Opinion delivered November 3, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-01186-CV
____________
SHARON FRANCIS, AS GUARDIAN OF GODFREY FRANCIS, Appellant
V.
SELECT SPECIALTY HOSPITAL, Appellee
On Appeal from the 61st District Court
Harris County, Texas
Trial Court Cause No. 2003-62349
MEMORANDUM OPINION
Appellant, Sharon Francis, as guardian of Godfrey Francis, challenges the trial court’s order dismissing her medical malpractice lawsuit against appellee, Select Specialty Hospital (“Select Specialty”), because of her failure to provide an expert report, as required by section 74.351 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon 2005). In two issues, Sharon contends that the trial court abused its discretion in granting Select Specialty’s motion to dismiss because she “effectively served” Select Specialty with an expert report by filing the report with the trial court and because Select Specialty waived its objection to challenge the sufficiency of the expert report.
We affirm. Factual and Procedural BackgroundIn her original petition, filed on November 4, 2003, Sharon alleged that, on September 12, 2001, while Godfrey was receiving treatment as a patient under the care of Select Specialty, Godfrey’s teeth and mouth were injured because he was either not properly restrained or was dropped face-first on the floor. She further alleged that Select Specialty failed to properly examine and treat Godfrey’s injuries after being placed on notice of such injuries by his family. Sharon also alleged that Select Specialty was negligent in that it failed, among other acts or omissions, to properly perform medical treatment on Godfrey, failed to recognize Godfrey’s symptoms that required treatment, and failed to properly assess and evaluate Godfrey’s medical needs and condition. Finally, she alleged that, “[t]o the extent that [Godfrey] is unable to fully or accurately describe the specific acts or omissions on the part of [Select Specialty] that caused [Godfrey’s] injuries, nonetheless the instrumentalities that caused those injuries were under the exclusive management and control of [Select Specialty] at the time Plaintiff Godfrey [] was injured.”
On September 15, 2004, Select Specialty filed its answer and its motion to dismiss the claim pursuant to section 74.351. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351. In its motion to dismiss, Select Specialty contended that, because Sharon filed her original petition on November 4, 2003, the 120-day deadline for serving an expert report in a health care liability claim “expired on or about May 3, 2004.” Select Specialty argued that the case should be dismissed because Sharon had not provided an expert report to Select Specialty within the 120-day deadline. Select Specialty also asserted that, although section 74.351(c) provides for one 30-day extension where an expert report has not been timely served because elements of the report are found deficient, “the statute does not provide for an extension where no report of any kind was provided.” On October 18, 2004, the trial court granted Select Specialty’s motion to dismiss Sharon’s case pursuant to section 74.351.
Timeliness of Expert Report
In her first issue, Sharon contends that “Select Specialty Hospital had actual notice of the lawsuit and therefore constructive notice of all the contents of the court[’s] file, which included [Sharon’s] Expert Report.” Sharon asserts that, on or about June 10, 2004, her expert report was “incorporated into the court[’s] record as an attachment to [her] response to Co-Defendant Methodist Hospital’s motion to dismiss.” She further asserts that, “[u]nder Texas Law[,] constructive notice effectively served Defendant Select Specialty Hospital with [her] expert report on or about June 10, 2004.”
We review a trial court’s decision on a motion to dismiss a case under section 74.351 of the Texas Civil Practice and Remedies Code for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001) (holding trial court’s decision to dismiss under former article 4590i, section 13(e) is reviewed for abuse of discretion); Lookshin v. Feldman, 127 S.W.3d 100, 103 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (same). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. Downer v. Aquamarine Ops., Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). When reviewing matters committed to the trial court’s discretion, we may not substitute our own judgment for that of the trial court. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).
Section 74.351(a) provides, in relevant part
In a health care liability claim, a claimant shall, not later than the 120th day after the date the claim was filed, serve on each party or the party’s attorney one or more expert reports, with a curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted. The date for serving the report may be extended by written agreement of the affected parties.
See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875, amended by Act of May 18, 2005, 79th Leg., R.S., ch. 635, § 1–3, 2005 Tex. Sess. Law Serv. 1590, 1591 (Vernon 2005).
Moreover, section 74.351(b) provides:
If, as to a defendant physician or health care provider, an expert report has not been served within the period specified by Subsection (a), the court, on the motion of the affected physician or health care provider, shall, subject to Subsection (c), enter an order that (1) awards to the affected physician or health care provider reasonable attorney's fees and costs of court incurred by the physician or health care provider; and (2) dismisses the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.
Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b).
If an appellant fails to present a complete record on appeal, we must presume that the evidence before the trial court supported the trial court’s ruling. See Enterprise Leasing Co. of Houston v. Barrios, 156 S.W.3d 547, 549–50 (Tex. 2004); Feldman v. Marks, 960 S.W.2d 613, 614 (Tex. 1996); Till v. Thomas, 10 S.W.3d 730, 734 (Tex. App.—Houston [1st Dist.] 1999, no pet.). Sharon had the burden to supply us with an appellate record demonstrating that the trial court abused its discretion in granting Select Specialty’s motion to dismiss. Till, 10 S.W.3d at 733–34. However, in the instant case, Sharon did not include a copy of her filed expert report in the appellate record. Thus, although Sharon states in her brief that she filed her expert report with the trial court as part of her response to Methodist Hospital’s motion to dismiss on or about June 10, 2004, there is no evidence in the appellate record that Sharon, in fact, filed such a response with her expert report attached. Furthermore, there is no evidence in the record that Sharon filed her expert report at any time with the trial court or otherwise provided Select Specialty with an expert report.
Moreover, Sharon contends that she filed her expert report “on or about June 10, 2004,” with the trial court. The record shows that Sharon filed her original petition in this case on November 4, 2003. Section 74.351(a) requires a plaintiff who files a “health care liability claim” to serve an expert report on the defendant within 120 days of filing its claim. Thus, the 120-day deadline expired on March 4, 2004. Even if filing an expert report with the trial court on June 10, 2004 “effectively served” Select Specialty as Sharon contends, by her own admission, she would nevertheless have provided her expert report outside of the 120-day deadline. Furthermore, there is no evidence in the record that Sharon and Select Specialty extended the date for serving the report by written agreement. Thus, because Sharon did not serve Select Specialty with an expert report within 120 days of filing her claim, her claim was subject to dismissal with prejudice. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(2).
In her second issue, Sharon argues that, because Select Specialty failed to challenge the expert report “for over 90 days after it became part of the court[’s] record,” pursuant to section 74.351(a), Select Specialty “waived any and all objections related to the report.”
Section 74.351(a) provides, in relevant part
Each defendant physician or health care provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the 21st day after the date it was served, failing which all objections are waived.
See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875 (amended 2005).
However, because there is no evidence in the record that Sharon filed her expert report with the trial court or otherwise provided Select Specialty with an expert report, the 21-day deadline by which a health care provider must file and serve its objections to the sufficiency of such a report was not triggered. Thus, Select Specialty could not have waived its objection to the sufficiency of an expert report when there is no evidence in the record that Select Speciality was served with a report.
Accordingly, we hold that, because there is no evidence in the appellate record that Sharon filed with the trial court or otherwise provided Select Specialty with her expert report within 120 days of filing her lawsuit on behalf of Godfrey, the trial court was left with no discretion but to dismiss her suit against Select Specialty with prejudice. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b)(2).
We overrule Sharon’s first and second issues.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Nuchia, Jennings, and Higley.