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In re Baylor College of Medicine

Court of Appeals of Texas, First District

July 30, 2019

IN RE BAYLOR COLLEGE OF MEDICINE, Relator IN RE TEXAS CHILDREN'S HOSPITAL, Relator

          Original Proceedings on Petitions for Writ of Mandamus

          Panel consists of Justices Keyes, Kelly, and Goodman

          MEMORANDUM OPINION

          PER CURIAM

         Relator, Baylor College of Medicine ("BCOM"), filed a petition for a writ of mandamus seeking to compel the respondent district judge to rule on BCOM's pending motion to dismiss for failure to serve an expert medical report under Chapter 74 of the Texas Civil Practice and Remedies Code, which was assigned to 01-19-00105-CV. Relator Texas Children's Hospital ("TCH"), BCOM's co-defendant below, filed a similar mandamus petition also seeking to compel the respondent to rule on its pending Chapter 74 motion to dismiss, which was assigned to 01-19-00142-CV.[1] This Court requested responses in both cases, but none were timely filed.

         Because the respondent has not ruled on the motions to dismiss within a reasonable time, under the circumstances, we conditionally grant the two petitions.

         Background

         A. Procedural History in the Trial Court

         On August 2, 2017, real party in interest ("RPI") Melanie Harris filed her original petition in Harris County against BCOM and TCH alleging libel, civil conspiracy, abuse of process, fraud, and intentional infliction of emotional distress claims. Harris claims that, after she moved to Houston from New York City in March 2014, TCH physicians, on March 26, 2014, incorrectly diagnosed that her minor daughter, N.S., appeared "malnourished." Then Harris contends that TCH physicians improperly reported their misdiagnosis to the New York City Administration for Children's Services ("ACS") who issued an Amber Alert that caused her to return to New York City where ACS temporarily removed N.S., allegedly just for TCH's bills to be paid.

         After RPI Harris failed to serve an expert report on BCOM and TCH in Harris County, as required by Texas Civil Practice and Remedies Code § 74.351 within 120 days of the filing of BCOM's and TCH's answers on August 31, 2017, BCOM filed its original motion to dismiss on January 11, 2018, and TCH filed its similar motion to dismiss on January 15, 2018. On February 9, 2018, RPI Harris filed a combined response to the relators' motions to dismiss contending that, because her lawsuit was not a health care liability claim subject to Chapter 74, no expert report was required.

         On March 7, 2018, the respondent sua sponte passed the hearing on relators' motions to dismiss because they did not contain certificates of conference. Relator TCH filed its "Second Amended Motion to Dismiss Pursuant to CPRC § 74.351(b)" on March 21, 2018, and relator BCOM filed its "Amended and Opposed Motion to Dismiss" on March 27, 2018, both with certificates of conference.

         On May 3, 2018, an oral hearing was held on relators' amended motions to dismiss, but RPI Harris's counsel failed to appear. At the end of the hearing, the respondent stated that the issues appeared straightforward, but she took the motions under advisement and indicated that she anticipated entry of an order granting the motions within one week, and that counsel should email the court if no order was entered by then. Since that hearing, relators have emailed or filed several requests for rulings from the respondent on their motions to dismiss from May 2018-February 2019, but the respondent has yet to rule. These requests included emails on May 10, 2018, and July 2, 2018, at status conferences on August 13 and 27, 2018, with its August 30, 2018 and February 13, 2019 pre-trial submissions, pursuant to the Docket Control Order, and an October 26, 2018 "Motion for Entry of Order," but the respondent reset the bench trial date two times until March 4, 2019.

         B. Procedural History in this Court

         On February 13, 2019, relator BCOM filed this mandamus petition seeking to compel the respondent to rule on its pending Chapter 74 motion to dismiss for failure to timely serve an expert report. BCOM claims that it has incurred unnecessary litigation expenses due to respondent's failure to rule, and that it lacks an adequate remedy because no interlocutory appeal may be filed until an order is signed. BCOM also filed a motion for temporary relief to stay the underlying proceedings including the March 4, 2019 bench trial setting, pending this Court's disposition of its petition. See Tex. R. App. P. 52.10(a). This Court's February 15, 2019 Order granted the motion and requested a response to the petition, but none has been timely filed.

         On March 1, 2019, relator TCH filed a similar mandamus petition also seeking to compel the respondent to rule on its pending Chapter 74 motion to dismiss in the same underlying cause number 2017-49635. TCH similarly claims that it has incurred unnecessary litigation expenses due to respondent's failure to rule, and that it lacks an adequate remedy because no interlocutory appeal may be filed until an order is signed. See Tex. Civ. Prac. & Rem. Code ยง ...


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