Whitworth v. Blumenthal

• Decision Date: 22 October 2001
• Docket Number: No. 05-97-01691-CV,05-97-01691-CV
• Parties: (Tex.App.-Dallas 2001) DEBBIE WHITWORTH AND GARY WHITWORTH, Appellants v. DR. SCOTT L. BLUMENTHAL, Appellee
• Court: Texas Court of Appeals

Page 393

59 S.W.3d 393 (Tex.App.-Dallas 2001)

DEBBIE WHITWORTH AND GARY WHITWORTH, Appellants v. DR. SCOTT L. BLUMENTHAL, Appellee

No. 05-97-01691-CV

Court of Appeals of Texas, Dallas

October 22, 2001

On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause No. 380-1197-97

Shain Chapman, Law Offices of Shain V.H. Chapman, Mason, Larry Cain, Cain & Chapman, Sherman, for Appellants.

Michael C. Freden, McCue & Lee, P.C., Dallas, David McCue, McCue & Lee, P.C., Addison, for Appellee.

Before the Court En Banc

OPINION

Opinion By Justice O'Neill

This is an appeal from the dismissal of a medical malpractice claim for failure to timely file an expert report pursuant to section 13.01 of the Medical Liability and Insurance Improvement Act. See Tex. Rev. Civ. Stat. Ann. art. 4590i, §13.01 (Vernon Supp. 2001). We must decide whether the trial court abused its discretion in concluding the report appellants Debbie and Gary Whitworth filed was not a good faith effort to meet the Act's definition of an expert report. We also address whether the Whitworths were entitled to additional time to provide an expert report under either subsection 13.01(f) or (g) of the Act. We conclude the report tendered did not constitute a good faith effort to comply with the Act's definition of an expert report. However, we also conclude the Whitworths established they were entitled to a thirty-day grace period to comply with the Act under subsection 13.01(g). Consequently, we reverse the trial court's judgment and remand for further proceedings consistent with this opinion.

Background

The Whitworths sued Dr. Scott L. Blumenthal after he surgically implanted an orthopedic bone screw fixation device or "pedicle screw" into Debbie Whitworth's spine. Among other things, the Whitworths alleged the pedicle screw should not have been used and caused Debbie Whitworth additional health complications. Within 180 days after the Whitworths filed their lawsuit against Blumenthal, they furnished to Blumenthal a document attempting to satisfy the requirements of an expert report in accordance with 13.01(d) of the Act. Eight months later, Blumenthal moved to dismiss with prejudice the Whitworths' claims against him, asserting the Whitworths did not furnish him an expert report within the time allowed by the statute because the document provided was not an "expert report" as defined by the Act.

Before the hearing on Blumenthal's motion, the Whitworths filed a motion under subsections 13.01(f) and (g) of the Act requesting additional time in which to furnish Blumenthal with an expert report in the event the trial court concluded that the report furnished was not an expert report as defined by the statute. Attached to the Whitworths' motion was an affidavit by their attorney asserting he believed the report initially tendered met the requirements and purpose of the Act and setting forth his efforts to obtain a more detailed report after receiving Blumenthal's motion to dismiss. After a hearing, the trial court granted Blumenthal's motion to dismiss.¹ This appeal followed.

Expert Report

Section 13.01(d) of the Act requires a plaintiff asserting a health care liability claim to submit an expert report, along with the expert's curriculum vitae, for each defendant physician or health care provider no later than the 180th day after filing suit. See Tex. Rev. Civ. Stat. Ann. art 4590i, § 13.01(d). The Act defines an expert report as a written report providing "a fair summary of the expert's opinions . . . 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. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(r)(6).

If a claimant furnishes a report to the defendant within the time permitted, a defendant may file a motion challenging the report. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(l). The trial court shall grant the motion only if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the statutory definition of an expert report.² See Tex. Rev. Civ. Stat. Ann. art. 4590i, §13.01(l); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877-78 (Tex. 2001). We review a trial court's ruling on a motion challenging a report under an abuse of discretion standard. See id. at 878. Under this standard, we defer to the trial court's factual determinations but review questions of law de novo. Knie v. Piskun, 23 S.W.3d 455, 461 (Tex. App.--Amarillo 2000, pet. denied).

To constitute a good faith effort under the Act, the expert report must provide, for each defendant, a fair summary of the expert's opinions with respect to each of the requirements set forth in subsection (r)(6), i.e. a standard of care, breach of that standard, and causation. Palacios, 46 S.W.3d 878-79. If a report omits any of the statutory elements, it cannot be a good faith effort. Id. at 879. The report must fulfill the dual purpose of notifying each defendant of the specific conduct called into question and providing support for a trial court to conclude the claims have merit. Id. In determining whether the report represents a good faith effort, the trial court's inquiry is limited to the four corners of the report. Id. at 878.

In his motion to dismiss, Blumenthal argued the Whitworths did not meet the deadline set out in subsection 13.01(d) for filing an expert report because the report filed did not address any of the Act's specified elements as they related to his treatment of Debbie Whitworth. Specifically, he argued the report did not provide a standard of care relative to his conduct, identify any breach by him, or the causal relationship between his alleged breach and Debbie's injuries. After reviewing the report, we agree with Blumenthal.

At the time the Whitworths filed their report, they had pending claims against the hospital, Blumenthal, Blumenthal's practice group, and the pedicle screw manufacturer. The report, however, does not identify any particular defendant to which it applies and instead generally asserts "the health care providers" failed to meet the standard of medical care to which Debbie was entitled. The report also raises the following "serious questions." Noting the increased risk of infection associated with the use of hardware, the report asserts post-operative infection should have been anticipated and appropriate therapy provided. It indicates this was not done and infection occurred, requiring additional treatment and causing unnecessary pain and suffering. The report, however, does not specify the nature of this appropriate therapy, what party was responsible for providing it, or indicate whether it would have prevented infection. Even assuming infection occurred and caused injury, there is no indication that the development of infection was causally connected to a deviation from an identifiable standard of care.

Additionally, the report generally questioned the need to use a pedicle screw in Debbie's case, noting pedicle screws frequently break and cause pain, impairment, and disability in patients in which they are used. The report, however, failed to state how the use of the pedicle screw violated any particular standard of care. The report concludes by stating "the hardware in question and the manner in which it has been utilized has aggravated a pre-existing condition and the patient is more impaired following implantation than before its use."

From the report's conclusory language, it is impossible to determine what standard of care was applicable to Blumenthal, how Blumenthal deviated from the standard of care applicable to him, and whether the alleged deviation is causally connected to Debbie's asserted injuries. The report does not even attempt to define a standard of care applicable to a surgeon with respect to the utilization of pedicle screws. Because the report failed to inform Blumenthal of the specific conduct appellants called into question and failed to provide a basis from which the trial court could conclude the claims had merit, we conclude the report was not an "expert report" as defined by the statute and did not constitute a good faith effort to comply with the statutory definition. See Palacios, 46 S.W.3d at 879.

However, having concluded the report did not constitute a good faith effort to comply with the definition of an expert report does not end our inquiry. The Whitworths assert that even if the report did not constitute a good faith effort, the trial court should have given them additional time to comply with the statute under section 13.01 subsections (f) and (g) before dismissing their case. We will first consider whether the trial court abused its discretion in denying the Whitworths a thirty- day extension under subsection (f).

Section 13.01(f) Extension

Under subsection (f), the trial court is permitted to extend the 180-day period in which to furnish an expert report for an additional thirty days on plaintiff's motion if, after a hearing, the trial court finds good cause to grant the extension. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(f). Section (f) allows for a single extension of no more than thirty days beyond the original 180-day deadline. See Tex. Rev. Civ. Stat. Ann. art. 4590i, §13.01(f); Estrello v. Elboar, 965 S.W.2d 754, 758 (Tex. App.--Fort Worth 1998, no pet.). An extension under this subsection therefore would allow a party to furnish an expert report no later than 210 days of the filing of the lawsuit. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(f); Landry v. Ringer, 44 S.W.3d 271, 274 (Tex. App.--Houston [14th Dist.] 2001, no pet.); Knie, 23 S.W.3d at 462; Roberts v. Med. City Dallas Hosp., 988 S.W.2d 398, 402 (Tex. App.--Texarkana 1999, pet. denied). Because the Whitworths did not file a...