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Hillman v. Diagnostic Clinic of Houston4/28/2005
This appeal arises from medical malpractice and contractual claims brought by appellant, Cheryl P. Hillman, against appellee, Diagnostic Clinic of Houston, P.A. ("the Clinic"). The trial court dismissed Hillman's claims with prejudice on the ground that the expert report she filed to support her medical malpractice claim did not comply with section 13.01, article 4590i, the Medical Liability and Insurance Improvement Act.
In two points of error, Hillman contends that the trial court erred (1) in finding her expert's report inadequate and (2) in dismissing her remaining contractual claim. In a cross--point, the Clinic contends that the trial court erred in granting Hillman an extension to file the report.
We affirm the trial court's ruling that the expert report is inadequate, and reverse and remand Hillman's breach of contract claim.
BACKGROUND
On October 20, 2000, Hillman, while in the midst of undergoing chemotherapy, suffered a chemical burn to her left arm when the treating agent leaked outside of her vein and under her skin. Hillman suffered pain and damage to her skin. Due to the injury, further chemotherapy was postponed.
Because treatment was delayed, Hillman's insurance provider, Unicare, refused to pay an outstanding bill in the amount of $2,721.00 to the Clinic. The Clinic sought reimbursement directly from Hillman. To end incessant collection calls, Hillman paid the bill. On or about November 12, 2002, Unicare advised Hillman that it had paid the Clinic the $2,721.00 and that the Clinic would reimburse her. Hillman has requested the reimbursement from the Clinic but has been denied.
On January 3, 2003, Hillman filed suit against the Clinic, alleging medical malpractice. Hillman amended her petition on September 16, 2003 to add the breach of contract claim for the Clinic's failure to reimburse.
The parties do not dispute that Hillman failed to timely file her expert report, as required under article 4590i, subsection 13.01(d). However, Hillman was granted a 30-day extension under subsection 13.01(g) because the trial court found that Hillman's failure to timely file her expert report was not intentional. Hillman then filed an expert report by Judith A. Headley, R.N.
On October 2, 2003, the Clinic moved to dismiss Hillman's case on the grounds that the report filed was substantively inadequate. The trial court found Hillman's report inadequate to meet the requirements of section 13.01(r)(6) and dismissed all of Hillman's claims with prejudice.
A. Standard of Review
We review all section 13.01, article 4590i, rulings for an abuse of discretion. Am. Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); Strom v. Mem'l Hermann Hosp. Sys., 110 S.W.3d 216, 220 (Tex. App.---Houston [1st Dist.] 2003, pet. denied).A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. Downer v. Aquamarine Ops., Inc., 701 S.W.2d 238, 241--42 (Tex. 1985). When reviewing matters committed to the trial court's discretion, we may not substitute our own judgment for that of the trial court. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).
B. Inadequacy of the Expert Report
In her first point of error, appellant contends that the trial court abused its discretion in dismissing her suit for failure to file an adequate expert report.
Expert testimony is required to support a medical-malpractice claim. Palacios, 46 S.W.3d at 876. Under former subsection 13.01(r)(6), a claimant in a health care liability claim must file an expert report that provides a fair
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