Yilmaz v. McGregor

• Decision Date: 17 July 2008
• Docket Number: No. 01-07-01116-CV.,01-07-01116-CV.
• Citation: 265 S.W.3d 631
• Parties: Salih YILMAZ, M.D., Appellant, v. Eula McGREGOR, Tommie James, Charles James and Erma Ruth Ervin, as Heirs of the Estate of Louis D. James, deceased, and Lachunda James, Appellees.
• Court: Texas Court of Appeals

265 S.W.3d 631

Salih YILMAZ, M.D., Appellant, v. Eula McGREGOR, Tommie James, Charles James and Erma Ruth Ervin, as Heirs of the Estate of Louis D. James, deceased, and Lachunda James, Appellees.

No. 01-07-01116-CV.

Court of Appeals of Texas, Houston (1st Dist.).

July 17, 2008.

Rehearing Overruled August 13, 2008.

Jennifer D. Cully, Michael C. Feehan, Kacal, Adams & Law, P.C., Houston, TX, for Appellant.

Monica C. Vaughan, Charles R. Houssiere III, Houssiere, Durant & Houssiere, L.L.P., Houston, TX, for Appellees.

Panel consists of Chief Justice RADACK and Justices KEYES and HIGLEY.

OPINION

LAURA CARTER HIGLEY, Justice.

Appellant, Salih Yilmaz, M.D., files this interlocutory appeal from the trial court's denial of his motion to dismiss a medical malpractice lawsuit brought by appellees, Eula McGregor, Tommie James, Charles James, and Erma Ruth Ervin, as heirs of the Estate of Louis D. James, deceased, and Lachunda James.¹

In two issues, appellant contends that the trial court erred by denying his motion to dismiss appellees' claim, under Texas Civil Practice and Remedies Code section 74.351,² because appellees' expert reports were (1) untimely served and (2) substantively insufficient.

We reverse and remand.

Background

Appellant was a physician in Navasota, Texas, who provided medical care to patients at a nursing home, Navasota Nursing and Rehabilitation, L.P. ("NNR"). Louis D. James was a 76-year-old patient of appellant and a resident at NNR.

On the night of December 25, 2005,³ James was allowed to wander outside into the cold. When he was found, NNR personnel contacted appellant, who instructed that James be transported to the hospital. At the hospital, James presented with a body temperature of 82 degrees. James was described as emitting a "horrific odor," having dried feces on his body and flies swarming about his person, and displaying malnutrition. Medical personnel were not able to revive him, and James subsequently died.

On January 25, 2006, appellant closed his medical practice, which was located at 1225 Leake Street in Navasota, Texas. On January 31, 2006, appellant's medical license was suspended by the Texas Medical Board for reasons unrelated to the instant suit. On April 17, 2006, appellant moved to Turkey.

On July 3, 2006, in his annual statement to the Secretary of State, appellant changed the address of the principal office of his professional association from "1225 Leake St.—Navasota Prof. Bldg., Navasota, TX 77868" ("Leake Street address"), to "P.O. Box 302, Navasota, TX 77868."

On December 7, 2006, appellees served, by certified mail, a Notice of Medical Liability Claim⁴ to appellant at the Leake Street address. The notice was returned marked "unclaimed."

On March 9, 2007, appellees filed their original petition, alleging that appellant breached the standard of care in his treatment of James and that this breach was the proximate cause of James's death. On May 9, 2007, appellees attempted to serve appellant with process at the Leake Street address. The officer's return states, "Unserved. ... No longer works at this address." On May 21, 2007, appellees attempted service at appellant's home at 1015 East Washington Avenue, Navasota, Texas, which was also returned unserved and with the notation, "No longer lives in Grimes Co." Appellees made no further attempts to serve appellant with process until they sought substituted service through the Secretary of State on August 13, 2007.

In the interim, on July 6, 2007, which was one day prior to appellees' statutory deadline for filing the requisite expert reports,⁵ appellees allegedly served appellant with their expert reports. On the certificate of service appended to the expert reports, appellees' attorney, Monica Vaughan, attested that she served appellant with the report at the Leake Street address. In addition, on this same day, appellees filed an amended petition, to which they appended a certificate of service by Vaughan, attesting that she had served appellant with the amended petition at the Leake Street address.

On August 13, 2007, appellees sought service of process through the Secretary of State, requesting service of their "original petition" on appellant at the Leake Street address. Appellees did not include a copy of their expert reports. There is not a Whitney certificate in the record indicating that process was forwarded to appellant.⁶ On September 25, 2007, however, appellant answered the lawsuit.

On October 12, 2007, appellant moved to dismiss the suit on the basis that appellees had failed to timely serve him with an expert report and therefore the trial court was required to dismiss the suit.⁷ Specifically, appellant argued that appellees filed their expert reports at the Leake Street address, a "known wrong address," at a time that appellant was not a party to the suit, not having been served with the suit until August 21, 2007. After appellant was served with the suit, he obtained a copy of the expert reports on his own from the trial court. Appellant then filed a second motion to dismiss, alleging in the alternative that the expert reports were substantively deficient.

On November 7, 2007, in their response to the motion to dismiss, appellees asserted that they complied with section 74.351 when they attempted service at appellant's last known addresses and that service of the expert reports should be imputed to appellant. Appellees appended to their response copies of the expert reports. According to appellant, appellees' service of the response on his attorney constituted the first service of the expert reports on appellant.

On the same day, appellees also served on appellant's attorney an amended certificate of service, in which Vaughan attested that, in addition to having served appellant with the expert reports via certified mail at the Leake Street address back on July 6, 2007, she had also on that day served the expert reports to appellant via certified mail at "P.O. Box 302, Navasota, TX 77868," the address that appellant had on file with the Secretary of State.

Also on the same day, by affidavit, Vaughan's legal assistant Wanda Carte, attested that she served the expert reports to appellant, via certified mail, at the Leake Street address and to "P O Box 302." The record shows certified mail forms bearing handwritten notations that a mailing occurred to the Leake Street address and to "P.O. Box 302."⁸ The forms lack postmarks and any indication that postage was paid. However, the record includes printouts from the United State Postal Service website showing that an item bearing the same tracking number as shown on each certified mail form was "Delivered" to "Navasota, Texas, 77868," on July 10, 2007. There is no indication of to whom it was given or of who signed for the items at each address. There are no return receipts concerning these mailings in the record. Appellant attested by affidavit that he never received the expert reports in July 2007.

After a hearing, the trial court denied appellant's motions to dismiss. The trial court held that appellant had been properly served, that appellant had waived his right to object to the expert reports, and that, in the alternative, the expert reports were sufficient. This appeal ensued.

Standard of Review

We review a trial court's ruling on a motion to dismiss under section 74.351(b) for an abuse of discretion. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex.2001); Univ. of Tex. Health Sci. Ctr. at Houston v. Gutierrez, 237 S.W.3d 869, 871 (Tex.App.-Houston [1st Dist.] 2007, pet. denied). A trial court abuses its discretion when it "reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." In re Bass, 113 S.W.3d 735, 738 (Tex.2003). "A trial court does not abuse its discretion merely because it decides a discretionary matter differently than an appellate court would in a similar circumstance." Gray v. CHCA Bayshore L.P., 189 S.W.3d 855, 858 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)). When reviewing discretionary matters, we may not substitute our own judgment for that of the trial court. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992).

The ruling in this case requires us to interpret a statute. Statutory interpretation is a question of law. In re Canales, 52 S.W.3d 698, 701 (Tex.2001). Questions of law will be reviewed de novo. See Gutierrez, 237 S.W.3d at 871.

Timely Service of Expert Reports

In his first issue, appellant contends that the trial court erred by denying his motion to dismiss appellees' suit because appellees did not timely serve him with an expert report, as required by Texas Civil Practice and Remedies Code section 74.351. See TEX. CIV. PRAC. & REM.CODE ANN. § 74.351.

Pursuant to section 74.351, a plaintiff in a health-care-liability suit must, "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 a curriculum vitae of each expert ... for each physician or health care provider against whom a liability claim is asserted." See id. § 74.351(a). If, as to a defendant physician, an expert report has not been served within the 120-day period, the trial court must, on the motion of the affected physician and subject to subsection (c),⁹ enter an order dismissing the claim with prejudice and awarding to the physician reasonable attorney's fees and costs. Id. § 74.351(b). Each defendant physician 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 the report was served, otherwise all objections are waived. Id. § 74.351(a).

Here, because appellees filed their lawsuit on March 9, 2007, they were required to serve one or more expert reports on appellant or appellant's attorney by ...