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Birdwell v. Texarkana Memorial Hospital12/12/2003
The Estate of Bessie Mae Birdwell, Deceased, by and through its independent administrator, David W. Birdwell, and David W. Birdwell, Individually, (the Estate) appeals the trial court's dismissal of their suit against Texarkana Memorial Hospital, d/b/a Wadley Regional Medical Center (Wadley), for the Estate's alleged failure to meet the expert report requirements set out in the former Medical Liability and Insurance Improvement Act. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01 (Vernon Supp. 2003).
Factual and Procedural Background
Birdwell was hospitalized at Wadley June 11, 1998, with multiple medical problems, including a blood clot and pulmonary embolism. She had a relatively uneventful hospital stay, until June 16, 1998, when she was found on the floor of her hospital room. Malcolm A. Smith, M.D., examined her and treated her for a skin tear and a small hematoma on the right side of her head, then discharged her from the hospital. Later that day, Birdwell developed a significant change in her mental status and was brought back to Wadley. She was given a CT scan and diagnosed with multiple intracranial hemorrhages. She remained paralyzed on her left side and in a diminished level of consciousness. She was discharged from the hospital September 21, 1998. She died January 29, 1999.
The Estate sued Wadley, Smith, and Collom & Carney Clinic Association for negligence and wrongful death. The Estate timely filed the expert report and curriculum vitae of Marsha E. Thigpen, M.D., as required by the Medical Liability and Insurance Improvement Act. Smith and Collom & Carney moved to strike the expert's report and dismiss the case against them with prejudice. The trial court granted the motion; no appeal was taken against those defendants. Wadley then moved to strike the expert's report and dismiss the case against it with prejudice. The trial court held a hearing and granted the motion. The Estate appeals, contending the trial court abused its discretion in determining the expert report it provided did not meet the requirements of the Medical Liability and Insurance Improvement Act.
Standard of Review
Dismissal of a cause of action under Article 4590i, Section 13.01 is treated as a sanction and is reviewed for an abuse of discretion. See Am. Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001). An abuse of discretion occurs when a trial court acts in an arbitrary or unreasonable manner or without reference to any guiding principles. See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). A trial court does not abuse its discretion simply because it may decide a matter within its discretion differently than an appellate court. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). However, a trial court has no discretion in determining what the law is or in applying the law to the facts. Thus, "a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, . . . ." Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
Expert Report Requirements
Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d) requires a plaintiff asserting a healthcare liability claim to submit an expert report, along with the expert's curriculum vitae, as to each physician or healthcare provider named as a defendant in the suit, no later than the 180th day after filing suit. See Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d). The Act describes 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 m
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