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Memorial Hermann Health System v. Heinzen

Court of Appeals of Texas, Fourteenth District

August 29, 2019

MEMORIAL HERMANN HEALTH SYSTEM, INDIVIDUALLY AND D/B/A MEMORIAL HERMANN-KATY HOSPITAL; MIKAEL LUCAS, M.D.; MIKAEL LUCAS, M.D., PLLC; RANDOLPH WHITFORD, M.D.; AND EYES OVER TEXAS EYE CARE P.A., Appellants
v.
DONNIE HEINZEN, Appellee

          On Appeal from the 129th District Court Harris County, Texas Trial Court Cause No. 2017-33241

          Panel consists of Justices Christopher, Hassan, and Poissant.

          OPINION

          TRACY CHRISTOPHER JUSTICE.

         Under the Texas Medical Liability Act ("the Act"), [1] a medical-negligence claim is subject to dismissal on the motion of the defendant physician or health-care provider if the claimant fails to timely serve reports by qualified experts opining that the defendant's breach of the applicable standard of care caused the harm alleged. Appellee Donnie Heinzen brought medical-negligence claims after she suffered permanent vision loss from acute angle-closure glaucoma, and she alleges that the damage would have been minimal and reversible but for the breaches of the respective standards of care by a hospital's emergency-room nurses, an emergency-room doctor, and the ophthalmologist who examined her in the hospital. The various defendants challenged some or all of Heinzen's four expert reports, and the trial court denied their respective motions to dismiss.

         On appeal, the defendants argue that the trial court improperly gave Heinzen three 30-day extensions to serve the required expert reports rather than the single 30-day extension authorized by the Act, and that the trial court improperly considered expert reports served after the initial extension expired. Some defendants also challenge the qualifications of a given report's author and the adequacy of the reports themselves.

         We conclude that the trial court did not give Heinzen a 30-day extension from the date of the oral hearing on the defendants' objections as they contend, and that each of the trial court's three signed orders granted Heinzen a 30-day extension, beginning from the date the order was signed, to cure the original expert report's deficiencies concerning the defendant or defendants named in the order. We further conclude that Dr. David Tasker was qualified to render the expert opinions he expressed, and that his opinion or opinions applicable to each defendant before us satisfied the Act's requirements. We accordingly affirm the trial court's orders denying the motions to dismiss.

         I. Background

         Heinzen contends that she sought treatment for angle-closure glaucoma from physicians and health-care providers Dr. Mikael Lucas and Mikael Lucas M.D., PLLC (collectively, "Dr. Lucas");[2] Memorial Hermann Health System d/b/a Memorial Hermann-Katy Hospital ("Memorial Hermann"), and Dr. Randolph Whitford.[3] According to the allegations in Heinzen's petition, these individuals and entities, whom we refer to collectively as "the Providers," failed to timely recognize and treat Heinzen's angle-closure glaucoma, and the delay in treatment caused permanent damage to Heinzen's retina and loss of her visual field.

         After Heinzen served the Providers with the original expert report and curriculum vitae of board-certified ophthalmologist Dr. David I. Tasker, the Providers timely objected to the report's sufficiency. Memorial Hermann and Dr. Lucas additionally objected that Dr. Tasker was not qualified to render an expert opinion. All of the Providers contend that at the December 11, 2017, hearing on their objections, the trial court orally granted Heinzen a 30-day extension-that is, until January 10, 2018-to supplement her expert report. Heinzen served no supplemental expert reports by that date.

         On January 24, 2018, the trial court signed two orders, each of which granted Heinzen a 30-day extension to cure any defects in the expert report. The two orders differ only in that one order recites that the trial court considered Memorial Hermann's "Objections to Plaintiff's Expert Report, the response, and the arguments of counsel," and the other substitutes Dr. Whitford's name for Memorial Hermann's. Thirty days after the trial court signed the orders, Heinzen supplemented Dr. Tasker's original expert report with a second report by Dr. Tasker and with the report and curriculum vitae of Dr. Lige B. Rushing Jr., who is board-certified in internal medicine, rheumatology, and geriatrics. Both of Dr. Tasker's reports address the conduct of all of the Providers, but Dr. Rushing offered no opinion regarding Dr. Whitford.

         The Providers objected that these supplemental reports served on February 23, 2018, were untimely and could not be considered. Drs. Whitford and Lucas also objected that Dr. Tasker's second report did not adequately address the standard of care, breach, and causation, and Dr. Lucas repeated those objections as to Dr. Rushing's report. Memorial Hermann reurged its objection to Dr. Tasker's qualifications and objected that both of the February 2018 reports contained conclusory opinions of causation. All of the Providers moved for dismissal of the respective claims against them.

         On February 28, 2018, the trial court signed a third order granting Heinzen a 30-day extension. It is identical to the trial court's two previous orders except that the Provider named is Dr. Lucas. On March 30, 2018, Heinzen served the parties with a second report by Dr. Rushing. This report was directed only to the alleged negligence of Dr. Lucas and to Dr. Rushing's qualifications to opine on that issue. Dr. Lucas again objected and moved for dismissal.

         The trial court overruled all objections to the supplemental expert reports and denied the Providers' respective motions to dismiss. The Providers bring this interlocutory appeal challenging those rulings.

         II. Issues Presented

         All of the Providers argue in their first issue that the trial court abused its discretion by giving Heinzen three 30-day extensions to supplement her expert report and by considering untimely reports. Memorial Hermann also asserts in its second issue that Dr. Tasker is not qualified to render an expert opinion regarding the conduct of the nursing staff, and that the reports of Drs. Tasker and Rushing are conclusory as to causation. In his second issue, Dr. Lucas challenges both experts' qualifications and argues that their reports do not adequately address the applicable standard of care, breach, or causation.

         III. Timeliness of the Supplemental Expert Reports

         A claimant under the Act must serve an expert's report and curriculum vitae upon each defendant within 120 days after the defendant answers the suit. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). The defendant must file and serve any objections to the report's sufficiency within twenty-one days after the later of (a) the date the defendant answered the suit, or (b) the date the report was served. See id. If the report is deficient, the trial court may grant the claimant one 30-day extension to cure deficiencies. Id. § 74.351(c). "If the claimant does not receive notice of the court's ruling granting the extension until after the 120-day deadline has passed, then the 30-day extension shall run from the date the plaintiff first received the notice." Id.

         All of the Providers answered the suit on June 9, 2017, and Heinzen timely served Dr. Tasker's curriculum vitae and first expert report on all of the Providers on August 2, 2017. The Providers timely objected, and the trial court held an oral hearing on their objections on December 11, 2017, which was more than 120 days after the Providers answered the suit. Thus, the 30-day extension began to run from the date Heinzen first received notice of the trial court's ruling granting the extension to cure the report's deficiencies as to a given Provider.

         The Providers contend that Heinzen received such notice when the trial court orally granted Heinzen's request for an extension at the hearing, and that the trial court improperly granted second and third extensions in January and February 2018. Based on this view of events, the Providers argue that the trial court could not properly consider any of Heinzen's three supplemental reports or Dr. Rushing's curriculum vitae. Heinzen responds that the trial court did not orally grant an extension at the hearing, and that in each of the trial court's three signed orders, it granted a single 30-day extension to supplement her expert report as to a different Provider.

         A. The Alleged Oral Order of December 11, 2017

         In asserting that the trial court granted Heinzen an extension during the oral hearing on their objections, the Providers rely on these two excerpts from the transcript:

MR. HELLER [Heinzen's counsel]: Your Honor, of course what we're asking for is if-if you feel that any of the reports as to any specific defendants [is] deficient, we ask-we're requesting a 30-day-
THE COURT: I will give you the 30 days.
. . .
THE COURT: So-so I'm going to go ahead and grant the objection and give you 30 days, and I'll-I'll sign the order.

         By this language, the trial court did not grant an extension. The trial court instead stated it "will give you the 30 days"; that it was "going to go ahead and grant the objection" and that it shall or will "sign the order."[4] When used in the first person, "going to," "shall," and "will" are all verbs in the future tense.[5] Thus, the words the trial court used at the hearing expressed its intention to grant an extension in the future. Cf. State v. Naylor, 466 S.W.3d 783, 788 (Tex. 2015) ("A trial court renders judgment orally when it announces rendition as a present act and not as an 'intention to render judgment in the future.'" (quoting S & A. Rest. Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995) (per curiam)). The oral statements were ineffective to grant the extension. See Reese v. Piperi, 534 S.W.2d 329, 330 (Tex. 1976) (trial court's statements "I have to grant a new trial" and "I will grant it" did not constitute oral rendition but expressed the trial court's intention to render judgment in the future); Inwood Forest Cmty. Improvement Ass'n. v. Arce, 485 S.W.3d 65, 71-72 (Tex. App.-Houston [14th Dist.] 2015, pet. denied) (trial judge's statement "that she was 'going to grant the motions to dismiss'" was "ineffective to constitute a ruling"); see also Lopez v. Brown, 356 S.W.3d 599, 602-03 (Tex. App.-Houston [14th Dist.] 2011, no pet.) ("[T]he notice [of the court's ruling] provided for in section 74.351(c) must be in the form of a written order, rather than a trial court's mere oral pronouncement from the bench."). We therefore reject the Providers' argument that Heinzen had to serve any supplemental expert reports within thirty days after the hearing, and we overrule this part of the Providers' first issue.

         B. The Signed Orders

         The trial court signed two orders on January 24, 2018 ("the January Orders"), each granting a 30-day extension to cure any deficiencies in Dr. Tasker's original August 2018 report. Pursuant to those orders, Heinzen served the Providers on February 23, 2018, with Dr. Tasker's second report and with Dr. Rushing's curriculum vitae and first report. On February 28, 2018, the trial court signed a third order ("the February Order") granting Heinzen another 30-day extension to cure any deficiencies in the original expert report, and in accordance with that order, Heinzen served the Providers on March 30, 2018, with Dr. Rushing's second report. The question is, which materials are included within the scope of our review in determining whether the trial court erred in denying a given Provider's motion to dismiss?

         Under the Act, the deadline to serve an expert report is specific to a given Provider. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) ("[A] claimant shall, not later than the 120th day after the date each defendant's original answer is filed, serve on that party or the party's attorney one or more expert reports, with curriculum vitae . . . for each physician or health care provider against whom a liability claim is asserted.") (emphasis added). If the report-that is, the report as to "that party"-is deficient, the trial court may grant a single 30-day extension to cure the deficiency as to "that party." Id. § 74.351(c). Thus, in determining whether the trial court erred in denying each Provider's motion to dismiss, we consider (1) the materials served within 120 days of that Provider's answer, and (2) the materials served within thirty days after the trial court signed an order granting Heinzen an extension to cure the initial report's deficiencies as to that Provider.

         The first set of materials is the same for all Providers: all of the Providers answered the suit on the same day, and within 120 days, Heinzen served all of the Providers with Dr. Tasker's curriculum vitae and his first report, in which he opined on the conduct of each Provider. In contrast, the supplemental materials included within the scope of our review are different for different providers.

         Heinzen contends that the trial court's January Orders granted her a 30-day extension to cure any deficiencies in Dr. Tasker's first report as it pertains to Memorial Hermann and Dr. Whitford, and the February Order granted her a 30-day extension to cure deficiencies in Dr. Tasker's first report with respect to Dr. Lucas. We agree, and that conclusion dictates the scope of our review as to the Providers' appeals of the denials of their respective motions to dismiss.

         1. The supplemental material included in our review of Memorial Hermann's and Dr. Whitford's motions to dismiss consists only of Dr. Tasker's second report, Dr. Rushing's curriculum vitae, and Dr. Rushing's first report.

         Of the two January Orders, one states that the trial court considered Memorial Hermann's objections, the response, and the arguments of counsel, and the other states that the trial court considered Dr. Whitford's objections, the response, and the arguments of counsel. By their terms, these orders granted Heinzen thirty days to cure the original report's deficiencies pertaining to Memorial Hermann and Dr. Whitford. If the trial court intended in its January Orders to grant Heinzen an extension to cure the deficiencies in Dr. Tasker's first report with respect to all of the Providers, there would have been no need to sign two orders on the same day, or to sign a total of three orders, each referring to a different Provider.[6]

         Because Heinzen served Dr. Tasker's second report and Dr. Rushing's first report and curriculum vitae thirty days after the trial court signed the January Orders, the trial court could properly consider these materials when ruling on Memorial Hermann's and Dr. Whitford's respective objections and motions to dismiss. We therefore overrule Memorial Hermann's and Dr. Whitford's challenge to the timeliness of these reports, and we include them within the scope of our review as to these Providers. Because Dr. Rushing's second report was served after the January Orders' extension expired, we sustain Memorial Hermann's and Dr. Whitford's challenge to the timeliness of that report, and we do not include it within the scope of our review of the trial court's denials of their motions to dismiss.

         2. The only supplemental material included in our review of Dr. Lucas's motion to dismiss is Dr. Rushing's second report.

         The February Order contains the same language as the January Orders, except that it refers only to Dr. Lucas. Because Heinzen served Dr. Rushing's second report within thirty days after the trial court signed this order, we overrule Dr. Lucas's challenge to the timeliness of that report, and we include it in the scope of our review in determining whether the trial court erred in denying Dr. Lucas's motion to dismiss.

         On the other hand, we do not consider Dr. Tasker's second report, Dr. Rushing's curriculum vitae, or Dr. Rushing's first report, because these materials were neither served within 120 days of Dr. Lucas's answer nor served within thirty days after the trial court granted Heinzen an extension to cure deficiencies in the original expert report regarding Dr. Lucas. We sustain Dr. Lucas's challenge to the timeliness of this material, and we do not include it within the scope of our review of the denial of his motion to dismiss.

         IV. Dr. Whitford's Appeal

         Dr. Whitford challenges the denial of his motion to dismiss only on the ground that the trial court improperly considered the supplemental material served on February 23, 2018. Because we have concluded that this material was timely served, and Dr. Whitford does not contend the reports are otherwise deficient, we affirm the order denying Dr. Whitford's motion to dismiss.

         V. Memorial Hermann's Appeal

         Memorial Hermann contends that Dr. Tasker is unqualified to offer an expert opinion regarding the conduct of the hospital nurses, and that Drs. Tasker and Rushing offer only conclusory statements of causation. When reviewing the trial court's rulings on an expert's qualifications and the adequacy of the expert's report, we apply the abuse-of-discretion standard. San Jacinto Methodist Hosp. v. Bennett, 256 S.W.3d 806, 811 (Tex. App.-Houston [14th Dist.] 2008, no pet.). A trial court abuses its discretion if it acts without reference to guiding rules or principles such that its ruling is arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). A trial court does not abuse its discretion merely because an appellate justice in similar circumstances would have decided the matter differently. Id. at 242.

         A. Dr. ...


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