Rose Olmos Herrera v. Muhammad Aslam Malik, M.D. and Surgical Consultants of Fort Worth, P.L.L.C.--Appeal from 153rd District Court of Tarrant County

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Laws-info.com » Cases » Texas » 2nd District Court of Appeals » 2008 » Rose Olmos Herrera v. Muhammad Aslam Malik, M.D. and Surgical Consultants of Fort Worth, P.L.L.C.--Appeal from 153rd District Court of Tarrant County

State: Texas

Court: Criminal Court of Appeals

Docket No: 02-06-00406-CV

Case Date: 08/07/2008

Plaintiff: DARNELL HARTSFIELD

Defendant: THE STATE OF TEXAS (Other)

Preview:George E. Mimari, M.D. v. Leroy Johnson and Mary Lou Johnson--Appeal from 131st Judicial District Court of Bexar County
MEMORANDUM OPINION No. 04-06-00454-CV George E. MIMARI, M.D., Appellant v. Leroy JOHNSON and Mary Lou Johnson, Appellees From the 131st Judicial District Court, Bexar County, Texas Trial Court No. 2004-CI-13562 Honorable Richard E. Price, Judge Presiding Opinion by: Alma L. L pez, Chief Justice Sitting: Alma L. L pez, Chief Justice Phylis J. Speedlin, Justice Rebecca Simmons, Justice Delivered and Filed: November 8, 2006 REVERSED AND REMANDED George E. Mimari, M.D. appeals the trial court's order denying his motion to dismiss filed pursuant to section 74.351(b) of the Texas Civil Practice and Remedies Code. Mimari contends that the trial court abused its discretion in denying his motion because: (1) a letter sent by plaintiffs' counsel did not qualify as an expert report; and (2) the application for a legislative continuance filed after the deadline for filing the expert report had passed did not revive or extend the deadline. Because we hold that the Johnsons failed to timely file an expert report, we reverse the trial court's order and remand the cause to the trial court with instructions. Background

In his motion to dismiss, Mimari asserted that the plaintiffs, Leroy Johnson and Mary Lou Johnson, failed to file an expert report within 120 days after they filed the underlying lawsuit. The Johnsons responded that either: (1) a letter sent by their lawyer that incorporated language from an expert report was a timely filed expert report; or (2) the legislative continuance granted to their attorney extended the deadline for filing the expert report; accordingly, an expert report filed on May 31, 2005, was timely. The trial court denied the motion "as to timeliness," stating that it was making "no ruling as to [the] sufficiency" of the report. The trial court's order gave Mimari twenty-one days to "serve upon the Plaintiffs his objections, if any, as provided under Texas Civil Practice and Remedies Code 74.251(a)."

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Mimari filed a motion to reconsider the ruling and for clarification. Mimari requested that the trial court clarify whether the trial court considered the lawyer's letter or the expert report filed on May 31, 2005, as the report that was timely filed. The trial court denied the motion without further clarification. Discussion

We review the trial court's order denying Mimari's motion to dismiss under an abuse of discretion standard of review. See American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Emeritus Corp. v. Highsmith, No. 04-05-00551-CV, 2006 WL 1466542, at *4 (Tex. App.--San Antonio May 31, 2006, no pet. h.). In responding to the motion to dismiss, the Johnsons initially relied on a letter sent by their attorney to Mimari's insurance company. (1) The letter is written on the attorney's stationary and is signed by the attorney. Although the Johnsons claim that the letter was based on an expert report provided by John M. Beradis, M.D., and the report subsequently filed on May 31, 2005, from Dr. Beradis contains language that was included in the letter verbatim, the letter does not refer to Dr. Beradis or his qualifications. In the opening paragraph, the letter states, "I welcome the opportunity to describe with specificity Mr. Johnson's complaints." The letter concludes, "I trust this information will prove useful to you in evaluating this claim." An "expert report" means "a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding the 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) (Vernon Supp. 2006) (emphasis added). In order for a document to be considered an "expert report," the document itself must illustrate that the person rendering the opinion therein is a qualified expert. See Hansen v. Starr, 123 S.W.3d 13, 19 (Tex. App.--Dallas 2003, pet. denied); Chisholm v. Maron, 63 S.W.3d 903, 907 (Tex. App.--Amarillo 2001, no pet.). The letter in this case is similar to the anonymous report the plaintiff relied on in Schorp v. Baptist Memorial Health Sys., 5 S.W.3d 727, 730 (Tex. App.--San Antonio 1999, no pet.). InSchorp, the plaintiff filed a report purportedly written by a physician; however, the report failed to indicate the name of the doctor and his qualifications as a medical practitioner. 5 S.W.3d at 730. This court held that the report failed to meet the requirements of an expert report, asserting the defendants could not "determine whether [the] expert was qualified in the applicable standard of care." Id. at 732. The instant case is even further removed from compliance with the statute because the report filed in Schorp at least was identified as a report of an anonymous expert. In this case, the letter did not even purport to be based on an anonymous expert report but was simply a letter signed by an attorney "welcom[ing] the opportunity to describe with specificity Mr. Johnson's complaints." Another case in which the plaintiff sought to rely on a letter written by her counsel is Tibbetts v. Gagliardi, 2 S.W.3d 659, 662-63 (Tex. App.--Houston [14th Dist.] 1999, pet. denied). In that case, two letters were authored by counsel and printed on law firm letterhead. Id. at 662. The letters were addressed to a New York doctor and asked him to respond to two questions regarding whether two of the defendants were negligent in their care and treatment of the plaintiff by marking either "yes" or "no." Id. The appellate court affirmed the trial court's dismissal of the case against those two defendants, noting, "Other than being addressed to Dr. Freed, these purported 'expert reports' provide no proof that Dr. Freed is the person who responded to the questions." Id. Even assuming Dr. Freed responded to the questions, the court held that the letters completely failed to satisfy the definition of an expert report as that term is defined by statute. Id. at 662-63. In this case, the letter written by the Johnsons' attorney is not written by an expert. This fact makes each of the cases cited by the Johnsons distinguishable. See Waktins v. Jones, 192 S.W.3d 672, 673 (Tex. App.--Corpus Christi 2006, orig. proceeding [mand. pending]) (report by Alexander P. Sudershan, M.D.); Heart Hosp. of Austin v. Matthews, 0305-00317-CV, 2006 WL 1194881, at *1 (Tex. App.--Austin May 5, 2006, no pet. h.) (reports by radiologist Dr. Richard Karsh, professor of nursing Alexandria Burwell, and two nurse consultants); Longino v. Crosswhite, 183 S.W.3d 913, 915 (Tex. App.--Texarkana 2006, no pet.) (referring to expert report). Although the Johnsons contend that the letter was taken verbatim from an expert report prepared by Dr. Beradis, the letter does not state the name or the
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qualifications of the expert. See Schorp, 5 S.W.3d at 732. Accordingly, the letter was not an "expert report" as defined by section 74.351. The Johnsons argue in the alternative that the trial court's order should be construed as impliedly finding that their attorney's letter qualifies as a de minimis report. Following this implied finding, the Johnsons contend that the trial court implicitly granted an extension of time to cure the deficiencies pursuant to section 74.351(c) of the Code. (2) The Johnsons' alternative theory, however, is expressly rejected by the statement in the trial court's order that it was not making any ruling regarding the sufficiency of the report. A finding that the letter qualifies as a de minimis report would constitute a ruling on the sufficiency of the report. Moreover, for the reasons given, we conclude that the letter did not qualify as an expert report - de minimis or otherwise; accordingly, the letter could not be relied upon to satisfy the expert report filing requirement contained in section 74.351(a). In their supplemental response to Mimari's motion to dismiss, the Johnsons also argued that the expert report filed in May of 2005 was timely because the trial court granted a legislative continuance. Mimari asserts in his brief that the continuance was granted after the deadline for filing the expert report had passed and that the legislative continuance cannot be retroactively applied to revive deadlines. The Johnsons do not respond to the argument regarding the legislative continuance in their brief. Section 30.003 of the Texas Civil Practice and Remedies Code requires a trial court to grant a continuance to a member of the legislature or a party represented by a member of the legislature "on application." Tex. Civ. Prac. & Rem. Code Ann. 30.003(b) (Vernon Supp. 2006); In re Smart, 103 S.W.3d 515, 521 (Tex. App.--San Antonio 2003, orig. proceeding) (noting continuance must be granted when the application for legislative continuance is made). The party seeking the continuance must file an affidavit with the court stating the grounds for the continuance. Id. at 30.003(d); see also First Interstate Bank of Texas, N.A. v. Burns, 951 S.W.2d 237, 240 (Tex. App.--Austin 1997, no pet.) (noting legislator must present affidavit to obtain a continuance). Although section 30.003 does create a window of protection for legislators beginning thirty days before session and ending thirty days after session, this window relates to the time "in which a legislator may seek a continuance." Burns, 951 S.W.2d at 240; see also In re Smart, 103 S.W.3d at 521. We agree with Mimari that the continuance, if granted, applies only prospectively, and does not revive or extend a deadline that was missed prior to the granting of the continuance. Conclusion

The trial court's order is reversed, and the cause is remanded to the trial court with instructions to the trial court to award Mimari his reasonable attorney's fees and costs of court and to render judgment dismissing the Johnsons claims against Mimari with prejudice. See Tex. Civ. Prac. & Rem. Code Ann. 74.351(b) (Vernon Supp. 2006) (setting forth contents of order to be entered by trial court if expert report is untimely). Alma L. L pez, Chief Justice 1. The Johnsons explain that the letter was sent to the insurance company rather than being filed with the court and served upon Mimari because the insurance company requested that all further correspondence and inquiries be directed to the attention of their field claim specialist who was in receipt of the notice letter. 2. The Johnsons contend that if the order is so construed then this court would be without jurisdiction because an interlocutory order granting an extension under section 74.351(c) is not appealable. See Tex. Civ. Prac. & Rem. Code Ann. 51.014(a)(9) (Vernon Supp. 2006). This court has held, however, that "an order denying a motion to dismiss in this context is subject to interlocutory appeal even though the order also grants an extension of time to serve an expert report unless the extension is granted to cure a deficiency in an existing report." Emeritus Corp.,2006 WL 1466542, at *1. Because we hold that the attorney's letter did not qualify as an "existing report," we have jurisdiction to consider the appeal. See id.

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