Opinion issued on February 12, 2004.
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00104-CV
____________
DARTANIER PATTON, Appellant
V.
HEATHSOUTH OF HOUSTON, INC. D/B/A HEALTHSOUTH REHABILITATION HOSPITAL OF NORTH HOUSTON, Appellee
On Appeal from the 61st District Court
Harris County, Texas
Trial Court Cause No. 2002-06273
MEMORANDUM OPINION
Appellant, Dartanier Patton, sued appellee, HealthSouth of Houston, Inc. d/b/a HealthSouth Rehabilitation Hospital of North Houston (HealthSouth), for medical malpractice. Patton brings a single issue challenging the dismissal of his claims with prejudice for the failure to timely file an expert report in compliance with article 4590i, sections 13.01(d) and (e) of the Medical Liability and Insurance Improvement Act. See former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d) (Vernon Supp. 2003). Patton contends that the trial court abused its discretion by refusing to grant him additional time, pursuant to article 4590i, section 13.01(g). See former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(g) (Vernon Supp. 2003). We affirm.
Background
Patton filed his original petition on January 25, 2002, seeking recovery against HealthSouth based on claims of medical malpractice. Patton alleged that, as a result of the application of heat during his physical therapy at a hospital owned by HealthSouth, he suffered thermal burns to his body. Patton was required to file an expert report in support of his claims no later than July 23, 2002. See former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d) (Vernon Supp. 2003). Instead, on July 23, 2002, Patton filed a motion to extend the deadline to file the expert report until August 23, 2002. See former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(f) (Vernon Supp. 2003). The trial court granted Patton’s motion. On August 23, 2002, the last day of the requested extension, Patton filed the expert report and curriculum vitae of Mark Kreit, M.D.
On September 5, 2002, HealthSouth moved to dismiss Patton’s petition with prejudice for the failure to file an expert report in compliance with sections 13.01(e) and (l) of article 4590i. As the basis for its motion, HealthSouth argued that the contents of Dr. Kreit’s report did not meet the requirements of an expert report under sections 13.01(d) or (r)(6) of article 4590i and that the report did not represent a good faith effort to comply with this statute. A hearing was set on the motion for October 18, 2002. On October 17, 2002, at 11:22 p.m., Patton filed (1) another motion to extend the time to furnish an expert report and (2) an amended expert report of Dr. Kreit. See former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(g) (Vernon Supp. 2003).
After a hearing was held on the pending motions, the trial court denied Patton’s motion to extend time and granted HealthSouth’s motion to dismiss Patton’s petition with prejudice. The trial court’s order stated that the motion to extend time was denied “as the Plaintiff failed to show that his failure to comply with the [a]rticle 4590i [section] 13.01 deadline for filing an expert report was the result of an accident or mistake and was not intentional or the result of conscious indifference.”
Article 4590i, Section 13.01(g)
Former section 13.01(d) of article 4590i requires that medical malpractice claimants file an expert report in support of their claims “[n]ot later than the later of the 180th day after the date of which a health care liability claim is filed or the last day of any extended period” established under subsection (f) or (h) of section 13.01. Former Tex. Rev. Civ. Stat. Ann. art. 4590i, §§ 13.01(d), (f), (h) (Vernon Supp. 2003). Section 13.01(g) provides a possible grace period for the filing of expert reports required by section 13.01(d). This section applies to a claimant who has actually filed a report but the contents of the report fail to comply with the requirements of article 4590i. See Walker v. Gutierrez, 111 S.W.3d 56, 65-66 (Tex. 2003). Section 13.01(g) requires that the trial court grant the claimant a 30-day grace period to comply with section 13.01(d) if the failure to file the required expert report was “not intentional or the result of an accident or mistake.” Section 13.01(g) states:
Notwithstanding any other provision of this section, if a claimant has failed to comply with a deadline established by Subsection (d) of this section and after hearing[,] the court finds that the failure of the claimant or the claimant’s attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection. A motion by a claimant for relief under this subsection shall be considered timely if it is filed before any hearing on a motion by a defendant under Subsection (e) of this section
Former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(g) (emphasis added). Because section 13.01(g) applies when a party has failed to comply with the deadline established by subsection (d), the failure to grant a grace period will result in the dismissal of the case as a sanction pursuant to section 13.01(e). Walker, 111 S.W.3d at 62.
Standard of Review
We review a trial court’s section 13.01(g) grace-period determination under the abuse-of-discretion standard. Id.; Williams v. Chisolm, 111 S.W.3d 811, 814 (Tex. App.—Houston [1st Dist.] 2003, no pet.). To establish an abuse of discretion, the challenging party must show that, in light of all the circumstances of the case, the trial court acted arbitrarily or unreasonably, without reference to any guiding rules and principles. Walker, 111 S.W.3d at 62; Chisolm, 111 S.W.3d at 814. An appellate court may not substitute its own judgment for the trial court’s judgment. Walker, 111 S.W.3d at 62.
Analysis
As addressed above, former article 4590i, section 13.01(g) required the trial court to grant the grace period to file an expert report if the trial court determined that the initial failure to file the report “was not intentional or the result of conscious indifference but was the result of an accident or mistake.” Former Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(g). As the supreme court noted in Walker v. Gutierrez, this “accident or mistake” standard is the same standard that governs setting aside a default judgment or reinstating a case dismissed for want of prosecution. 111 S.W.3d at 63 (citing Bank One Tex., N.A. v. Moody, 830 S.W.2d 81, 84 (Tex. 1992) (default judgment) and Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992) (dismissal for want of prosecution)). Therefore, “some mistakes of law may negate a finding of intentional conduct or conscious indifference” and thus entitle a medical-malpractice claimant to an article 4590i, section 13.01(g) grace period, but “‘not every act of a defendant that could be characterized as a mistake of law is a sufficient excuse.’” Walker, 111 S.W.3d at 64. “When a claimant files a report that omits one or more of section 13.01(r)(6)’s required elements, a purportedly mistaken belief that the report complied with the statute does not negate a finding of ‘intentional or conscious indifference’. . . . [S]uch a mistake is not a mistake of law that entitles a claimant to a section 13.01(g) grace period.” Id. at 65.
In determining whether the failure to comply with the statute by filing an expert report was not due to intentional disregard or conscious indifference but to accident or mistake, we must look to the knowledge and acts of the claimant, as demonstrated by the record. Id. at 64. If the record establishes that the claimant’s assertions supporting a mistake of law are not controverted, the claimant will satisfy his or her burden, provided, however, that the claimant sets forth facts that, if true, negate intentional or consciously indifferent conduct. Id.; Chisolm, 111 S.W.3d at 816. The plaintiff bears the burden of supporting his claim of accident or mistake with evidence. See Powers v. Memorial Hermann Hosp. Sys., 81 S.W.3d 463, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). Accordingly, we now address Patton’s evidence of accident or mistake.
Evidence of Accident or Mistake
In his second motion to extend time, Patton sought the article 4590i, section 13.01(g) grace period based on the allegation that his secretary mistakenly filed a “draft” version of the expert report, the contents of which he apparently concedes did not comply with the requirements of sections 13.01(d) or (r)(6) of article 4590i. However, beyond the allegations contained in his motion, there is nothing in the record establishing that Patton offered any evidence to the trial court that this filing was the result of an accident or mistake. The record does not contain a transcript of the testimony at the hearing nor does the record contain any supporting affidavits presented to the trial court prior to its ruling on Patton’s second motion. Patton’s pleadings cannot be considered as evidence of accident or mistake, even if they are sworn or verified. See Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995). Patton has the burden to present a record on appeal that shows the error about which he complains. Montoya v. State, 872 S.W.2d 24, 25 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Without a reporter’s record, the appellate court will indulge all presumptions in favor of the trial court’s findings and the judgment. Univ. of Houston-Clear Lake v. Marsh, 981 S.W.2d 912, 916 (Tex. App.—Houston [1st Dist.] 1998, no pet.).
After applying the standard established by the supreme court in Walker v. Gutierrez, we hold that the existing record of this case establishes that the trial court did not abuse its discretion in finding that Patton’s proffered excuse was incredible, or in finding that Patton’s counsel’s refusal to comply with the expert-report requirement of former article 4590i, section 12.01(d) was intentional and not accidental. Accordingly, the trial court did not abuse its discretion by refusing to grant Patton the grace period authorized by former article 4590i, section 13.01(g) on a proper showing of a mistake of law or accident.
We overrule Patton’s sole issue.
Conclusion
We affirm the judgment.
George C. Hanks, Jr.
Justice
Panel consists of Justices Nuchia, Alcala, and Hanks.