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Jackson v. Reardon3/16/2000
This is an appeal from the dismissal of appellant's medical malpractice claims against Baylor College of Medicine and Dr. Patrick Reardon (collectively referred to as "Baylor") pursuant to Tex. Rev. Civ. Stat. Ann. art. 4590i, sec. 13.01 (Vernon Supp. 2000 ("art. 4590i"). We affirm.
Facts
On February 5, 1999, 221 days after appellant filed suit, Baylor moved to dismiss and for sanctions for appellant's failing to comply with the 180-day statutory mandate to file expert witness' reports. Baylor's motion was set for hearing by submission without oral argument on February 22, 1999. On February 19, 1999, Jackson untimely filed an expert report, lacking the required curriculum vitae. See art. 4590i, § 13.01(d). Appellant filed no other response and no request for grace under Article 4590i.
The judge granted Baylor's motion on February 23, 1999, dismissed Jackson's claims with prejudice, and awarded Baylor attorney's fees. On March 9, 1999, 15 days after the hearing on Baylor's motion, appellant responded to the motion and requested the trial court to reconsider its decision and grant appellant a grace period under art. 4590i to file his expert report. After an oral hearing on April 9, 1999, the trial court denied appellant's motion for reconsideration and for grace and awarded Baylor additional attorney's fees.
Analysis
In the first point of error, appellant contends the trial court erred in dismissing his claims against Baylor because he did not provide an expert report.
We review the trial court's dismissal of a cause of action under section 13.01(e) using an abuse of discretion standard. See Martinez v. Lakshmikanth, 1 S.W.3d 144, 146 (Tex. App.-Corpus Christi 1999, no pet.). This is different from the standard of review we apply when the sole issue is whether a timely filed "expert report" complies with art. 4590i, sections 13.01(l), (r)(6). See Palacios v. American Transitional Care Centers of Texas, Inc., 4 S.W.3d 857, 860 (Tex. App.-Houston [1st Dist.] 1999, pet. filed). There is no issue here like that in Palacios. The sole issue is whether appellant should be excused for filing his report late.
Section 13.01(d) of art. 4590(i) provides:
Not later than the later of the 180th day after the date on which a health care liability claim is filed or the last day of any extended period established under subsection (f) or (h) of this section, the claimant shall, for each physician or health care provider, against whom a claim is asserted:
(1) furnish to counsel for each physician or health care provider one or more expert reports, with a curriculum vitae of each expert listed in the report; or
(2) voluntarily non-suit the action against the physician or health care provider.
Appellant sued on June 29, 1998. Thus, he had until December 26, 1998 either to furnish an expert report with curriculum vitae attached or to non-suit the case. He did neither.
Appellant's complaint fails because the sanctions imposed here are mandated by art. 4590i, §13.01(e); see also Horsley-Layman v. Angeles, 968 S.W.2d 533, 536 (Tex. App.-Texarkana 1998, no writ). Section 13.01(e) provides:
If a claimant has failed, for any defendant physician or health care provider, to comply with subsection (d) of this section within the time required, the court shall, on the motion of the affected physician or health care provider, enter an order awarding as sanctions against the claimant or the claimant's attorney:
(1) the reasonable attorney's fees and costs of court incurred by that defendant;
(2) the forfeiture of any cost bond respecti
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