is apparent that a cystogram was performed shortly after the catheterization, although the exact timetable is unclear; nor do I have records to determine whether or not the response of the physician to the tear was appropriate. (Of course, those might be best reviewed by a urologist.)

The nurses' reports were directed primarily to the care provided by the nursing staff at the hospital, although they outlined various alleged failures by Dr. Ogletree to adhere to the standard of care as well.

Dr. Ogletree timely objected to the sufficiency of the expert reports and moved to dismiss the case. Dr. Ogletree asserted that a radiologist was incapable of opining on a urologist's standard of care and that no curriculum vitae was attached to the expert report as the statute requires. TEX. CIV. PRAC. & REM.CODE § 74.351(a). Dr. Ogletree also complained that the nurses' reports did not satisfy chapter 74's requirement that an expert testifying against a physician must be "practicing medicine," id. § 74.401(a)(1), something nurses may not do, TEX. OCC.CODE § 301.002(2).

The hospital did not object to the reports within the statutory twenty-one day period, but moved to dismiss nonetheless. TEX. CIV. PRAC. & REM. CODE § 74.351(a). The hospital contended that because the nurses' reports lacked a physician's opinion on causation, they were, as expert reports, not merely deficient, but nonexistent. Because its motion to dismiss was based on the "nonexistence" of an expert report, rather than a complaint about the report's sufficiency, the hospital contends that no objection was required.

The trial court found that the radiologist's report was deficient, denied Dr. Ogletree's motion to dismiss, and granted the plaintiffs a thirty day extension to cure deficiencies. See TEX. CIV. PRAC. & REM. CODE § 74.351(c). The court also denied the hospital's motion, finding that the nurses' reports implicated the hospital's conduct and that the hospital's failure to timely object to the reports' sufficiency within twenty-one days waived any objection. Dr. Ogletree and the hospital brought an interlocutory appeal of the trial court's order. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(9).

The court of appeals held that it lacked jurisdiction over Dr. Ogletree's appeal because the trial court's denial of his motion to dismiss was coupled with the grant of an extension to cure the deficient reports. 212 S.W.3d 331, 334-335. The court reasoned that Dr. Ogletree could not sever the denial of the motion to dismiss from the grant of the extension and concluded that permitting an appeal to the denial would negate the statutory language prohibiting an appeal from an order granting an extension. Id. As to the hospital, the court of appeals held that the hospital waived its objections to any deficiencies in the report and affirmed the trial court's order denying the motion to dismiss. Id. at 336. We granted the petitions for review.¹

262 S.W.3d 319

50 Tex. Sup.Ct. J. 447 (Feb. 26, 2007).

II Discussion

In 2003, the Legislature amended the statutes governing health care liability claims. Act of June 2, 2003, 78th Leg., R.S. ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 864. As amended, Texas Civil Practice and Remedies Code section 74.351 provides that, within 120 days of suit, a plaintiff must serve expert reports for each physician or health care provider against whom a liability claim is asserted. TEX. CIV. PRA C. & REM.CODE § 74.351(a). These reports must identify the "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). If a plaintiff does not serve a timely report, a trial court "shall" grant the defendant's motion to dismiss the case with prejudice. An order that denies all or part of the relief sought in such a motion may be immediately appealed. TEX. CIV. PRAC. & REM.CODE §§ 51.014(a)(9) (authorizing interlocutory appeal from order that "denies all or part of the relief sought by a motion under Section 74.351(b)"), 74.351(b). But if a report is served, "[e]ach defendant physician or health care provider whose conduct is implicated . . . must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived." Id. § 74.351(a). Finally, "[i]f an expert report has not been served within [120 days] because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency," id. § 74.351(c), and that decision may not be appealed, id. § 51.014(a)(9) ("an appeal may not be taken from an order granting an extension under Section 74.351").

A Deficient Reports

Dr. Ogletree argues that as a radiologist, Dr. Karsh may not opine on a urologist's standard of care and, therefore, no report was served that met the statutory definition of an "expert report." See TEX. CIV. PRAC. & REM.CODE § 74.401. Because no "report" was served, he contends the trial court had no discretion to grant a thirty day extension, and that its denial of the motion to dismiss should therefore be immediately appealable.

That is not how the Legislature drafted the statute, however. As the court of appeals noted, the predecessor statute allowed a discretionary thirty day extension for good cause and a mandatory thirty day "grace period" upon a showing that the failure to file a conforming report was due to accident or mistake and was not intentional or due to conscious indifference. 212 S.W.3d at 333 n. 4 (citing former TEX. REV.CIV. STAT. art. 4590i, § 13.01). The 2003 amendments, on the other hand, created a statute-of-limitations-type deadline within which expert reports must be served. If no report is served within the 120 day deadline provided by 74.3 51(a), the Legislature denied trial courts the discretion

262 S.W.3d 320

to deny motions to dismiss or grant extensions, and a trial court's refusal to dismiss may be immediately appealed. TEX. CIV. PRAC. & REM.CODE §...