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Marquez v. Providence Memorial Hospital Tenet Healthcare Corp.9/27/2001
rejected the other. While another court might draw a different conclusion from the evidence, that does not establish an abuse of discretion. Under these circumstances, the trial court did not abuse its discretion in denying the request for a grace period pursuant to Section 13.01(g). Issues One and Two are overruled.
WAIVER
In Issue Three, Marquez argues without providing any authority that Providence, Tenet, and Dr. Vigil waived their right to seek dismissal because they did not file a motion pursuant to Section 13.01(b) when Marquez failed to file an expert report on the ninetieth day after suit had been filed as required by Section 13.01(a)(3). Given Marquez's failure to cite any authority in support of this argument, she has waived review of this issue. See Tex.R.App.P. 38.1(h)(requiring brief to include clear and concise argument for contentions made, with appropriate citations to authority and record); Chapman Children's Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 435 (Tex.App.--Houston [14th Dist.] 2000, pet. denied); Keim v. Anderson, 943 S.W.2d 938, 941 (Tex.App.--El Paso 1997, no pet.). Even if Marquez had not waived the claim, Section 13.01(e) does not predicate a defendant's motion to dismiss upon pursuing a motion under Section 13.01(b). Issue Three is overruled.
CONSTITUTIONALITY OF MLIIA
In her fourth issue on appeal, Marquez alleges that application of the Texas Medical Liability and Insurance Improvement Act is unconstitutional as applied to her. We understand Marquez to make two distinct constitutional claims. First, she argues that the MLIIA unreasonably restricts her access to the courts in violation of the open courts and due process guarantees of Article 1, section 13 of the Texas Constitution. Second, she asserts that the sanctions imposed as a result of her untimely filing of the expert report are arbitrary and not reasonably related to the statutory goal of insuring that frivolous claims are not filed against designated health care providers, and therefore, this application of the statute has violated her right to due process under both the Texas and United States Constitutions.
We begin our analysis by presuming that the statute is constitutional. See Enron Corporation v. Spring Independent School District, 922 S.W.2d 931, 934 (Tex. 1996). It is for the Legislature rather than this Court to determine the wisdom or expedience of a law. Id. The burden is on Marquez to demonstrate that the statute fails to meet constitutional requirements. Id. In the context of her due process-open courts claim, Marquez was required to show that: (1) a cognizable common-law cause of action is being restricted; and (2) the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute. Sax v. Votteler, 648 S.W.2d 661, 666 (Tex. 1983); McGlothlin v. Cullington, 989 S.W.2d 449, 451 (Tex.App.-- Austin 1999, pet. denied).
It is undisputed that Marquez's claim based upon medical negligence is a recognized common law claim. Turning to the second issue, Section 13.01 provides a plaintiff with two methods of preserving a health care claim: (1) posting a cost bond or cash deposit; or (2) filing an expert report. See McGlothlin, 989 S.W.2d at 452. The Legislature imposed these requirements in order to keep down medical insurance costs and health care costs by reducing frivolous medical malpractice claims, and to allow a defendant physician to recoup some portion of court costs from a successful defense. See McGlothlin, 989 S.W.2d at 452. We need not proceed further with this constitutional analysis, however, because Marquez produced no evidence that these requirements actually worked to prevent her
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