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Broom v. MacMaster5/3/1999
On the last day before the statute of limitations was to run on her claims, Linda J. Broom filed a medical malpractice suit against Dr. Benzel C. MacMaster and Presbyterian Hospital of Dallas. Broom did not, however, provide MacMaster with an expert report within 180 days of filing her suit as required by the Medical Liability and Insurance Improvement Act. We must decide whether Broom proved she was entitled to the grace period provided by the Act within which to file the report and avoid dismissal of her claims against MacMaster. We must also decide whether Broom was diligent in effecting service of process on Presbyterian Hospital, thus precluding application of the statute of limitations to bar her claims against it. Because Broom failed to show her late filing of the expert report was a result of accident or mistake, we conclude she did not prove she was entitled to the grace period provided by the Act, and we affirm the trial court's dismissal of Broom's claims against MacMaster. Further, we conclude Broom did not use due diligence in attempting to serve Presbyterian Hospital, and we affirm the trial court's summary judgment in the hospital's favor.
Factual Background
On January 23, 1996, nearly two months after filing her suit in November 1995, Broom requested issuance and service of citation on MacMaster. No similar request was made with respect to Presbyterian Hospital until March 14, 1996. The hospital was not served with citation until mid- April.
Several months after being served, Presbyterian Hospital filed a motion for summary judgment grounded in the argument that, although Broom filed suit within the time period prescribed by the statute of limitations, the hospital was not served with citation until after the limitations period had run and Broom failed to use diligence in effecting service. Because diligence in attempting service is required when the defendant is served after the limitations period has expired, Presbyterian Hospital argued that it was entitled to judgment as a matter of law. The trial court agreed and granted the hospital a summary judgment on September 12, 1996.
Approximately two weeks later, MacMaster filed a motion to dismiss Broom's claims against him and to recover his fees and costs pursuant to article 4590i, section 13.01(e) of the Medical Liability and Insurance Improvement Act. MacMaster alleged that Broom had not timely provided him with an expert report, or, in the alternative, voluntarily dismissed her claims against him as required by section 13.01(d). Urging the trial court to apply the provisions of section 13.01(e), MacMaster argued he was entitled to dismissal of the claims against him with prejudice to refiling as well as reasonable attorney's fees and costs of court.
After MacMaster filed his motion, but before the motion was heard, Broom sent him a report prepared by her expert witness, a physician. Also before MacMaster's motion was heard, Broom filed a motion pursuant to article 4590i, section 13.01(g) for additional time within which to file the report. The motion was verified by her attorney. The trial court denied Broom's motion and dismissed her claims against MacMaster with prejudice pursuant to section 13.01(e). Broom then filed a motion to reconsider the denial of her motion and the dismissal of her claims. Attached to this motion was an affidavit of her attorney further explaining the reasons for the late filing of the report. The trial court denied the motion to reconsider. This appeal followed challenging both the trial court's dismissal order in favor of MacMaster and its summary judgment in favor of the hospital.
Discussion
Article 4590i, section
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