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Adedunye-Ikhimokpa v. Houston Methodist West Houston Hospital

Court of Appeals of Texas, Fourteenth District

January 10, 2017

OLUWAFUNMI ADEDUNYE-IKHIMOKPA, INDIVIDUALLY AND AS NEXT FRIEND OF BLESSING IKHIMOKPA, A MINOR, ALEXANDER A. IKHIMOKPA, DALONDA IKHIMOKPA, MARYANN IKHIMOKPA, AND DYLAN IKHIMOKPA, Appellants
v.
HOUSTON METHODIST WEST HOUSTON HOSPITAL, FORMALLY KNOWN AS METHODIST HEALTH CENTERS, AND DARNEL D. PETTWAY, M.D. Appellees

         On Appeal from the 125th District Court Harris County, Texas Trial Court Cause No. 2015-29850

          Panel consists of Chief Justice Frost and Justices Boyce and Christopher.

          OPINION

          Kem Thompson Frost Chief Justice

         Health-care liability claimants assert the trial court erred in dismissing their claims based on insufficiency of the expert report under Texas Civil Practice and Remedies Code section 74.351. In particular, the claimants assert that the hospital waived its objections to the sufficiency of the report by failing to file them timely.

          Concluding the hospital did not waive its objections, we affirm.

         Factual and Procedural Background

         Innocent Ikhimokpa arrived at appellee/defendant Houston Methodist West Houston Hospital, formerly known as Methodist Hospital Centers ("Hospital"), with chest pain.[1] Emergency-room physicians performed an electrocardiogram and other initial tests. An emergency-room physician prescribed an aspirin and sent Ikhimokpa back to the waiting room while they awaited the results of other medical tests. While in the waiting room, Ikhimokpa slumped sideways. Emergency-room nurses attempted to perform cardiopulmonary resuscitation, but they could not revive Ikhimokpa. He died.

         About a year later, on May 22, 2015, appellant/plaintiff Oluwafunmi Adedunye-Ikhimokpa, individually and as next friend of Blessing Ikhimokpa, a minor, Alexander A. Ikhimokpa, Dalonda Ikhimokpa, Maryann Ikhimokpa, and Dylan Ikhimokpa (collectively, the "Ikhimokpa Parties") filed an original petition asserting a health-care liability claim against the Hospital and Darnel D. Pettway, M.D., an emergency-room physician (collectively, the "Hospital Parties"). The Ikhimokpa Parties attached an expert report to the pleading. The original petition does not contain a certificate of service or any other indication that the pleading was served on the Hospital Parties. There is no return of service in the file showing that the Hospital Parties were served with the original petition.

         Several weeks later, the Ikhimokpa Parties filed their First Amended Petition. The amended pleading does not contain an expert report nor does it mention the expert report attached to the original pleading. On July 13, the Ikhimokpa Parties served the Hospital Parties with citation and the First Amended Petition. The Hospital filed an answer to the lawsuit on July 30. Pettway filed an answer on August 26. The next day (August 27), the Ikhimokpa Parties served the Hospital by e-mail with the expert report that had been attached to the Original Petition. On September 17, the Hospital filed objections to the sufficiency of the expert report. On December 17, the Hospital filed a motion to dismiss the lawsuit and recover attorney's fees on the grounds that the expert report was insufficient and the Ikhimokpa Parties' 120-day deadline to provide a competent report had expired. The following week, the Ikhimokpa Parties filed an amended expert report. The Ikhimokpa Parties did not argue that the original expert report was sufficient; they argued that the Hospital waived its objections to the original expert report by failing to file their objections on time.

         Following a hearing, the trial court granted the Hospital's motion to dismiss and request for attorney's fees. The Ikhimokpa Parties now challenge that ruling in this interlocutory appeal.

         Issues and Analysis

         The Ikhimokpa Parties raise four issues. In the first three, they assert that the trial court erred in granting the Hospital's motion to dismiss because the Hospital Parties[2] waived their objections to the sufficiency of the report by failing to file timely objections. In their fourth issue, the Ikhimokpa Parties assert that the expert report is sufficient because the expert stated that the Hospital's negligence caused Ikhimokpa's death.

         A. Did the Hospital waive its objections to the expert report?

         Texas Civil Practice and Remedies Code section 74.351, entitled, "Expert Report, " requires a claimant filing a health-care liability claim to serve on each defendant, or the defendant's attorney, one or more expert reports with a curriculum vitae of each expert not later than 120 days after the date the defendant files its original answer to the health-care liability claim. See Tex. Civ. Prac. & Rem. Code Ann. ยง 74.351(a) (West, Westlaw through 2015 R.S.). A defendant whose conduct is implicated in the report waives any objections to the sufficiency of the report unless the defendant files and serves those objections ...


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