Tenet Hospitals, Ltd. v. Gomez

• Court: Texas Court of Appeals
• Writing for the Court: Ann Crawford McClure
• Citation: Tenet Hospitals, Ltd. v. Gomez, 276 S.W.3d 9 (Tex. App. 2008)
• Decision Date: 24 January 2008
• Docket Number: No. 08-07-00003-CV.,08-07-00003-CV.
• Parties: TENET HOSPITALS, LTD., a Texas Limited Partnership d/b/a Sierra Medical Center, Appellant, v. Christina GOMEZ, Individually and as Personal Representative of the Estate of Lorenzo Gomez, and all Wrongful Death Beneficiaries, and as Next Friend of Savannah Nichole Gomez, Breann Tyara Gomez, Appellee.

276 S.W.3d 9

TENET HOSPITALS, LTD., a Texas Limited Partnership d/b/a Sierra Medical Center, Appellant, v. Christina GOMEZ, Individually and as Personal Representative of the Estate of Lorenzo Gomez, and all Wrongful Death Beneficiaries, and as Next Friend of Savannah Nichole Gomez, Breann Tyara Gomez, Appellee.

No. 08-07-00003-CV.

Court of Appeals of Texas, El Paso.

January 24, 2008.

Yvonne K. Puig, Fulbright & Jaworski L.L.P., Austin, TX, for Appellant.

John Mundie, Miranda & Boyaki, El Paso, TX, for Appellee.

Before McCLURE, GOMEZ, JJ., and BARAJAS, C.J. (Ret.).

OPINION

ANN CRAWFORD McCLURE, Justice.

This is a medical malpractice case in which the trial court denied the hospital's motion to dismiss and granted the plaintiffs a thirty-day extension of time to cure deficient expert reports. At issue is whether the hospital has a right of interlocutory appeal under Chapter 74 of the Medical Liability and Insurance Improvement Act. Because an interlocutory appeal is unavailable, we dismiss the appeal for want of jurisdiction.¹

FACTUAL SUMMARY

On November 7, 2003, 38-year-old Lorenzo Gomez was conducting tactical exercises when he felt dizzy, developed a headache, had muscle cramps, became nauseous, and began vomiting. He was taken by ambulance to the emergency room of Sierra Medical Center where he was initially examined and treated by Dr. Sergio Ibarra. Dr. Baker was consulted and he admitted Lorenzo to the hospital. Lorenzo was not evaluated by a physician until 6:35 a.m. the next morning. At that time, a nurse found him unresponsive and not breathing. A "Code Blue" was called, but resuscitation efforts were unsuccessful and Lorenzo was pronounced dead. An autopsy revealed the cause of death to be acute tubular necrosis of the kidneys due to rhabdomyolysis.²

On October 31, 2005, Christina Gomez, individually and as the personal representative of the other plaintiffs, filed suit against Tenet Hospitals, Ltd., a Texas Limited Partnership d/b/a Sierra Medical Center ("Sierra"), Dr. Ronald Baker, and Dr. Sergio Ibarra. She timely served Sierra with the expert reports and curriculum vitae of Barton W. Butterbaugh, M.D., James Bradley, M.D., and Lennie Medina, R.N.

Sierra timely filed Chapter 74 objections to the sufficiency of the Bradley and Butterbaugh reports as well as a motion to dismiss. It filed a separate objection to the qualifications of Nurse Medina and the sufficiency of her report. In response, Gomez argued that the three reports constituted an objective good faith effort to comply with Section 74.351 and she requested a thirty-day extension if the trial court determined the reports were deficient.

Following a hearing, the trial court denied Sierra's objections and its motion to dismiss. By separate order, the court found elements of the reports deficient and granted a thirty-day extension to cure deficiencies.

INTERLOCUTORY JURISDICTION

Sierra contends we have interlocutory jurisdiction despite the fact that the trial court granted a thirty-day extension. This issue has been recently addressed by the Texas Supreme Court.

The Statute

In a healthcare liability claim, a claimant shall, not later than the 120th day after the date the original petition was filed, serve on each party or the party's attorney one or more expert reports, with curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted. TEX.CIV.PRAC. & REM.CODE ANN. § 74.351(a)(Vernon Supp.2007).

If, as to a defendant physician or health care provider, an expert report has not been served within the period specified by subsection (a), the court, on the motion of the affected physician or health care provider, shall, subject to subsection (c), enter an order that:

(1) awards to the affected physician or health care provider reasonable attorney's fees and costs of court incurred by the physician or health care provider; and

(2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.

TEX.CIV.PRAC. & REM.CODE ANN. § 74.351(b). If an expert report has not been timely served because elements of the report are deficient, the court may grant one thirty-day extension to the claimant in order to cure the deficiency. TEX.CIV.PRAC. & REM. CODE ANN. § 74.351(c).

An expert report is defined 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." TEX.CIV.PRAC. & REM.CODE ANN. § 74.351(r)(6). A court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6). TEX.CIV.PRAC. & REM. CODE ANN. § 74.351(l). A defendant may pursue an interlocutory appeal from an order that denies all or part of the relief sought by a motion under Section 74.351(b), except that an appeal may not taken from an order granting an extension under Section 74.351(c). See TEX.CIV.PRAC. & REM.CODE ANN. § 51.014(a)(9)(Vernon Supp.2007).

The Argument

Sierra contends the expert reports here constitute no report at all because neither Butterbaugh report nor Bradley's report mentions Sierra in any substantive way, sets forth the applicable standard of care as to Sierra, discusses the ways Sierra breached the standard of care, or provides a causal connection between Sierra and the decedent's injuries. Sierra also maintains that Medina's report fails to meet the statutory requirements because she cannot offer an expert opinion as to causation, her opinion as to the standard of care is predicated upon the assumption that Sierra's nurses should have made their own medical diagnoses, and she is not qualified to be an expert.

The Supreme Court Weighs In

On November 30, 2007, the Supreme Court issued its opinion in Ogletree and Heart Hospital of Austin v. Matthews, 262 S.W.3d 316 (Tex.2007). There, the court specifically considered whether a defendant may immediately appeal when a trial court both denies a motion to dismiss and grants the plaintiff a thirty-day extension to cure expert reports that although served timely, were deficient. The plaintiffs filed suit against Dr. Ogletree, a urologist, and Heart Hospital of Austin. They timely filed expert reports from a radiologist and three nurses. Dr. Ogletree objected that a radiologist was incapable of offering an opinion on a urologist's standard of care and that no curriculum vitae had been appended. He also objected to the nurses' reports. The hospital did not object within the statutory time frame but filed a motion to dismiss nonetheless. It claimed precisely what Sierra claims here—that because the nurses' reports lacked a physician's opinion on causation, they were not merely deficient, but nonexistent.

The trial court determined that the radiologist's report was deficient, but it denied Dr. Ogletree's motion and granted a thirty-day extension. It also denied the...