SPECTRUM HEALTHCARE RESOURCES v. McDaniel
| Decision Date | 12 March 2010 |
| Docket Number | No. 07-0787.,07-0787. |
| Citation | 306 SW 3d 249 |
| Parties | SPECTRUM HEALTHCARE RESOURCES, INC., and Michael Sims, Petitioners, v. Janice McDANIEL and Patrick McDaniel, Respondents. |
| Court | Texas Supreme Court |
Richard Clark Harrist, Robert R. Biechlin, Jr., Thornton Biechlin Segrato Reynolds Guerra, San Antonio, TX, for Petitioners.
Jeffrey C. Anderson, Jessica Leigh Lambert, Law Offices of Jeffrey C. Anderson, San Antonio, TX, for Respondents.
The Texas Medical Liability Act imposes a threshold requirement in a healthcare liability lawsuit for the plaintiff to serve an expert medical report on the defendant within 120 days of filing the claim, the purpose of which is to ensure that only meritorious lawsuits proceed by verifying, at the outset, that the plaintiff's allegations are medically well-founded. TEX. CIV. PRAC. & REM.CODE § 74.351(a); see Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 876-77 (Tex. 2001). In this healthcare liability suit, the defendants moved to dismiss the case after the plaintiffs failed to serve their threshold expert report by the 120-day deadline. The plaintiffs argued that the deadline was extended by written agreement of the parties, in accordance with section 74.351(a) of the Texas Civil Practice and Remedies Code, in the form of the parties' agreed docket control order. After a hearing concerning the order's effect on the statutory deadline, the trial court granted the defendants' motion to dismiss. The court of appeals reversed, concluding that the docket control order was "an unambiguous agreement that extended the date for serving the section 74.351 expert report." 238 S.W.3d 788, 795 (Tex.App.-San Antonio 2007). The docket control order, however, made no mention of the section 74.351 expert report deadline. We hold that an agreement of the parties that is intended to extend the statutorily mandated 120-day expert report deadline must explicitly state that the agreement is for that purpose. An agreed docket control order that includes only a general discovery deadline for the production of expert reports is ineffective to extend the statute's specific threshold expert report requirement. We reverse the judgment of the court of appeals and reinstate the trial court's order dismissing the case.
According to the petition, Janice McDaniel's pelvis was broken while she was receiving physical therapy at Brooke Army Medical Center in San Antonio, Texas. In April 2004, Janice and Patrick McDaniel (collectively, McDaniel) filed a medical malpractice lawsuit against the United States of America, Spectrum Healthcare Resources, Inc., and therapist Michael Sims in the United States District Court for the Western District of Texas. McDaniel did not, however, serve an expert medical report within 120 days as required by section 74.351(a) of the Civil Practice and Remedies Code.1 Sims and Spectrum (collectively, Spectrum) filed a motion to dismiss the case under section 74.351(b)(2), which mandates dismissal with prejudice when the plaintiff fails to comply with the threshold expert report requirement. McDaniel responded that the procedural, discovery-oriented, requirements of the Civil Practice and Remedies Code would not apply in federal court because the federal discovery rules operated to preempt the relevant state laws. See generally FED.R.CIV.P. 26. The federal district court agreed with McDaniel and denied Spectrum's motion to dismiss on that ground. In the same order, the federal court granted the United States' earlier-filed motion for summary judgment. With the United States no longer a defendant, the court dismissed the entire federal case as to the remaining defendants without prejudice in November 2004 for lack of original federal jurisdiction.2
In May 2005, thirteen months after filing the federal lawsuit, McDaniel refiled the lawsuit against Spectrum in state district court. The parties entered into an agreed docket control order that set deadlines for designating testifying experts and producing expert reports. The order also permitted broad discovery to proceed immediately despite the discovery limitations of chapter 74. After McDaniel failed to serve a section 74.351 expert report within 120 days of filing the state court claim, Spectrum again moved to dismiss the case. As in federal court, McDaniel responded that the parties had agreed to extend the deadline for serving expert reports, including the section 74.351 expert report, by way of the docket control order, and that McDaniel had timely complied by serving such an expert report on Spectrum before the deadline contained in the docket control order. After a hearing concerning the applicability of the docket control order to the section 74.351 deadline, the trial court granted Spectrum's motion to dismiss, implicitly rejecting McDaniel's contention that the docket control order extended the chapter 74 expert report deadline.3 Sitting en banc, a divided court of appeals reversed the trial court's order of dismissal, holding that the agreed docket control order unambiguously expressed the parties' intent to replace the statutory deadlines for serving all expert reports, including those required by section 74.351. 238 S.W.3d at 795.
The docket control order reads as follows:
McDaniel maintains that this docket control order contains the written agreement of the parties to extend the chapter 74 threshold expert medical report deadline. First, McDaniel says paragraph one imposes a deadline to do only two things: (1) designate testifying experts, and (2) provide written reports of all retained experts. McDaniel says that because an expert who prepares a chapter 74 medical report is a "retained expert," the paragraph necessarily must include that species of report. Second, McDaniel argues that to the extent the new deadline for serving the expert report is in conflict with the deadline mandated in chapter 74, the docket control order specifically takes precedence over any other deadline set by rule or statute. Finally, McDaniel urges that the order expressly permits the parties to conduct discovery despite the provisions of chapter 74 that would otherwise severely limit discovery until after the expert report is served. McDaniel claims this provision makes it clear that the parties were aware of the chapter 74 limitations and requirements and agreed to waive those procedures.
Spectrum, on the other hand, argues that the docket control order is no more than a generic discovery order that cannot be reasonably construed as a written agreement to extend the date for serving the section 74.351 threshold expert medical report. Spectrum points out that the order makes no reference to chapter 74 expert reports and does not mention the 120-day deadline, such that it is not really about chapter 74 expert reports at all. Spectrum says the order is instead a fairly typical docket control order that includes matters that would ordinarily be found in such an order, like deadlines for completion of discovery and filing dispositive motions, and providing a trial setting. And also, like most docket control orders, it sets a deadline for the parties to designate their respective testifying experts and produce any reports that might have been generated by those testifying experts. Spectrum argues that the phrase "expert witnesses that they intend to call at the trial" in the first paragraph of the order defines the category of "retained experts" whose reports are to be produced, and can only mean testifying experts. Spectrum says the phrase cannot mean, as McDaniel suggests, that all retained expert reports must be produced by the stated deadline because reports of non-testifying consulting experts are not generally discoverable. Moreover, Spectrum contends that paragraph one cannot possibly include chapter 74 reports because paragraph two of the order uses identical text directing the defendant to serve its expert reports by a deadline and, of course, defendants are under no obligation to serve reports on plaintiffs under chapter 74. Lastly, Spectrum notes that...
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