Thoyakulathu v. Brennan

• Decision Date: 27 April 2006
• Docket Number: No. 06,06
• Citation: 192 S.W.3d 849
• Parties: Sam G. THOYAKULATHU, M.D., and Sam T. George, P.A., Appellants v. Francis J. BRENNAN, Individually, et al., Appellees.
• Court: Texas Court of Appeals

192 S.W.3d 849

Sam G. THOYAKULATHU, M.D., and Sam T. George, P.A., Appellants v. Francis J. BRENNAN, Individually, et al., Appellees.

No. 06-05-00070-CV.

Court of Appeals of Texas, Texarkana.

Submitted October 19, 2005.

Decided April 27, 2006.

Diana L. Faust, R. Brent Cooper, Cooper & Scully, PC, Dallas, for appellant.

David M. Stagner, Stagner & Corley, Kenneth W. Roesler, Attorney At Law, Lester W. Vance, Lester W. Vance, PC, Sherman, for appellee.

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

OPINION

Opinion by Chief Justice MORRISS.

By the end of the last day¹ to serve timely expert reports on defendants, Sam G. Thoyakulathu, M.D., and Sam T. George, P.A. (Appellants), health care liability claimant, Francis J. Brennan, had obtained and filed reports, but had not served them on Appellants. Evidence suggests that, on that day, Brennan tried but failed to serve the reports by facsimile transmission. Appellants moved to dismiss Brennan's claims, but the trial court denied the motion and allowed Brennan a thirty-day extension within which to serve the reports. Two orders were entered in connection with the trial court's decision, one granting Brennan a thirty-day extension within which to serve the reports, and the other denying Appellants' motion to dismiss.² We must determine whether the trial court properly denied Appellants' motion to dismiss. We conclude the trial court erred because, as applied to the facts of this case,³ Section 74.351(1) mandates dismissal and (2) is not unconstitutional.

(1) Section 74.351 Mandates Dismissal

Section 74.351(a) of the Texas Civil Practice and Remedies Code establishes the 120-day deadline:

In a health care liability claim, a claimant shall, not later than the 120th day after the date the claim was filed, serve on each party or the party's attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted.... Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived.

TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a). Absent an agreement among the parties for an extension of time to serve the reports, the trial court has no discretion but to dismiss the case with prejudice and to award reasonable attorney's fees and costs of court if the claimant fails to meet this deadline:

(b) 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) (Vernon Supp.2005) (emphasis added).

Section 74.351 provides the only two means of obtaining an extension of the expert report deadline. First, the parties may agree to an extension: "The date for serving the report may be extended by written agreement of the affected parties." TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(a). Second, subsection (c) provides for the only extension available without such an agreement:

If an expert report has not been served within the period specified by Subsection (a) because elements of the report are found deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency. If the claimant does not receive notice of the court's ruling granting the extension until after the 120-day deadline has passed, then the 30-day extension shall run from the date the plaintiff first received the notice.

TEX. CIV. PRAC. & REM.CODE ANN. § 74.351(c) (Vernon Supp.2005). This provision appears to serve as an after-the-fact extension, a second chance at getting the report right. That is, the claimant still must serve the expert report by the 120-day deadline, but, if the trial court determines the timely-filed report is deficient, it may grant an extension in which the claimant may cure any deficiencies in the report.

Since Brennan concedes he failed to serve his reports on Appellants by October 29 and had no agreed extension with the doctors, the only possible statutory relief from mandatory dismissal of his claims against Appellants is found in subsection (c). So, here, the application of Section 74.351(b) is clear: Brennan's claims survive Appellants' motion to dismiss only if Section 74.351(c) applies.

Applying the traditional rules of statutory construction,⁴ we agree with Appellants that, properly construed, Section 74.351 mandates dismissal on these facts, since all parties agree that Brennan failed to serve the requisite reports on Appellants by the deadline. Looking first to the plain and common meaning of Section 74.351(c)'s language in the context of the entire statute, we note that Section 74.351(c) applies only when "an expert report has not been served within" the 120-day period "because elements of the report have been found deficient." TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(c) (emphasis added). This clearly requires a timely-served report that is deficient.

We, therefore, conclude that the subsection (c) extension is available only when a timely-served report does not meet the statutory definition of an "expert report" because it has one or more deficiencies in its contents; subsection (c) does not apply to a report not served by the deadline. See Manor Care Health Servs. v. Ragan, 187 S.W.3d 556, 560

(Tex.App.-Houston [14th Dist.] no pet. h.); Mokkala, 178 S.W.3d at 74. If a timely-served report is later found to be inadequate, then the trial court may, in its discretion, grant a thirty-day extension to cure the deficiencies. This construction permits each part of the statute to be meaningful in light of the other portions of the statute.

This construction is also consistent with the legislative history of the 2003 amendments to former Article 4590i. As the Houston-Fourteenth Court points out, Representative Joe Nixon, Chair of the House Committee on Civil Practices, presented House Bill 4 and explained that, if the bill were passed, it meant that, if an attorney missed the deadline for the expert report, the plaintiff would be barred from prosecuting that claim. Mokkala, 178 S.W.3d at 74 (including extensive discussion of legislative background of Section 74.351). An extensive article written on the amendments also takes the position that Section 74.351(c) does not apply to this situation: "No extension is available for a failure to file any report." Michael S. Hull, et al., House Bill 4 and Proposition 12: An Analysis with Legislative History, 36 TEX. TECH L.REV. 1, 207 n. 230 (Supp.2005).

The facts before us are not such as would authorize an extension under Section 74.351(c). That being the case, the trial court was bound by Section 74.351(b)'s mandatory dismissal provision. The provisions leave no room for a construction other than the one proposed by Appellants. Dismissal is required, unless the statute is unconstitutional.

(2) Section 74.351 Is Not Unconstitutional

Brennan claims that Section 74.351, as applied, denies him due process and due course⁵ of law. Although arising in an unorthodox manner, Brennan's constitutional challenge appears to have been properly before the trial court.⁶ Additionally, Appellants did not move to strike or otherwise object to the amendments raising the constitutional issues.

The United States Constitution provides that "[n]o State ... shall deprive any person of life, liberty, or property, without due process of law." U.S. CONST. amend. XIV, § 1. These words "require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case." Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). A restriction on litigants' use of established adjudicatory procedures denies due process when such restriction is "the equivalent of denying them an opportunity to be heard upon their claimed right[s]." Boddie v. Connecticut, 401 U.S. 371, 380, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).

A cause of action is a species of property protected by the Fourteenth Amendment's Due Process Clause. See Logan, 455 U.S. at 428,

102 S.Ct. 1148. Therefore, statutory procedures that deprive someone of a statutory right must be held up to constitutional analysis. Id. at 432, 102 S.Ct. 1148. Due process requires that state procedures must provide proper procedural safeguards before a claimant's property interest is destroyed. Id.; Bank of Am. Nat'l Trust & Sav. Ass'n v. Dallas Cent. Appraisal Dist., 765 S.W.2d 451, 453 (Tex.App.-Dallas 1988, writ denied). We must examine Section 74.351 for the presence or absence of those "proper procedural safeguards."

When dealing in the context of restrictions placed on health care liability claims, we operate with two general principles in mind. First, "there are constitutional limitations upon the power of courts... to dismiss an action without affording a party the opportunity for a hearing on the merits of his [or her] cause." Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex.2003) (quoting TransAmerican Nat. Gas Corp. v. Powell, 811 S.W.2d 913, 917-18 (Tex. 1991)). Second, the filing of a frivolous lawsuit can be misconduct subject to sanction. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001).

We begin our analysis...