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
DONNIE HEINZEN, Appellee
Appeal from the 129th District Court Harris County, Texas
Trial Court Cause No. 2017-33241
consists of Justices Christopher, Hassan, and Poissant.
the Texas Medical Liability Act ("the Act"),
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
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
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.
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"); Memorial Hermann Health System d/b/a
Memorial Hermann-Katy Hospital ("Memorial
Hermann"), and Dr. Randolph Whitford. 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.
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.
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.
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.
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.
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.
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.
Timeliness of the Supplemental Expert Reports
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.
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.
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.
The Alleged Oral Order of December 11, 2017
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
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." When used in the first person, "going
to," "shall," and "will" are all
verbs in the future tense. 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.
The Signed Orders
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?
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
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.
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.
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
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.
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.
The only supplemental material included in our review of Dr.
Lucas's motion to dismiss is Dr. Rushing's second
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.
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.
Dr. Whitford's Appeal
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.
Memorial Hermann's Appeal
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.