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Leday v. Zatorski10/20/2005
Appellants, Saprina Leday and Mark Leday, individually and as next friends of Mark Conrad Leday Jr. and Sasha Marquetta Booker (collectively the "Ledays"), appeal the dismissal of their medical malpractice lawsuit against appellees, Jeffrey J. Zatorski, M.D. and Houston Northwest Partners, Ltd., d/b/a Houston Northwest Medical Center ("Houston Northwest"). In connection with their claims against Zatorski, the Ledays contend the trial court erred in failing to grant them an extension of time in which to file the expert report required by former article 4590i of Texas Revised Civil Statutes. In connection with their claims against Houston Northwest, the Ledays contend the trial court erred in dismissing their lawsuit for failing to file an expert report that conformed to the requirements of former article 4590i. We hold that the trial court did not abuse its discretion, and, therefore, affirm.
Facts
In January 2002, Saprina Leday was admitted to Houston Northwest with complaints of seizures and unremitting headaches and was treated by several doctors and nurses. To diagnose the cause of LeDay's complaints, Zatorski performed a cerebral arteriogram---a test in which an iodine-containing compound is injected as a contrast medium. During this procedure, Leday suffered a severe allergic reaction to the iodine. On May 23, 2003, the Ledays sued Houston Northwest and several doctors, including Zatorski, for medical negligence.
On November 20, 2003, the Ledays sent a proposed Rule 11 Agreement to all of the defendants' counsel, requesting a thirty-day extension in which to file the expert report required under section 13.01 of former article 4590i. All of the defendants except Zatorski signed the Rule 11 Agreement and the Ledays filed the agreement with the trial court on December 5, 2003. Thereafter, the Ledays obtained new counsel. A day before the extended deadline, the Ledays' new attorney filed his appearance and the Ledays filed their expert report.
In January 2004, Zatorski moved to dismiss the Ledays' petition because their expert report was not filed within the time period prescribed under section 13.01(e) of former article 4590i. In February 2004, the Ledays responded to Zatorski's motion to dismiss, contending that the delay in filing their expert report was the result of an accident or mistake, and moved under sections 13.01(g) and 13.01(f) of former article 4590i for an extension of time in which to file their expert report. After a hearing, the trial court denied the Ledays' motion to extend the time to file their expert report and granted Zatorski's motion to dismiss.
In February 2004, Houston Northwest moved to dismiss the Ledays' petition, claiming that the Ledays' expert report fails to provide a fair summary of Houston Northwest's negligence. The Ledays objected to this motion. The trial court granted the motion and dismissed the Ledays' claims against Houston Northwest.
The trial court severed the Ledays' claims against Houston Northwest and Zatorski. The Ledays appealed.
The Ledays' Claims Against Zatorski
In their appeal against Zatorski, the Ledays contend the trial court abused its discretion in failing to grant them a thirty-day extension in which to file their expert report. Specifically, the Ledays contend the trial judge should have granted them an extension of time under sections 13.01(g) and 13.01(f) of former article 4590i.
A. Standard of Review
We review a trial court's ruling on a motion for extension of time to file an expert report under an abuse of discretion standard. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003) (" e hold that a section 13
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