Taylor v. Corr. Med. Servs., Inc., 01-11-00836-CV

Decision Date21 May 2013
Docket NumberNO. 01-11-00836-CV,01-11-00836-CV
PartiesWALTER EARL TAYLOR, Appellant v. CORRECTIONAL MEDICAL SERVICES, INC. AND OCTAVIA MCCOY, Appellees
CourtCourt of Appeals of Texas

WALTER EARL TAYLOR, Appellant
v.
CORRECTIONAL MEDICAL SERVICES, INC.
AND OCTAVIA MCCOY, Appellees

NO. 01-11-00836-CV

Court of Appeals For The First District of Texas

Opinion issued May 21, 2013


On Appeal from the 10th District Court
Galveston County, Texas
Trial Court Case No. 10-CV-4108

MEMORANDUM OPINION

Appellant, Walter Earl Taylor, sued appellees, Correctional Medical Services, Inc. and Octavia McCoy (collectively, "Correctional Medical"), for medical malpractice pursuant to Texas Civil Practice and Remedies Code Chapter

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74. Taylor failed to serve Correctional Medical with an expert report, and Correctional Medical moved to dismiss Taylor's claim for failure to serve a timely expert report. The trial court granted Correctional Medical's motion to dismiss. In one issue, Taylor argues that the trial court abused its discretion in granting the motion to dismiss.

We affirm.

Background

In November 2010, Taylor sued Correctional Medical for medical malpractice. He alleged that, while he was being held in the Galveston County Jail, he was given another prisoner's medication, which caused him to pass out. On December 23, 2010, Taylor moved the trial court to appoint an expert witness. In January 2011, the parties entered into an agreed discovery and docket control order, providing October 20, 2011 as the date by which "experts for all Plaintiffs shall be designated" and November 21, 2011 as the date by which "experts for all other parties shall be designated." Taylor failed to file an expert report.

More than 120 days after Taylor had filed his petition, Correctional Medical moved to dismiss his claim based on his failure to file the required expert report. At the hearing on Correctional Medical's motion to dismiss, the trial court informed Taylor that it would "continue" its ruling for thirty days to allow Taylor time to file the expert report. Thirty days later, Correctional Medical moved the

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trial court to rule on its motion to dismiss, and the trial court granted the motion to dismiss. This appeal followed.

Standard of Review

Texas Civil Practice and Remedies Code section 74.351 requires a claimant in a health care liability claim to file an expert report and serve it on each party not later than the 120th day after the petition was filed. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (Vernon 2011). If the plaintiff fails to serve an expert report, the trial court must, on the motion of the affected health care provider, dismiss the plaintiff's claim with prejudice. Id. § 74.351(b); Heriberto Sedeno, P.A. v. Mijares, 333 S.W.3d 815, 818 (Tex. App.—Houston [1st Dist.] 2010, no pet.).

We review a trial court's ruling on a section 74.351 motion to dismiss for an abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001) (construing predecessor statute). A trial court abuses its discretion if it acts arbitrarily or unreasonably or without reference to any guiding rules or principles. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam).

Expert Report Requirement

Taylor asserts several arguments in support of his contention that the trial court abused its discretion in dismissing his case. He argues that: (1) we can dismiss the trial court's judgment because the trial court did not file findings of

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fact and conclusions of law; (2) Texas Rule of Civil Procedure 165a allows a court to reinstate a case upon a finding that the party's failure was due to accident or mistake; (3) the trial court "should have granted or at least had a hearing on [Taylor's] motion to appoint an expert witness at county expense" because Taylor is indigent; (4) the parties signed an agreed docket control order that extended the date for serving the expert report; and (5) section 74.351 is unconstitutional as applied to him because it has prevented him, an indigent inmate, from pursuing his claims and thus raises "due process concerns" and violates the Texas Constitution's open courts provision.

A. Failure to File Findings of Fact and Conclusions of Law

Taylor argues, "Since the trial court did not file findings and conclusions, the Court of Appeals can dismiss a judgment, then use any legal theory that finds support in the evidence." However, we do not dismiss a judgment for a trial court's failure to file findings or conclusions. Rather, in a case like this in which there are no findings of fact or conclusions of law from the trial court, a judgment dismissing a health care liability claim under section 74.351 will be upheld on any legal theory supported by the record, and findings necessary to that holding will be implied. Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766 (Tex. 2011) (per curiam).

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B. Rule of Civil Procedure 165a

Taylor further argues that Rule of Civil Procedure 165a requires a court to reinstate a case upon finding "that the failure of the party or his attorney was not intentional or the result of conscious indifference, but was due to an accident or mistake or that the failure has been otherwise reasonably explained." He argues that, as an inmate who is not knowledgeable about the law, he should have been "provided an opportunity after being informed that he needed an expert witness to remedy that mistake."

First, we observe that Rule 165a applies to dismissals for want of prosecution and is not applicable in Taylor's case. See TEX. R. CIV. P. 165a. Furthermore, parties, like Taylor, who appear pro se must comply with all applicable laws and rules of procedure and are held to the same standards as are licensed...

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