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In re Covenant Medical Center7/7/2005
Original Proceeding
Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
Covenant Medical Center and John Eaton, L.V.N. (collectively referred to as Covenant), petitioned this court for a writ of mandamus directing the trial court to 1) vacate its order granting Andrew Cord a 30-day grace period to file a medical expert report under §13.01(g) of article 4590i of the Texas Revised Civil Statutes and 2) dismiss Cord's suit. Cord was not entitled to an extension because the medical report tendered fell outside the scope of §13.01(g), says Covenant, and, therefore, the trial court was obligated to dismiss the suit. We deny the application.
The first question we must address is whether the avenue of mandamus can be used to address the issue before us. As recently as this year, a panel of this court held that it could. See In re Brown, No. 07-04-0455-CV, 2005 WL 176504 at 1 (Tex. App.-Amarillo January 27, 2005, orig. proceeding); accord, In re Rodriguez, 99 S.W.3d 825, 827-28 (Tex. App.-Amarillo 2003, orig. proceeding) (holding the same); In re Morris, 93 S.W.3d 388, 390 (Tex. App.-Amarillo 2002, orig. proceeding) (holding the same). So the answer is yes.
Next, we must determine whether the trial court abused its discretion by granting Cord 30 additional days to file an adequate expert report. See In re Entergy Corp., 142 S.W.3d 316, 320 (Tex. 2004) (holding that before mandamus can issue, the applicant must show that the trial court clearly abused its discretion); Walker v. Gutierrez, 111 S.W.3d 56, 63 (Tex. 2003) (holding that the appropriate standard of review when assessing whether the trial court erred in granting an extension is one of abused discretion). According to Covenant, such an abuse occurred because the failure to timely provide an adequate report resulted not from an accident or mistake, as contemplated by art. 4590i, §13.01(g), but rather intentional or consciously indifferent conduct. Moreover, the conduct consisted of a purported mistake of law concerning the qualifications or ability of a registered nurse to opine about what caused the injury at issue.
The expert in question (Paula L. Antognoli, Ph.D., R.N., C.N.A.A.) was, and is, a registered nurse with a doctorate in philosophy. In her report, she generally described the length of time she practiced nursing, her duties, and the areas of her "clinical expertise." The latter included "medical/surgical, critical care, emergency and trauma care, and surgical services . . . ." So too did she state that the "enclosed vita attests to my qualifications as a result of my education and experience to render an opinion about the standard of care applicable to this case." (Emphasis added). Nowhere in the report or vitae, however, did she expressly represent that her qualifications also enabled her to address causation.
One suing another for medical malpractice must ot later than the later of the 180th day after the date on which a health care liability claim is filed or the last day of any extended period . . . (1) furnish to counsel for each physician . . . one or more expert reports, with a curriculum vitae of each expert listed in the report; or (2) voluntarily non-suit the action against the physician . . . .
Tex. Rev. Civ. Stat. Ann. art. 4590i, §13.01(d) (Vernon Supp. 2003). For a report to satisfy art. 4590i, §13.01(d), it must be written by an expert and provide a fair summary of that expert's opinions regarding the applicable standard of care, its breach, and the causal relationship between the breach and injury. Chisholm v. Maron, 63 S.W.3d 903, 906 (Tex. App.-Amarillo 2001, no pet.). So too must it and the attached vitae establish the expert's qualifications as a
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