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In re Samonte4/7/2005
In this mandamus proceeding, Miguel Samonte, Jr., M.D. complains of the trial court's denial of his motion to dismiss a medical malpractice suit. The motion challenged the sufficiency of the unsigned and undated expert report filed by the plaintiff below. The report also failed to met the minimum statutory requirements and did not reflect that the report was prepared by an expert capable of rendering an expert opinion regarding the applicable standard of care, failed to include the qualifications, training, experience, current or past employment or specialty of the testifying expert, is unsigned and undated. Relator raises the question of whether such a report, as tendered to the defendant, demonstrates a good faith effort on the part of plaintiff to comply with Tex. Rev. Civ. Stat. Ann. art 4590i, now Tex. Civ. Prac. & Rem Code Ann. ยง 74.001 et seq. Finding that the reports were filed in good faith, the trial court denied the motion to dismiss. We conditionally grant relief.
I. FACTUAL SUMMARY
The underlying cause of action arises from a medical malpractice case involving the care and treatment of Ricardo Rangel. Rangel had elected to undergo carpel tunnel surgery to be conducted by Dr. Andrew Joseph Palafox at the Las Palmas Medical Center on November 1, 2002. Defendant Miguel Samonte, Jr., M.D. was the anesthesiologist managing the anesthesia of Ricardo Rangel. Subsequent to the surgery, Ricardo Rangel suffered a cardiac arrest. All efforts to resuscitate him were not successful and he was pronounced dead approximately one and a half hours after the surgery.
The decedent's mother, Julia Rangel, filed her Original Petition against Samonte and the other treating physician present during Ricardo Rangel's surgery and the hospital, asserting various claims of medical negligence .
The plaintiff timely filed an expert's report as required by the Medical Liability and Insurance Improvement Act (the Act). The report is purportedly prepared by Dr. George Mychaskiw II, D.O. and is included in the appellate record. Relator has urged that the report as prepared and produced is deficient for a variety of reasons including substantive defects as to the form and content of the report. He contends that it does not comport with the requirements of the Texas Medical Liability and Insurance Improvement Act and, therefore, the cause against him should be dismissed.
Samonte moved to dismiss the Plaintiff's claims against him and the court conducted a hearing to address the adequacy of the report. Samonte argued that the report was deficient because it did not state that Mychaskiw had knowledge of or was qualified to discuss the accepted standards of care, did not state that the expert was board certified, whether he was practicing medicine at the time, or whether he was qualified on the basis of training or experience to offer a report, and was not signed. He also argued that the purported expert's curriculum vitae was not included with the report. Plaintiff's counsel argued that the tendered report should be considered a good faith effort to comply with the requirements of the act.
After a hearing on the issue, the trial court denied Samonte's motion. Relator has filed an Original Petition for Writ of Mandamus seeking relief from this Court and raising five issues on appeal. Issues One, Two, and Four attack the trial court's failure to dismiss the cause on the grounds that the expert's report fails to comply with the requirements of the Act, Issue Three asserts that the plaintiff's report as produced does not equate to a good faith attempt to comply with the Act, and finally, that the defendant does not have an adequate remedy at law and is the
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