Russ v. Titus Hosp. Dist.

• Decision Date: 03 February 2004
• Docket Number: No. 06-03-00032-CV.,06-03-00032-CV.
• Citation: 128 S.W.3d 332
• Parties: Robin Gwynne RUSS, Appellant, v. TITUS HOSPITAL DISTRICT, d/b/a Titus Regional Medical Center, Peggy Burge, R.N., Rachel Meyers, R.N., and Dr. Mark E. Quiring, Appellees.
• Court: Texas Court of Appeals

128 S.W.3d 332

Robin Gwynne RUSS, Appellant, v. TITUS HOSPITAL DISTRICT, d/b/a Titus Regional Medical Center, Peggy Burge, R.N., Rachel Meyers, R.N., and Dr. Mark E. Quiring, Appellees.

No. 06-03-00032-CV.

Court of Appeals of Texas, Texarkana.

Submitted January 22, 2004.

Decided February 3, 2004.

Paul D. Hoover, Paul D. Hoover & Associates, Texarkana, for appellant.

C. Victor Haley, John L. Price, Fairchild, Price, et al., Nacogdoches, A. Craig Carter, Davis & Davis, PC, Austin, for appellees.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice CARTER.

Robin Gwynne Russ appeals from a judgment dismissing her medical malpractice suit against Titus Hospital District, d/b/a Titus Regional Medical Center (the Hospital); Peggy Burge, R.N.; Rachel Meyers, R.N.; and Dr. Mark E. Quiring (collectively referred to as Appellees). Russ sustained injuries from a fall out of a hospital window. According to her allegations, the fall resulted from negligence of the various procedures employed by the Appellees while Russ was under their care awaiting transfer to a psychiatric hospital. Appellees moved to dismiss the case alleging the expert report was not timely filed and that it did not comply with the statutory requirements for an expert report. The trial court dismissed the suit. We affirm in part, reverse in part, and remand the case to the trial court for further proceedings consistent with this opinion.

Russ raises two issues on appeal. First, she argues the trial court abused its discretion in failing to allow an additional thirty days in which to file an expert report. Second, she contends the trial court erred in granting the motion to dismiss because the report was sufficient under Article 4590i.

On or about December 3, 1999, Russ sustained injuries from a fall out of a window. Russ filed suit against numerous parties, including the Hospital, on November 30, 2001. The petition alleged the Hospital was negligent in its treatment of Russ. Russ failed to file an expert report by May 29, 2002 (180 days after filing suit). On July 1, 2002, Appellees filed a motion to dismiss. On the day of the hearing, July 22, 2002, but before the hearing, Russ filed a motion to extend the deadline until August 15, 2002. The trial court held the hearing, but the record does not contain a ruling on either the motion to dismiss or the motion to extend the deadline. On August 16, 2002, Russ filed a second motion to extend requesting the deadline be extended to August 20, 2002, which was twenty-nine days after the hearing. On August 20, 2002, Russ provided Appellees a copy of the expert report by fax. Appellees filed a motion to exclude Russ' report due to failure to comply with the deadline and for failure to meet the requirements of the statute. On October 2, 2002, a hearing was held and the trial court dismissed the lawsuit. Russ now appeals.

Timeliness of Motion to Extend Time

In her first point of error, Russ argues the trial court erred in failing to grant an additional thirty days in which to file an expert report. We review the trial court's ruling on a motion for extension of time to file an expert report under an abuse of discretion standard. See Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003). An abuse of discretion occurs when a trial court acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. See Moore v. Sutherland, 107 S.W.3d 786, 789 (Tex. App.-Texarkana 2003, pet. denied). A trial court will be deemed to have acted arbitrarily and unreasonably if it could have only reached one decision, yet reached a different decision. Teixeira v. Hall, 107 S.W.3d 805, 807 (Tex.App.-Texarkana 2003, no pet.). "[A] clear failure by the trial court to ... apply the law correctly will constitute an abuse of discretion, ...." Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).

Article 4590i, Section 13.01(d) requires a plaintiff asserting a claim against a healthcare provider or physician to submit an expert report, along with the expert's curriculum vitae, no later than the 180th day after filing suit. See Tex.Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d).¹ The Act requires an expert report to provide "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." See Tex. Rev.Civ. Stat. Ann. art. 4590i, § 13.01(r)(6) (repealed 2003).

Article 4590i, Section 13.01 provides two methods by which a claimant can receive an extension to the 180-day deadline. Under Section 13.01(f), "[t]he court may, for good cause shown after motion and hearing, extend any time period specified in Subsection (d) of this section for an additional 30 days. Only one extension may be granted under this subsection." Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(f) (repealed 2003). Section 13.01(f) has been interpreted by this Court to be directory rather than mandatory. Roberts v. Med. City Dallas Hosp., Inc., 988 S.W.2d 398, 402 (Tex.App.-Texarkana 1999, pet. denied). Under the second method, found in Section 13.01(g), if "the court finds that the failure of the claimant or the claimant's attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection." Section 13.01(g) has been interpreted to be mandatory on a finding that the failure was a result of accident or mistake. Sutherland, 107 S.W.3d at 789. An extension under Section 13.01(g) can be obtained for either failure to file a report or for an inadequate report, provided the failure was not intentional or a result of conscious indifference. In re Morris, 93 S.W.3d 388, 391 (Tex. App.-Amarillo 2002, no pet.).

The Appellees contend the expert report is untimely because the report was not filed within 210 days of the filing of the suit. Russ' first motion for extension of the deadline was filed on July 22, 2002. This motion requested an extension of the deadline until August 15, 2002, and was entitled "MOTION TO EXTEND TIME FOR FILING UNDER 4590(i) SECTION 13.01(F)." An extension under Section 13.01(f) extends the 180-day period described in Section 13.01(d) to 210 days.² Although this Court has noted the motion to extend the deadline can be filed at any time, the extension begins running at the end of the original 180-day time period in subsection (d) and lasts until 210 days from the filing of the suit. See Roberts, 988 S.W.2d at 402. Under an extension granted pursuant to Section 13.01(f), the expert report would have been required to be furnished to the opposing parties within 210 days of the filing of the suit. If the extension had been requested under Section 13.01(f), the expert report would have been required to be furnished to the Hospital and other defendants by June 28, 2002. The Appellees contend that, because the expert report was not furnished to the opposing parties until August 20, 2002, the expert report was not timely.

Even though the title refers to Section 13.01(f), our conclusion is that the substance of Russ' motion requested the extension under Section 13.01(g). In the motion and at the hearing, the parties recited the standards of Section 13.01(g) instead of Section 13.01(f) to the trial court. In the body of the motion, it is alleged that co-counsel was in trial and that counsel did not realize it was his responsibility to file the expert report. Such a statement is consistent with a showing of accident or mistake. In addition, the body of the motion states, "[t]his motion is timely since filed prior to the hearing on Defendants [sic] motions." This statement asserts the timeliness requirement of Section 13.01(g) rather than Section 13.01(f).

Further, at the hearing on July 22 at which the court considered the first motion to extend, the Hospital and Russ both argued under the standards of Section 13.01(g). Counsel for the Hospital stated:

I think that the standard is in terms of when a motion like this for an extension is to be granted is when there's a showing of accident or mistake ... I'm not sure that there's any showing of accident or mistake on the part of Mr. Cooksey's part [sic] ... I think they need to show some sort of accident or mistake on Mr. Cooksey's part to justify an extension....

"Accident or mistake" is the standard for a motion under Section 13.01(g), not Section 13.01(f), which requires "good cause." Shortly thereafter, Russ' counsel made the assertion to the trial court that "a motion to extend time is timely filed if it's filed before the time of the hearing on their motion to dismiss." As discussed above, this is the standard for Section 13.01(g) rather than Section 13.01(f). At this point, the trial court inquired if "the statute uses the language `accident or mistake.'" The Hospital's counsel responded that the statute says there cannot be "conscious indifference," and Russ' counsel agreed. We not that counsel for Dr. Quiring stated the standard was "good cause," which is the standard under Section 13.01(f).

A motion should be construed by its substance to determine the relief sought, not merely by its form or caption. See Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex.1999). Because the motion contained allegations consistent with showing accident or mistake, contained the time standards for Section 13.01(g)—not Section 13.01(f), and at the hearing, it was primarily treated by counsel and the trial court in terms unique to Section 13.01(g), we find the motion is one for extension under Section 13.01(g).

The next question is whether the first motion to extend was timely filed.³ The first motion for extension was filed before the hearing. A motion under Section 13.01(g) "shall be considered timely...