Walker v. Gutierrez

• Decision Date: 19 June 2003
• Docket Number: No. 01-0841.,01-0841.
• Citation: 111 S.W.3d 56
• Parties: Geoffrey S. WALKER, M.D., Harry F. Goss, Jr., M.D., Renal Physicians of North Texas, L.C., Mid-Cities Nephrology Association, P.A., d/b/a Irving Dialysis Center, and Mark Meiches, M.D., Petitioners, v. Bertha GUTIERREZ, a/k/a Beatrice Bargas, and Pedro Gutierrez, individually and as Representatives of the Estate of Anna Gutierrez, Deceased, Respondents.
• Court: Texas Supreme Court

111 S.W.3d 56

Geoffrey S. WALKER, M.D., Harry F. Goss, Jr., M.D., Renal Physicians of North Texas, L.C., Mid-Cities Nephrology Association, P.A., d/b/a Irving Dialysis Center, and Mark Meiches, M.D., Petitioners, v. Bertha GUTIERREZ, a/k/a Beatrice Bargas, and Pedro Gutierrez, individually and as Representatives of the Estate of Anna Gutierrez, Deceased, Respondents.

No. 01-0841.

Supreme Court of Texas.

Argued October 23, 2002.

Decided June 19, 2003.

Rehearing Denied August 21, 2003.

Diana L. Faust, lead appellate counsel, Brent R. Cooper, co-appellate counsel, Cooper & Scully, P.C., Dallas, for petitioners Geoffrey S. Walker, M.D., Harry F. Goss, Jr., Renal Physicians of North Texas, L.C., Mid-Cities Nephrology Association, P.A., d/b/a Irving Dialysis Center and Mark Meiches, M.D.

Charles G. Bell, Gwinn & Roby, Dallas, co-appellate counsel and trial counsel for petitioner Mark Meiches, M.D.

John A. Scully, lead trial counsel, Bruce W. Steckler, co-trial counsel, Cooper & Scully, Dallas, for defendants Geoffrey S. Walker, M.D., Harry F. Goss, Jr., Renal Physicians of North Texas, L.C., Mid-Cities Nephrology Association, P.A., d/b/a Irving Dialysis Center.

James W. Mills, Mills Law Firm, Charles W. McGarry, Law Office of Charles McGarry, Dallas, for respondents.

Justice JEFFERSON delivered the opinion of the Court.

In this medical malpractice case, we must decide: (1) whether the grace period contemplated by section 13.01(g) of the Medical Liability and Insurance Improvement Act, Tex.Rev.Civ. Stat. art. 4590i, applies to inadequate, but timely filed, expert reports, (2) the standard of review for a trial court's ruling on a section 13.01(g) grace period, and (3) the circumstances under which a mistake of law will negate a finding of intentional conduct or conscious indifference under section 13.01(g). We hold that the section 13.01(g) grace period is available to cure timely filed but inadequate reports and that a trial court's ruling on a request for such a grace period is reviewed under an abuse of discretion standard. We also hold that, while some mistakes of law may negate a finding of intentional conduct or conscious indifference, the trial court did not abuse its discretion in denying the request for a section 13.01(g) grace period in this case because the failure to file an adequate expert report was not the result of such a mistake. Accordingly, we reverse the court of appeals' judgment and dismiss with prejudice the respondents' claims.

I Background

On October 9, 1998, respondents Bertha Gutierrez, a/k/a Beatrice Bargas, and Pedro Gutierrez, individually and as representatives of the estate of Anna Gutierrez, deceased (collectively, the "Gutierrezes"), filed a health care liability claim against Geoffrey S. Walker, M.D., Harry F. Goss, Jr., M.D., Renal Physicians of North Texas, L.C., Mid-Cities Nephrology Association, P.A. d/b/a Irving Dialysis Center, and Mark Meiches, M.D. (collectively, "petitioners"). The Gutierrezes alleged that the petitioners' negligent medical care and treatment of Bertha Gutierrez, a renal dialysis patient, proximately caused the premature birth and subsequent death of her infant, Anna Gutierrez, and injuries and damages to the Gutierrezes.

On January 6, 1999, having filed neither a cash bond nor an expert report as required by section 13.01(a), Tex.Rev.Civ. Stat. art. 4590i, the Gutierrezes filed a motion for extension of time to file expert reports "pursuant to Sec. 13.01 of the Texas Medical Liability and Insurance Improvement Act." The Gutierrezes asserted that the extension was necessary so that they could depose the defendant doctors. The petitioners opposed the motion, noting that section 13.01(a) required that a claimant file a report or post a $5,000.00 cost bond not later than the 90th day after the claim was filed. The petitioners' response cited and summarized section 13.01(r)(6), which outlines the requirements for an adequate expert report. On January 14, 1999, the trial court granted the Gutierrezes' motion for extension of time and ordered them to file their expert reports "on or before 30 days after January 20, 1999."

On February 18, 1999, the Gutierrezes filed two expert reports "for the sole purpose of complying with" article 4590i. The first, a report from Dr. Mario Assouad, a nephrologist, summarized Bertha Gutierrez's medical records and concluded "that the treatment given to Ms. Gutierrez by Doctors Walker, Goss and Meiches represents a significant deviation from standard medical care. Furthermore, such negligence is a proximate cause of Anna Gutierrez's death." The second, signed by Dr. Dave E. David, an obstetrician/gynecologist, summarized Gutierrez's medical records and reached the same conclusion: "both Dr. Walker and Dr. Goss' [sic] treatment of Ms. Gutierrez deviated from the standard of care and that their negligent conduct is a proximate cause of Anna Gutierrez's death. In addition, Dr. Meiches' [sic] treatment of Ms. Gutierrez also deviated from the standard of care and this deviation was a proximate cause of the baby's death."

On April 26, the petitioners moved to dismiss the Gutierrezes' claims for their failure to provide expert reports that represented "good faith effort[s]" to comply with section 13.01(r)(6) of article 4590i. The Gutierrezes responded, asserting that the reports complied with the statute and that, if they did not, the Gutierrezes were entitled to a thirty-day grace period under section 13.01(g). The Gutierrezes argued that "plaintiffs' attorney at all times believed that the plaintiffs' original expert reports satisfied the requirements of section 13.01(d)," and that "[t]his alone has been held sufficient to require granting the grace period."

At the hearing on the motion to dismiss, James William Mills, III, the Gutierrezes' attorney, testified that he knew that the Gutierrezes' claims were governed by article 4590i and that he was familiar with the statute and "basically" aware of its requirements for expert reports. Mills acknowledged that the petitioners' response to the Gutierrezes' motion for extension of time cited section 13.01(r)(6)'s expert report requirements, and he was "sure" that he read the response at the time it was filed. Mills told each expert what he believed the reports had to contain. When he received the reports from the experts, Mills did not compare them with the statute to see if the reports complied with the statutory requirements. Mills admitted that the reports did not comply with section 13.01(r)(6): "what was missing [from the reports] was the standard and the violation of the standard." At the hearing, Mills also testified that he understood that the reports needed to show that each particular defendant had a duty, that there was a breach of that duty, and that due to the breach, there was an injury. The trial court granted the motion to dismiss and denied the Gutierrezes' motion for reconsideration.¹

The court of appeals reversed and remanded, holding that the trial court abused its discretion in denying the Gutierrezes' request for a thirty-day grace period in which to file an adequate expert report because there was "uncontroverted evidence" that the failure to timely file a sufficient report was due to mistake and was not intentional or the result of conscious indifference. 50 S.W.3d 61. The court held that, while the reports were deficient, there was no evidence that the petitioners notified the Gutierrezes of those deficiencies or that the Gutierrezes were aware of the deficiencies. Id. at 66. Moreover, the court held that Mills was mistaken as to the necessary contents of an expert report, and the petitioners—while they referred to the section 13.01(r)(6) definition of an expert report—"made no mention of the requirement that the report set forth the expert's opinion as to the standard of care, how the defendant failed to meet the standard, and the causal relationship between the failure and the injury, harm, or damages claimed." Id. at 65.

We granted the petition for review to determine the extent to which a mistake of law will negate a finding of intentional conduct or conscious indifference under section 13.01(g). 45 Tex. Sup.Ct. J. 844 (June 20, 2002).

II

Applicability of Section 13.01(g)

At the outset, we must decide whether section 13.01(g) may be used to cure a timely but inadequate expert report. Although the parties apparently agree that it can, we have never addressed the issue. The courts of appeals that have discussed the issue—including the court of appeals in this case—have uniformly held or implicitly recognized that the section 13.01(g) grace period applies to inadequate but timely reports. Hernandez v. Piziak, No. 03-02-00544-CV, 2003 WL 248329, *2, 2003 Tex.App. LEXIS 1076, *5-*6 (Tex.App.-Austin Feb. 6, 2003, pet. filed) (memorandum opinion); Daniel v. Beck, No. 12-01-00328-CV 2002 WL 31323498, *3, 2002 Tex.App. LEXIS 7485, *8-*10 (Tex.App.-Tyler Oct.9, 2002, no pet.) (not designated for publication); In re Morris, 93 S.W.3d 388, 391 (Tex.App.-Amarillo 2002, orig. proceeding); Whitworth v. Blumenthal, 59 S.W.3d 393, 400 (Tex.App.-Dallas 2001, pet. dism'd by agr.); Hightower v. Saxton, 54 S.W.3d 380, 385 (Tex.App.-Waco 2001, no pet.); Richburg v. Wolf, 48 S.W.3d 375, 378-79 (Tex.App.-Eastland 2001, no pet.); DeLeon v. Vela, 70 S.W.3d 194, 200-01 (Tex.App.-San Antonio 2001, pet. denied); Rittmer v. Garza, 65 S.W.3d 718, 724 (Tex.App.-Houston [14th Dist.] 2001, no pet.); In re Collom & Carney Clinic Ass'n, 62 S.W.3d 924, 930 (Tex.App.-Texarkana 2001, orig. proceeding); Gutierrez v. Walker, 50 S.W.3d 61, 65-66 (Tex.App.-Corpus Christi 2001, pet. granted).

We agree that the section 13.01(g) grace period applies to inadequate but timely filed reports. Section 13.01(g) provides:

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 ...