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In re Rodriguez2/20/2003
In this original proceeding, relator Pablo S. Rodriguez, M.D. seeks a writ of mandamus requiring respondent the Honorable Patrick A. Pirtle, Judge of the 251st District Court of Potter County, Texas, to vacate an order granting an extension of time to file an expert report required by the Texas Medical Liability and Insurance Improvement Act (the Act) and to dismiss the suit underlying this action. See Tex. Rev. Civ. Stat. Ann. art. 4590i (Vernon Supp. 2003). In the underlying suit, Mary Lopez, the independent administratrix of the Estate of Ruben E. Grimaldo, the real party-in-interest (the real party), sought recovery against relator.
Article 4590i requires that a plaintiff must furnish the counsel for a defendant physician one or more expert reports, together with a curriculum vitae for each expert, not later than the 180th day after the date on which a health care liability claim is filed. Id. §13.01(d). If the claimant fails to do so within the required time, on the motion of the affected physician, the statute provides that the court shall enter an order dismissing the cause of action with prejudice. Id. §13.01(e)(3).
However, subsection 13.01(g) of the statute provides:
Notwithstanding any other provision of this section, if a claimant has failed to comply with a deadline established by Subsection (d) of this section and after hearing the court finds that the failure of the claimant or the claimant's attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection. A motion by a claimant for relief under this subsection shall be considered timely if it is filed before any hearing on a motion by a defendant under Subsection (e) of this section. Tex. Rev. Civ. Stat. Ann. art. 4590i §13.01(g) (Vernon Supp. 2003).
Subsection (l) of the statute provides that after a hearing, if it appears to the court that a tendered report does not represent a good faith effort to comply with the definition of an expert report contained in subsection (r)(6), the court shall grant a motion seeking dismissal. As defined in the statute, an "expert report" means a written report that provides a fair summary of the expert's opinions as of the date of the report regarding: 1) applicable standards of care, 2) the manner in which the care rendered by the physicians failed to meet the standards, and 3) the causal relationship between that failure and the injury, harm, or damages claimed. Id. §13.01(r)(6).
A brief discussion of the procedural history of this matter is necessary. From the mandamus petition and response, it appears that the suit underlying this proceeding was filed by the real party against Grand Medical Clinic, Inc., Leonardo E. Salcedo, M. D., and Susan Baltz on March 12, 2001. On May 4, 2001, Dr. Salcedo sought indemnity from relator Dr. Rodriguez. On May 9, 2001, seeking to meet the expert report requirement of the statute, the real party filed a report from Dr. George Cole and, on May 10, 2001, filed an amended petition in which they included relator as a party defendant. On January 15, 2002, relator moved to dismiss the underlying suit because the report filed by the real party failed to meet the requirements of section 13.01(r)(6) of article 4590i in that: 1) it did not show it had been prepared by an expert as the term is defined in the statute; 2) it did not state with specificity the applicable standard of care and how it was breached by the health provider, and 3) it did not demonstrate a causal link between the conduct complained of and the alleged injury. Thus, relator contended, because the
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