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Dallas County Hospital District v. Wilson

Court of Appeals of Texas, Fifth District, Dallas

August 7, 2019

DALLAS COUNTY HOSPITAL DISTRICT D/B/A PARKLAND HEALTH AND HOSPITAL SYSTEM, Appellant
v.
CHARLIE WILSON, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF DEBRA WILSON, Appellee

          On Appeal from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-09089.

          Before Justices Myers, Osborne, and Nowell

          MEMORANDUM OPINION

          LESLIE OSBORNE JUSTICE.

         In this interlocutory appeal, Dallas County Hospital District d/b/a Parkland Health and Hospital System (the Hospital) appeals the 101st Judicial District Court's (state district court) order denying its motion to dismiss the lawsuit brought pursuant to Chapter 74 of the Texas Civil Practice and Remedies Code by Charlie Wilson, individually and as representative of the Estate of Debra Wilson (Wilson). In its sole issue on appeal, the Hospital argues the state district court erred when it denied the Hospital's motion to dismiss because the 120-day deadline for Wilson to serve an expert report had expired. We conclude the state district court erred. The state district court's order denying the Hospital's motion to dismiss is reversed, an order dismissing Wilson's claims with prejudice is rendered, and the case is remanded to the state district court to award the Hospital relief under section 74.351(b) of the Texas Civil practice and Remedies Code.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On November 1, 2007, Debra Wilson had surgery, specifically a left heart catheterization procedure. During the procedure, a piece of the plastic catheter broke and remained in Debra Wilson's body. Debra Wilson contended that she was never informed that a fragment of the catheter remained inside of her. On August 18, 2014, Debra Wilson went to the emergency room due to abdominal pain and a CT scan revealed a foreign body in her thoracic and abdominal aorta. As a result, Debra Wilson had additional surgery and treatment for the injuries she sustained from the catheter fragment.

         On August 11, 2015, Debra Wilson filed her original petition in state district court against the Hospital and "John Doe, M.D.," for injuries sustained during a heart catheterization procedure. She alleged claims against the Hospital for negligence, lack of informed consent, fraudulent nondisclosure, negligent condition or use of tangible personal property, and vicarious liability for the actions of its medical staff. Also, she alleged claims against "Dr. John Doe" for breach of the duty of care, lack of informed consent, and fraudulent nondisclosure. On September 11, 2015, the Hospital filed its plea to the jurisdiction, motion for summary judgment on the basis that Debra Wilson's claims were barred by the statute of limitations, and original answer generally denying the allegations and asserting sovereign or governmental immunity. This triggered the 120-day deadline for Debra Wilson to file her expert report by January 11, 2016.[1] See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a).

         However, on November 13, 2015, before the expiration of the 120-day deadline, Debra Wilson filed her first amended petition adding claims alleging, inter alia, violations of 42 U.S.C. §§ 1983, 1985, and 1986, and in the an alternative, an unconstitutional taking under the Fifth Amendment of the Constitution of the United States of America. As a result, on December 11, 2015, ninety-one days after the Hospital filed its original answer, the Hospital filed a notice of removal to federal district court. However, on September 21, 2016, the United States District Court for the Northern District of Texas (federal district court) granted the Hospital's motion to dismiss Debra Wilson's federal claims and remanded the state law claims to the state district court. Wilson v. Dallas Cty. Hosp. Dist., No. 3:15-CV-3942-BF, 2016 WL 5122110 (N.D. Tex. Sept. 21, 2016) (mem. op.).

         On September 27, 2016, the state district court received the order of remand from the federal district court. At some point during the proceedings, Debra Wilson died and Wilson, her surviving spouse, succeeded Debra Wilson as plaintiff in this case. On January 23, 2017, the federal district court issued an order that denied Wilson's motion for new trial, declined to grant his motion to amend his complaint due to lack of jurisdiction, and denied as moot the unopposed notice of suggestion of death and for leave to substitute Wilson as the plaintiff. Wilson v. Dallas Cty. Hosp. Dist., No. 3:15-CV-3942-BF, 2017 WL 5642583 (N.D. Tex. Jan. 23, 2017) (order). On February 8, 2017, Wilson filed an amended unopposed motion to stay the state district court proceedings during the pendency of his federal appeal. On March 23, 2017, 167 days after it received the order of remand from the federal district court, the state district court signed an order staying the state court proceedings. Then, on May 10, 2017, the state district court signed an agreed order to reinstate the state proceedings.[2]

         On October 24, 2017, the United States Court of Appeals for the Fifth Circuit issued an opinion affirming the order that dismissed Debra Wilson's federal claims and affirming as modified the federal district court's order that denied her motion for new trial. Wilson v. Dallas Cty. Hosp. Dist., 715 Fed.Appx. 319 (5th Cir. 2017) (per curiam). Also in the federal suit, Wilson filed a petition for certiorari, which was denied by the U.S. Supreme Court on April 23, 2018. Wilson v. Dallas Cty. Hosp. Dist., 138 S.Ct. 1597 (2018).

         On June 5, 2018, Wilson served his Chapter 74 expert report on the Hospital and on June 7, 2018, he served a second expert report. On June 21, 2018, the Hospital filed a motion to dismiss based on section 74.351(b) alleging that Wilson failed to serve an expert report within 120 days of the Hospital's filing its original answer and challenging the adequacy of the expert reports. On August 7, 2018, Wilson responded to the motion arguing that the removal to federal district court stayed the state district court proceedings and tolled the 120-day deadline for serving his expert report. After a hearing, the state district court denied the Hospital's motion to dismiss on August 21, 2018. This interlocutory appeal followed. See Civ. Prac. & Rem. § 51.014(a)(9).

         II. MOTION TO DISMISS

         In its sole issue on appeal, the Hospital argues the trial court erred when it denied the Hospital's motion to dismiss because the 120-day deadline for Wilson to tender an expert report had expired. It contends that, even if the 120-day deadline was tolled while the case was removed to federal district court, it resumed the day the state district court received the order of remand. As a result, the Hospital maintains that the deadline expired on October 26, 2016. Wilson responds that the section 74.351 "deadline to file an expert report was eliminated" because the case was removed to federal district court. Wilson maintains that the 120-day deadline was tolled while the case remained under federal jurisdiction, including the time he exhausted his federal appellate rights, and did not begin "anew" until May 10, 2018, when the state court proceedings were reinstated by the state district court, which extended the deadline until June 21, 2018. As a result, Wilson contends that his expert reports were timely.

         A. ...


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