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Methodist Hospitals of Dallas v. Nieto

Court of Appeals of Texas, Fifth District, Dallas

August 22, 2019


          On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-02115

          Before Justices Myers, Osborne, and Nowell



         In consolidated interlocutory appeals, appellant Methodist Hospitals of Dallas d/b/a Methodist Health System and d/b/a Methodist Dallas Medical Center (Methodist) challenges the trial court's orders denying its first and second motions to dismiss the health care liability claims of appellees Jesus Nieto, Richardo Felipe Nieto, Jesse Nieto, and Orlando Nieto, each individually and as heirs of the estate of Mary Jessie Alvarez, deceased (the Nietos). Methodist argues that the trial court abused its discretion in denying the motions to dismiss because the expert reports were so lacking in substance they constituted "no report" at all, and because the amended expert report did not address how and why the actions or inactions of Methodist and its nurses caused the premature discharge of Mary Jessie Alvarez (Mrs. Alvarez). We affirm.

         Background and Procedural History

         On February 15, 2016, Dr. Theresa Patton, M.D., assisted by Dr. Melodi Reese-Holley, M.D., performed a robotic-assisted total laparoscopic hysterectomy with bilateral salpingectomy on Mary Jessie Alvarez at the Methodist Dallas Medical Center. The procedure began at 12:39 p.m. and ended at 2:40 p.m., and following post-operative recovery, Mrs. Alvarez was discharged at 8:30 p.m. She continued to experience severe pain after arriving home, and the next day her husband called the doctors' surgical practice, Kessler Women's Healthcare, and complained that his wife was suffering severe post-surgical pain. Dr. Reese-Holley instructed Mr. Alvarez to double his wife's pain medication. Mrs. Alvarez's family discovered her in a state of "extreme distress" early on the morning of February 17, 2016. After she was transported to Arlington Memorial Hospital, resuscitative efforts failed and Mrs. Alvarez was pronounced dead at 9:24 a.m. on February 17, 2016. The cause of death was peritonitis and small bowel perforation.

         Mrs. Alvarez's husband and children (the Nietos), the appellees in these consolidated appeals, filed suit against the two doctors who performed the surgery, their surgical practice, and appellant Methodist. The Nietos pleaded negligence causes of action against Dr. Patton, Dr. Reese-Holley, Kessler Women's Healthcare, and Methodist. The Nietos' negligence claims against Methodist included both direct and vicarious claims. The Nietos alleged that Methodist's "acts and/or omissions" were "singularly and/or severally a proximate cause of the occurrence in question and resulted in Decedent's death and damages to Plaintiffs." The Nietos asserted both survival and wrongful death claims and sought actual damages.

         The Nietos timely served expert reports prepared by Dr. Steven McCarus, M.D., and Patricia Spellman-Foley, R.N. Methodist filed objections to these expert reports and moved to dismiss, arguing they were so deficient regarding causation they constituted "no report" at all as to Methodist. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b). The trial court held a hearing on the motion to dismiss and it signed an order on August 27, 2018, granting the Nietos a thirty-day extension of time to cure any deficiencies. See id. § 74.351(c). The trial court's order granting the thirty-day extension is the subject of Methodist's first accelerated interlocutory appeal, docketed under appellate cause number 05-18-01073-CV.

         The Nietos timely filed an amended report from Dr. McCarus, and Methodist again challenged it as inadequate and moved to dismiss. The trial court held a hearing on the second motion to dismiss and on October 29, 2018, it signed an order denying Methodist's second motion. Methodist filed another accelerated, interlocutory appeal from that order, and this second appeal was originally docketed under appellate cause number 05-18-01381-CV.

         On April 10, 2019, this Court consolidated appellate cause number 05-18-01381-CV into cause 05-18-01073-CV, and transferred all documents in cause 05-18-01381-CV (which is now a closed case) into cause number 05-18-01073-CV.


         1. First Motion to Dismiss

         In its first interlocutory appeal, Methodist asserted that the trial court abused its discretion in denying Methodist's first motion to dismiss because the Nietos' expert reports failed to provide a causal link between any acts or omissions by Methodist or its staff and the injuries allegedly sustained by Mrs. Alvarez. Hence, the reports were so lacking in substance they constituted "no report" as to Methodist, and the trial court had no discretion but to dismiss the case with prejudice.

         We review a trial court's decision denying a motion to dismiss based on the adequacy of an expert report for an abuse of discretion. Abshire v. Christus Health Se. Tex., 563 S.W.3d 219, 223 (Tex. 2018) (per curiam). A trial court abuses its discretion if it acts without reference to guiding rules or principles. Van Ness v. ETMC First Physicians, 461 S.W.3d 140, 142 (Tex. 2015). In analyzing a report's sufficiency under this standard, we consider only the information contained within the four corners of the report. Abshire, 563 S.W.3d at 223.

         Chapter 74 of the Texas Civil Practice and Remedies Code, also known as the Texas Medical Liability Act, requires health care liability claimants to serve an expert report upon each defendant not later than 120 days after that defendant's answer is filed. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a); Abshire, 563 S.W.3d at 523. Under the Act, a defendant is entitled to dismissal of a healthcare liability claim if, within 120 days of filing suit, the defendant is not served with an expert report showing the claim has merit. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a), (b); Post Acute Medical, LLC v. Montgomery, 514 S.W.3d 889, 892 (Tex. App.--Austin 2017, no pet.). The Act has specific requirements for an adequate expert report and requires "an objective good faith effort" be made to comply with the requirements, but it also authorizes the trial court to grant one thirty-day extension for the claimant to cure deficiencies in an otherwise timely filed expert report. See id. § 74.351(c), (1); Post Acute Medical, 514 S.W.3d at 892. "The trial court should err on the side of granting the additional time and must grant it if the deficiencies are curable." Post Acute Medical, 514 S.W.3d at 892 (footnotes omitted).

         "Section 74.351 distinguishes between a report that is timely served but deficient and when no report is served." Villarreal v. Fowler, 526 S.W.3d 633, 635 (Tex. App.-Fort Worth 2017, no pet.). "If a report is timely served but deficient, the trial court may grant an extension to cure the deficiency, and no appeal lies from the extension order." Id. (citing Tex. Civ. Prac. & Rem. Code Ann. §§ 74.351(c), 51.014(a)(9); Ogletree v. Matthews, 262 S.W.3d 316, 320-21 (Tex. 2007)); see also Taton v. Taylor, No. 02-18-00373-CR, 2019 WL 2635568, at *8 (Tex. App.-- Fort Worth June 27, 2019, no pet.) (mem. op). If, however, no report "is timely served, the trial court has no option but to dismiss the claim, and an appeal lies from the trial court's failure to do so, even if it grants an extension." Villareal, 526 S.W.3d at 636 (citing Tex. Civ. Prac. & Rem. Code Ann. §§ 74.351(b), 51.014(a)(9); Badiga v. Lopez, 274 S.W.3d 681, 685 (Tex. 2009)).

         In distinguishing between a deficient report and no report at all, we are guided by the Texas Supreme Court's decision in Scoresby v. Santillan, 346 S.W.3d 546 (Tex. 2011). "While the Act thus contemplates that a document can be considered an expert report despite its deficiencies, the Act does not suggest that a document utterly devoid of substantive content will qualify as an expert report." Id. at 549. ...

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