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Marquez v. Providence Memorial Hospital Tenet Healthcare Corp.9/27/2001
nd court costs in a total amount of $17,622.80. In a separate order dated April 28, 2000, the trial court dismissed Marquez's suit against Dr. Vigil and awarded attorney's fees and costs totaling $26,207.77. These orders became final and appealable when the trial court severed them from the remaining action against Dr. Wade. Marquez timely filed her notice of appeal.
MEDICAL LIABILITY AND INSURANCE IMPROVEMENT ACT
In Issues One and Two, Marquez argues that the trial court abused its discretion in refusing to grant her request for a thirty-day grace period pursuant to Section 13.01(g). Providence, Tenet, and Dr. Vigil maintain that the trial court acted properly in refusing to grant an extension of time since Marquez did not timely file a verified motion. Additionally, they argue that no abuse of discretion is shown in the trial court's refusal to grant additional time under Section 13.01(g) because Marquez did not establish that her failure to timely file the report was not intentional or the result of conscious indifference but was the result of an accident or mistake. We will address these arguments separately, and where necessary, we will distinguish between the Appellees.
Relevant Provisions of the MLIIA
The Medical Liability and Insurance Improvement Act (MLIIA) was enacted by the Texas Legislature to curtail frivolous claims. Hart v. Wright, 16 S.W.3d 872, 876 (Tex.App.--Fort Worth 2000, pet. denied); Horsley-Layman v. Angeles, 968 S.W.2d 533, 537 (Tex.App.--Texarkana 1998, no pet.). Section 13.01 requires a plaintiff to provide each defending physician or health care provider with one or more expert reports relating to liability and causation. Wood v. Tice, 988 S.W.2d 829, 830 (Tex.App.--San Antonio 1999, pet. denied); see Tex.Rev.Civ.Stat.Ann. art. 4590i, § 13.01(d). The expert report, along with a curriculum vitae of each expert, must be furnished to the defendant not later than the 180th day after the date on which a health care liability claim is filed or the last day of any extended period as permitted under the statute. Tex.Rev.Civ.Stat.Ann. art. 4590i, § 13.01(d). As referenced in subsection (d), the statute contains three distinct provisions by which the plaintiff may receive an extension of time. See Tex.Rev.Civ.Stat.Ann. art. 4590i, § 13.01(f), (g), (h). Pertinent to this case, subsection (g) provides:
(g) 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).
If a plaintiff fails to comply with subsection (d) and the defendant files a motion seeking sanctions pursuant to Section 13.01(e), a trial court has no discretion and must enter an order dismissing the case with prejudice. Tex.Rev.Civ.Stat.Ann. art. 4590i, § 13.01(e)(3)(Vernon Supp. 2001); Hart, 16 S.W.3d at 876.
Standard of Review
We apply an abuse of discretion standard when reviewing a dismissal under Section 13.01(e)(3). American Transitional Care Centers of Texas, Inc. v. Palacios, No. 99-1311, 2001 WL 491205 (Tex. May 10, 2001); Hart, 16 S.W.3d at 875; Tibbetts v. Gagliardi, 2 S.W.3d 659, 663 (Tex.App.--Houston [14th
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