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Marquez v. Providence Memorial Hospital Tenet Healthcare Corp.9/27/2001
ce period, Marquez makes no mention of the alleged misfiling but instead alleges only the following:
If the Court determines that the report of Dr. Huffman is inadequate, then Plaintiff would show that such inadequacy was not intentional nor the result of conscious indifference, but the result of an accident or mistake on the part of the Plaintiff's counsel and Plaintiff who believed that the report adequately covered the actions of the emergency room. On that basis, the Plaintiff would request that the Court grant the thirty day grace period contemplated by Section 13.01(g) of Article 4590i, Texas Revised Civil Statutes, to run from the conclusion of the hearing of this matter, to allow the Plaintiff sufficient time to file an amended report which adequately complies with the requirements of Section 13.01(r)(6).
At the July 1 hearing, only Mr. Hedicke appeared and testified on behalf of Marquez. He testified that he never saw Dr. Huffman's report until March of 1999, one month after it had been filed with the clerk's office. According to him, the report came into the office but neither he nor Mr. Poulos saw it prior to its filing. Instead, a legal assistant took the report and filed it "with the Court" without showing it to the attorneys. He did not specify the date that his office received the report. However, as pointed out by Providence and Tenet, the report was first filed on February 3, 1999 and Mr. Poulos signed the certificate of service and notice of filing of expert report. At the August 31 hearing on Dr. Vigil's motion to dismiss, the reporter's record from the July 1 hearing was admitted into evidence. Marquez did not offer any additional sworn testimony, but Mr. Hedicke stated without objection that Dr. Huffman's report, through accident or mistake, was not filed when it was received in their office in November of 1998. Normally, an attorney's statements must be under oath to be considered evidence. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997); Knie v. Piskun, 23 S.W.3d 455, 463 (Tex.App.--Amarillo 2000, pet. denied). The opponent of the testimony, however, can waive the oath requirement by failing to object when the opponent knows or should know that an objection is necessary. Banda, 955 S.W.2d at 272; Knie, 23 S.W.3d at 463. Unlike what occurred in Banda and Knie, counsel did not preface his remarks by stating that he was making them as an officer of the court nor did he refer to his argument as testimony, and therefore, it would not have been apparent to opposing counsel that an objection was required. We do not find that Providence, Tenet, or Dr. Vigil waived the oath requirement.
Given counsel's testimony that Dr. Huffman's report was filed with the clerk's office when it was received in his office, the trial court could have found that counsel did not obtain the report until the date of its filing, February 3, 1999. No other explanation was offered for its untimely filing. Thus, Marquez failed to establish that the untimely filing of the report was not intentional or the result of conscious indifference but was the result of accident or mistake. Even if the unsworn statements of counsel made at the second hearing could have been considered as evidence, the trial court still would not have abused its discretion in finding against Marquez on this issue in the face of counsel's conflicting statements regarding receipt of the expert report. In apparent contradiction of his testimony at the first hearing, counsel stated during the subsequent hearing that the report had been received in his office several months before the filing date and had not been filed due to accident or mistake. Given the inconsistency, the trial court could have accepted one explanation and
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