Sandles v. Howerton

• Decision Date: 27 May 2005
• Docket Number: No. 05-04-01077-CV.,05-04-01077-CV.
• Citation: 163 S.W.3d 829
• Parties: Candace SANDLES, as the Administratrix of the Estate of Sarah Ann Williams, Deceased, Appellant v. Gary HOWERTON, Appellee.
• Court: Texas Supreme Court

163 S.W.3d 829

Candace SANDLES, as the Administratrix of the Estate of Sarah Ann Williams, Deceased, Appellant v. Gary HOWERTON, Appellee.

No. 05-04-01077-CV.

Court of Appeals of Texas, Dallas.

May 27, 2005.

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Jay C. English, Sarah Annette Kasparian, English & Associates, P.C., Dallas, for appellant.

Brenda Neel Hight, Lance E. Caughfield, Fletcher & Springer, L.L.P., Dallas, for appellees.

Before Justices WRIGHT, FITZGERALD and LANG-MIERS.

OPINION

Opinion by Justice LANG-MIERS.

In this medical malpractice case, we address whether the trial court abused its discretion by refusing to grant appellant a thirty-day grace period within which to file her expert report, by dismissing her claims with prejudice pursuant to the Medical Liability and Insurance Improvement Act of Texas¹ (the Act) and by awarding attorneys' fees against appellant as sanctions. We affirm the trial court's judgment.

BACKGROUND

Candace Sandles, as administratrix of the estate of Sarah Ann Williams, deceased, filed this health care liability claim on March 5, 2003 alleging that Ashford Hall Nursing Home, the Lion Hospice Foundation, two doctors and Gary Howerton, a family nurse practitioner, were negligent in providing medical care for Williams, resulting in her death.² Williams' death allegedly resulted from a series of falls over several months at the nursing home where she was a patient.

Under article 4590i, section 13.01(d) of the Act, Sandles was required on or before September 1, 2003 to either dismiss her claims voluntarily or provide opposing counsel with an expert report showing, among other things, how each defendant physician or health care provider failed to meet an applicable standard of care.³ Sandles furnished an expert report of registered nurse Joy Souther on September 3, 2004 to Howerton's co-defendants but did not furnish the report to Howerton on that date. It appears Howerton was not served with citation in the lawsuit until after that date because Howerton filed his answer on October 8, 2004. He received a copy of the report on December 31, 2004.

In March 2004, Howerton filed a motion to dismiss Sandles' claims against him alleging she failed to comply with the expert report requirements of article 4590i and requesting attorneys' fees under section 13.01(e).⁴ In her response to the motion to dismiss, Sandles moved for an extension of time to file her expert report. At a combined hearing, the trial court denied Sandles' request for an extension and granted Howerton's motion to dismiss, but did not state the basis for its rulings.

Howerton then filed a combined motion for attorneys' fees and to sever his case from the other defendants. In response to this motion, Sandles asked the court to reconsider its dismissal and grant her a thirty-day extension to file an expert report in compliance with article 4590i section 13.01. Following the hearing, the trial court denied the motion for reconsideration and entered a final judgment in favor of Howerton granting the severance and awarding him $35,000 in attorneys' fees, court costs, and $22,500 in attorneys' fees contingent on whether appellant is unsuccessful on appeal, plus five percent post-judgment interest. Sandles timely appealed.

DISCUSSION

Sandles raises three issues on appeal: (1) the trial court erred in dismissing her claim against Howerton without allowing her an extension to file an amended expert report, (2) the trial court erred in finding her expert's report was insufficient as a matter of law, and (3) the trial court erred in awarding attorneys' fees to Howerton. We have found no ruling in the record where the trial court held Sandles' expert report was insufficient as a matter of law. In fact, the trial court did not state the basis for its rulings.⁵ In that situation, we will uphold the court's judgment on any valid legal theory supported by the record. See City of Garland v. Booth, 895 S.W.2d 766, 768-69 (Tex.App.-Dallas 1995, writ denied); see also Town of Sunnyvale v. Mayhew, 905 S.W.2d 234, 243 (Tex.App.-Dallas 1994), rev'd on other grounds by Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex.1998); Dalrymple v. Univ. of Tex. Sys., 949 S.W.2d 395, 400 (Tex.App.-Austin 1997), rev'd on other grounds by Brewerton v. Dalrymple, 997 S.W.2d 212 (Tex.1999); Pepe Int'l Dev. Co. v. Pub Brewing Co., 915 S.W.2d 925, 929 (Tex.App.-Houston [1st Dist.] 1996, no pet.); Gessmann v. Stephens, 51 S.W.3d 329, 335 (Tex.App.-Tyler 2001, no pet.). Because a noncompliant expert report is one basis upon which the trial court could have ruled, we will address Sandles' argument.

1. Adequacy of the expert report

We review a trial court's determination of the adequacy of an expert report under an abuse of discretion standard. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001); Copeland v. Ayers, 138 S.W.3d 652, 654 (Tex.App.-Dallas 2004, pet. denied); Hansen v. Starr, 123 S.W.3d 13, 19 (Tex.App.-Dallas 2003, pet. denied). The trial court must grant a motion to dismiss a claimant's health care liability claim unless the claimant shows she made a good faith effort to comply with the requirements of section 13.01. Eichelberger v. St. Paul Med. Ctr., 99 S.W.3d 636, 638 (Tex.App.-Dallas 2003, pet. denied); Fischer v. Tenet Hosps., Ltd., 106 S.W.3d 110, 115 (Tex.App.-Dallas 2002), rev'd on other grounds by Horizon/CMS Healthcare Corp. v. Fischer, 111 S.W.3d 67 (Tex.2003).

Article 4590i section 13.01(r)(6) defined expert report as . . . a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report 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.

Act of May 1, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws at 987 (repealed 2003).

An expert report filed under section 13.01 must discuss the standard of care, breach, and causation with sufficient specificity to inform the defendant of the conduct she has called into question and to provide a basis for the trial court to conclude the claims have merit. Palacios, 46 S.W.3d at 878-79; Eichelberger, 99 S.W.3d at 638-39; Fischer, 106 S.W.3d at 116. "A report that merely states the expert's conclusions about the standard of care, breach, and causation does not fulfill [the purposes of the Act]." Palacios, 46 S.W.3d at 879. A report that omits any of the statutory requirements is not a good faith effort to comply with the Act. Id.

We have reviewed Souther's report and conclude it is not a good faith effort to comply with the definition of an expert report. Souther's report is three and one-half pages describing Williams' mental and physical condition and incidents occurring at the nursing home over a period of several months. The report refers generally to acts that "the staff," "the nursing staff," and "the nurses" did or failed to do. Concerning the breach of the standard of care, Souther states:

The nursing staff in their failure to recognize, address and implement the most basic precautions in protecting Mrs. Williams from falls and the resulting injuries, fell below the nursing standard of care and contributed to the acute injury of a subdural hematoma and her resulting demise.

Souther's report refers specifically to Howerton only once: "Progress Note of G. Howerton on January 29, 2001, states, `unwitnessed fall, found on floor'." It does not inform Howerton of the care expected of him or of the manner in which he failed to provide that care. See Fischer, 106 S.W.3d at 116. Consequently, Souther's report is a conclusory statement that Williams should have received different treatment and was injured as a result. See Eichelberger, 99 S.W.3d at 639. We overrule Sandles' second issue.

2. Request for extension under section 13.01

Sandles also argues the trial court erred by not granting her a thirty-day extension to correct any deficiency in her expert's report because her failure to comply with section 13.01 was the result of an accident or mistake.⁶ We review a trial court's decision not to grant a claimant a grace period to file an expert report under an abuse of discretion standard. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex.2003); Ayers, 138 S.W.3d at 654.

Sandles filed three motions regarding experts but only the second motion concerns us on appeal.⁷ Her second motion was filed May 5, 2004 and was designated a request for extension under section 13.01(f).⁸ However, Sandles argues on appeal that this motion, although designated as a subsection (f) motion, was argued also as a subsection (g) motion. Section 13.01(g) provided:

Notwithstanding any other provision of this section, if a claimant has failed to comply with a deadline established by Subsection (d) of this section and after hearing 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. A motion by a claimant for relief under this subsection shall be considered timely if it is filed before any hearing on a motion by a defendant under Subsection (e) of this section.

Act of May 1, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws at 986 (repealed 2003).

In the conclusion of her motion, Sandles states:

Plaintiff did not intentionally miss the deadline for designation of expert, nor was the deadline ignored due to conscious indifference, but was missed as the result of an accident and/or a mistake. For the reasons described herein, Plaintiff respectfully requests the Court GRANT her Motion for Rule 13.01(f) Extension to File Expert Report, whereby for good cause shown after motion and hearing, ...