Poland v. Ott

• Decision Date: 19 December 2008
• Docket Number: No. 01-07-00199-CV.,01-07-00199-CV.
• Citation: 278 S.W.3d 39
• Parties: Raymon POLAND, Individually and as Independent Administrator of the Estate of Jessie Poland, Robert Martin, and Frank Martin, Appellants, v. David OTT, Appellee.
• Court: Texas Court of Appeals

278 S.W.3d 39

Raymon POLAND, Individually and as Independent Administrator of the Estate of Jessie Poland, Robert Martin, and Frank Martin, Appellants, v. David OTT, Appellee.

No. 01-07-00199-CV.

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

December 19, 2008.

Substituted Opinion Dissenting from the Denial of En Banc Consideration January 22, 2009.

Andrew Lee Payne, Sandrice M. McGlown, Payne & Payne & Associates, Houston, for appellants.

Chetna Gosain Koshy, John R. Strawn, Cruse, Scott, Henderson & Allen, L.L.P., Cynthia D. Rendon, Frank A. Doyle, Lauren B. Harris, Melaine Ann Rubinsky, Tamara M. Madden, Johnson, Spalding, Doyle, West 7 Trent, LLP, Dale Burrus Frisby, Leah Ann Greene, Kroger, Myers, Frisby & Hirsch, Houston, for appellee.

Panel consists of Justices TAFT, KEYES, and ALCALA.

OPINION

TIM TAFT, Justice.

Appellants, Raymon Poland, individually and as independent administrator of the estate of Jessie Poland, Robert Martin, and Frank Martin ("the Poland parties"), timely moved for rehearing to the panel and for en banc reconsideration to the Court. On March 5, 2008, the Court denied the Poland parties' rehearing motion, but their motion for en banc reconsideration remained pending, thus maintaining our plenary power over the appeal. See TEX.R.APP. P. 19.1; see also City of San Antonio v. Hartman, 201 S.W.3d 667, 670-71 (Tex.2006) (in holding that motion for en banc reconsideration extends time in which to file petition for review, noting that rule 19.1 treats motions for en banc reconsideration as subset of rehearing motions for purpose of determining court of appeals' plenary power). During that plenary power, we now sua sponte withdraw our opinion and judgment issued January 31, 2008 and issue this opinion and judgment in their stead. See Univ. of Tex. Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 870 (Tex.App.-Houston [1st Dist.] 2007, pet. denied) (citing rule 19.1 as authority for withdrawing opinion and judgment sua sponte within Court's plenary power and reissuing new opinion and judgment). Nonetheless, we do not change the disposition of the appeal. The Poland parties' motion for en banc reconsideration is rendered moot by our withdrawing and reissuing our opinion and judgment.¹ Cf. Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 41 n. 4 (Tex.App.-Houston [1st Dist.] 2004, pet. denied) (op. on reh'g) (noting that motion for en banc reconsideration becomes moot when motion for rehearing is granted and new opinion and judgment issue).

The Poland parties appeal from a judgment dismissing their health-care-liability and related claims against appellee, Dr. David Ott. We determine whether the trial court erred in granting Dr. Ott's motion to dismiss the claims against him for the Poland parties' failure timely to serve an expert report on Dr. Ott. We affirm.

Background

The factual recitations come from the Poland parties' petitions. Appellant Raymon Poland was the husband of Jessie Poland; the remaining appellants were his natural children. In August 2003, Jessie Poland, under the care of Dr. James Willerson (an appellee in a related appeal) and Dr. Ott, was hospitalized at St. Luke's Episcopal Hospital and the Texas Heart Institute (both appellees in another related appeal) for an elective surgical procedure to repair her heart's mitral valve. Dr. Alina Grigore, who was employed by Dr. Arthur S. Keats & Associates (both of whom are appellees in another related appeal), was the anesthesiologist for the surgical procedure. The Poland parties alleged that, at the time of surgery, Jessie Poland's blood contained a level of Coumadin that the health-care providers should have known rendered her blood fully anti-coagulated and, thus, rendered surgery dangerous. The surgery was nonetheless performed; Jessie Poland bled internally; and she died several days later of multi-system organ failure.

The Poland parties sued, among other defendants, St. Luke's Episcopal Hospital, the Texas Heart Institute, the University of Texas Health Science Center at Houston, Arthur S. Keats & Associates, and Drs. Ott, Grigore, and Willerson on October 24, 2005 for Jessie Poland's wrongful death, for her pain and suffering and medical costs before her death, and for her burial expenses. By the time of the trial court's complained-of ruling, the Poland parties had amended their petition to allege the following causes of action or theories of recovery against all defendants, including Dr. Ott: (1) negligence, (2) gross negligence, (3) actual and constructive fraud, (4) intentional infliction of emotional distress, (5) assault and battery, (6) intentional and negligent abandonment, (7) breach of fiduciary duties, (8) "negligent breach of fiduciary duties," (9) malpractice, (10) "lack of proper informed consent," (11) "tampering with official medical records," (12) "forgery," (13) violations of the Texas Deceptive Trade Practices-Consumer Protection Act ("DTPA"),² and (14) conspiracy among all defendants. This "live" petition also added allegations that the defendants had altered Jessie Poland's medical records and forged Raymon Poland's signature on unspecified hospital documents. They sought actual and exemplary damages.

On June 20, 2006, Dr. Ott moved, under Texas Civil Practice and Remedies Code section 74.351(b), to dismiss the Poland parties' health-care-liability claims against him for failure to serve an expert report upon him or his attorney within 120 days of the filing of those claims.³ See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(b) (Vernon Supp.2008) (providing that trial court must dismiss health-care-liability claim against defendant if claimant fails to serve expert's report and curriculum vitae on that defendant within period specified by section 74.351(a)); Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875 (providing that claimant must serve each defendant against whom health-care-liability claim is asserted with expert's report and curriculum vitae not later than 120 days of claim's filing) [hereinafter, "former section 74.351(a)"],⁴ amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1, 2005 Tex. Gen. Laws 1590, 1590 (current version at TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (Vernon Supp.2008)). The motion alleged that the Poland parties had served the report of their expert, Dr. Dennis Moritz, on Dr. Ott's attorney 123 days after their health-care-liability claims had been filed against him.⁵

The Poland parties did not deny that they had served Dr. Moritz's May 2, 2005 report on Dr. Ott's counsel 123 days after their claims had been filed against Dr. Ott, but in their response, they alleged that they had "served" that same report on Gary McLeod, a representative of Dr. Ott's professional liability carrier (APMC Insurance Services), whom they described in their response as Dr. Ott's "designated representative" for receipt of the report, on July 29, 2005—nearly three months before suit was filed.⁶ The Poland parties produced evidence that they alleged supported their response's allegation. For example, they attached a letter, dated July 13, 2005, from McLeod to the Poland parties' attorneys, which in pertinent part read:

Your letter of June 30, 2005 to David Alan Ott, M.D. has been referred to us for response, as we are his professional liability carrier. We will be investigating this case on behalf of Dr. Ott.

...

I also request that you provide me with your medical expert's specific criticisms of our member's care so that we might share those concerns with David Alan Ott, M.D.

They also attached their attorney's July 29, 2005 response to McLeod's letter:

Additionally, you will find enclosed the information that you requested regarding the opinion of our expert witness.

...

I will also fax you some additional information shortly.

Attached to the Poland parties' attorney's July 29 letter was the unsigned expert report of Dr. Moritz and his curriculum vitae ("CV"). Finally, the Poland parties attached the affidavit of their counsel, who averred in pertinent part as follows:

I received notice from APMC Insurance Services on behalf of Dr. Ott. They [sic] requested the "medical expert's specific criticisms of our member's care so that we might share those concerns with David Alan Ott, M.D." .... I then replied ... by sending Mr. Gary McLeod the Expert Report with Resume. I discussed wanting to look at possible settlement of this claim .... Mr. McLeod stated that he would have to send for the medical records from the hospital, to which I returned to him the medical authorization he had previously sent me, along with a copy of the Expert Report with Resume.... The Defendants have had the Expert report with Resume since May 2005.

(Emphasis added.)

The hearing on Dr. Ott's motion to dismiss and his motion to strike the live petition occurred on July 14, 2006. Other defendants' motions to dismiss, objections to the expert report, and objections to the live petition were heard simultaneously. No additional evidence was presented at the hearing, but the following discussion between the trial court and Dr. Ott's attorney transpired:

Court: Who got the [expert] report beforehand [before suit's filing]?

...

Dr. Ott's attorney: Dr. Ott received it through—he was served with it through his carrier pre suit notification. We, as the attorneys did not— we did not have communications with the plaintiffs before the lawsuit was filed.

...

Court: ... Heart Institute and St. Luke's gets [sic] pre suit report, [Dr.] Grigore gets no report before or after.... Willerson, gets—is not a part of this lawsuit. [Dr.] Ott gets report pre suit, directly from his insurance carrier. Attorneys never—

Dr. Ott's attorney: The insurance carrier, yes. The insurance carrier gets them.

On October 30, 2006, the trial court rendered an interlocutory order that, among doing other things, dismissed the claims against Dr. Ott with prejudice:

On July 14,...