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Scott v. Manor6/21/2005
Arlene Scott, individually and as representative of the Estate of Dorethea Scott, deceased, Jerry Scott Hubbard, James David Scott, Norman Scott, and Albert Scott, (the "Scotts") appeal from the summary judgment granted in favor of appellees, Beechnut Manor, Living Centers of Texas, Inc., Living Centers of America, Inc. ("Beechnut Manor"), Vencare, Inc., Vencor Hospital, Vencor, Inc. ("Vencor"), and Robert B. Teague, M.D., on their claims of violations of the Deceptive Trade Practices-Consumer Protection Act ("DTPA") and common law negligence based on res ipsa loquitur, and the dismissal of their negligence claim under the Medical Malpractice and Insurance Improvement Act (the "Act"). We affirm.
In 1993, Dorethea Scott suffered a stroke that left her dependent on a ventilator. On October 28, 1994, the Scott family admitted her to Beechnut Manor nursing home, where she resided in the respiratory care unit, which was staffed by Vencor. Ms. Scott was under the care of Dr. Teague, who ordered constant oxygen therapy for her. The Scotts claim they were assured by the administrator that Ms. Scott would be kept on oxygen at all times. The Scotts allege Ms. Scott was taken off of oxygen on December 27, 1994, while routine maintenance was performed on the ventilator. After completing the maintenance procedure, however, the technician allegedly failed to reconnect Ms. Scott's oxygen. Ms. Scott died later that day.
On December 6, 1996, the Scotts sued appellees alleging negligence under the Act, common law negligence based on res ipsa loquitur, and violations of the DTPA. On June 30, 1997, the trial court dismissed the Scotts' health care liability claims under the Act, and on November 4, 1997, the trial court granted appellees' motion for summary judgment on the Scotts' remaining claims for common law negligence based on res ipsa loquitur and DTPA violations.
DISMISSAL OF CLAIMS UNDER THE ACT
In their first issue, the Scotts contend the trial court erred in dismissing their claims under the Act and in overruling their motion for a new trial.
Under the Act, a claimant must provide expert reports and curricula vitae to counsel for each physician or health care provider against whom a health care liability claim is asserted. Further, the claimant must provide these reports and curricula vitae within 180 days after the filing of a health care liability claim or voluntarily non-suit the action against the physician or healthcare provider. TEX. REV. CIV. STAT. ANN. art. 4590i, § 13.01(d). If the claimant fails to furnish the requisite reports and curricula vitae and fails to non-suit the defendants, the court shall, on the motion of the affected physician or health care provider, dismiss the action with prejudice. Id. at § 13.01(e)(3).
The Scotts did not timely file expert reports and curricula vitae within 180 days of the filing of their suit as required by section 13.01(d). The time for filing the reports expired on June 4, 1997. Thus, on June 5 and 6, 1997, appellees sought a dismissal of all claims under the Act pursuant to section 13.01(e)(3). The Scotts responded on June 13, 1997, by filing the necessary reports and curricula vitae along with a "Section 13.01(f) Motion for Extension of Time."
Section 13.01(f) provides that the "court may, for good cause shown after motion and hearing, extend any time period specified in Subsection (d) of this section for an additional 30 days." The Scotts assert that their motion for extension of time was supported by uncontroverted affidavits establishing "good cause" for the nine-day delay in filing their expert reports and curricula vitae. Thus, the Scotts argue the trial court abused its
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