Court of Appeals of Texas, Fifth District, Dallas
DALLAS COUNTY HOSPITAL DISTRICT D/B/A PARKLAND HEALTH AND HOSPITAL SYSTEM, Appellant
CHARLIE WILSON, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF DEBRA WILSON, Appellee
Appeal from the 101st Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-15-09089.
Justices Myers, Osborne, and Nowell
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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. See Tex.
Civ. Prac. & Rem. Code Ann. § 74.351(a).
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)
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
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).
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).
MOTION TO DISMISS
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.