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Neasbitt v. Warren6/15/2000
The issue in this case is whether the Texas Medical Liability and Insurance Improvement Act (the Act) applies to veterinarians. We hold it does not. We reverse the judgment of the trial court dismissing this cause for want of prosecution under section 13.01(d) of that act. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d) (Vernon Supp. 2000).
BACKGROUND
Appellants Glenn and Sally Neasbitt sued Appellee David P. Warren, D.V.M. The Neasbitts alleged that Dr. Warren was a doctor of veterinary medicine and was negligent in his treatment of their Arabian mare, "Khamees," in connection with artificial insemination, resulting in a serious rectal tear that necessitated emergency colostomy surgery and ultimately required the mare to be put to sleep.
The Neasbitts filed suit on March 24, 1999. Section 13.01(a) of article 4590i requires that, in a "health care liability claim," the claimant shall, not less than the 90th day after the date the claim is filed:
(1) file a separate cost bond in the amount of $5,000 for each physician or health care provider named by the claimant in the action;
(2) place cash in an escrow account in the amount of $5,000 for each physician or health care provider named in the action; or
(3) file an expert report for each physician or health care provider with respect to whom a cost bond has not been filed and cash in lieu of the bond has not been deposited under Subdivision (1) or (2) of this subsection.
Id. § 13.01(a).
If the plaintiff fails to comply with that section of the statute, the court "on the motion of the affected physician or health care provider," shall order the plaintiff to file a bond in the amount of $7,500 not later than the twenty-first day after the date of the order. Id. § 13.01(b)(1). If the plaintiff fails to comply with that order, "the action shall be dismissed for want of prosecution with respect to the physician or health care provider, subject to reinstatement in accordance with the applicable rules of civil procedure and Subsection (c) of this section." Id. § 13.01(b)(2).
On June 25, 1999, Warren filed a motion for cost bond pursuant to section 13.01(b) of article 4590i, alleging that more than ninety days had expired since the Neasbitts had filed suit and that they had not filed a $5,000 cost bond or placed that amount of cash in escrow. The Neasbitts also had not filed a written report by an expert witness regarding the applicable standard of care, how Warren failed to meet that standard, and the causal relationship between the failure and the alleged injury, harm, or damages claimed. See id.§ 13.01(b).
Warren moved the court for an order requiring the Neasbitts to file a $7,500 cost bond not later than twenty-one days after the date of the order and providing for dismissal of their action for want of prosecution if they failed to comply. On July 23, 1999, the trial court signed an order granting Warren's motion for cost bond and ordering the Neasbitts to file a $7,500 cost bond not later than the twenty-first day after the date of the order. When the Neasbitts failed to file the cost bond within that period, Warren filed a motion to dismiss for want of prosecution, which the trial court granted on September 3, 1999. The Neasbitts timely filed a verified "Motion to Reinstate or, in the Alternative, to Amend Order of Dismissal" on October 4, 1999. Specifically, the Neasbitts asserted in that motion that they were not required to comply with the requirements of article 4590i because veterinarians are not "physicians" or "health care providers" and are not protected by the provisions of that act. Alternatively, the Neasbit
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