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James v. Brothers3/30/2005
This is an appeal from the dismissal of a medical malpractice claim for failure to timely file an expert report pursuant to the Medical Liability and Insurance Improvement Act. On appeal, appellants contend that the trial court abused its discretion when it dismissed their suit with prejudice. We affirm the judgment of the trial court.
PROCEDURAL BACKGROUND
On August 21, 2003, appellants John H. James and Anna Taylor James filed a medical malpractice suit against Dr. Sandra Brothers and Baylor University Medical Center (Baylor) following the death of their daughter Andrea . When appellants filed their case, health care liability claims were subject to the provisions of Tex. Rev. Civ. Stat. Ann. art. 4590i, §13.01, which was repealed and recodified at Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (effective September 1, 2003). Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 884.
On November 23, 2003, appellants' counsel filed a motion to withdraw. This motion stated that Mr. James had been notified of the intent to withdraw on October 9, 2003. The trial court granted the motion on December 16, 2003. At the conclusion of the statutory 180-day period for filing expert reports pursuant to § 13.01 , Dr. Brothers and Baylor each filed a motion to dismiss based on Mr. and Mrs. James's failure to timely file the required expert report.
Nearly a month after the deadline to file the reports, appellants served Dr. Brothers and Baylor with an expert report from Anthony R. DeSalvo, M.D., who was associated with MED Witness, Ltd. Two days later, appellants filed a motion requesting additional time to comply with the expert report requirement. The motion alleged that an extension was warranted because there was good cause for their failure to comply with the statutory requirements. Appellants later filed an amended motion to include an affidavit by Mr. James. This affidavit established that appellants did not forward Andrea's medical records to the medical expert until February 19, 2004, two days after the expiration of the 180-day period.
The trial court conducted a hearing on the motions to dismiss and the motion for extension. Dr. Brothers and Baylor argued that, because appellants had filed no expert report within 180 days, each was entitled to dismissal with prejudice. Appellants, who appeared pro se, gave two reasons for their failure to timely file the expert report.
First, appellants claimed that, despite their diligent attempts to find other counsel following their counsel's withdrawal from the case, they had been unable to retain another attorney . And, appellants contended that they were initially unaware that a medical report had to be filed within 180 days. The trial court found there was not good cause for the failure to timely file the reports, overruled the motion for extension, and granted the motions for dismissal.
I. ABUSE OF DISCRETION
In their sole issue, appellants contend that the trial court abused its discretion in dismissing their suit. We disagree. The standard of review applicable to dismissal under art. 4590i, § 13.01 is abuse of discretion. American Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). An abuse of discretion occurs when a trial court acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. Moore v. Sutherland, 107 S.W.3d 786, 789 (Tex. App.-Texarkana 2003, pet. denied).
A trial court is deemed to have acted arbitrarily or unreasonably if it could have reached only one decision and yet reached a different one. Teixeira v. Hall, 107 S.W. 805, 807 (Tex. App.-Texarkana 2003
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