Opinion issued June 25, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-08-00733-CV
DONNA SOLOMON-WILLIAMS, Appellant
V.
SHETAL NICHOLAS DESAI, INDIVIDUALLY,
AND D/B/A FOOT CENTERS OF AMERICA,
FOOT CENTERS OF TEXAS, P.L.L.C., Appellees
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Cause No. 08-CV-162396
MEMORANDUM OPINION
Donna Solomon-Williams appeals the trial court’s dismissal of her health care liability claims against Shetal Nicholas Desai, individually, and d/b/a Foot Centers of America, Foot Centers of Texas, P.L.L.C. (collectively, Foot Centers) for failure to serve Foot Centers with an expert report within 120 days as required by statute. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2008). Solomon-Williams contends that section 74.351(a) deprives the trial court of the discretion to extend the service deadline in cases of hardship, in violation of her due process rights under the United States Constitution and the guarantee of the Texas Constitution’s open courts provision. We affirm.
BACKGROUND
Solomon-Williams sued Foot Centers on February 27, 2008, claiming that Foot Centers’ negligence in treating her ankle caused her personal injury. When Solomon-Williams failed to serve an expert report within 120 days of suit, Foot Centers moved to dismiss the claims against it on June 30, 2008.
On July 14, 2008, Solomon-Williams served an expert report on Foot Centers and moved the trial court for enlargement of time to file the report, explaining that her medical expert was unable to provide the report within the 120-day period because she was unaware of the deadline and her expert, while attending to personal responsibilities that arose following his mother’s death, did not return telephone calls.
After a hearing, the trial court denied Solomon-Williams’ motion for enlargement of time and granted Foot Centers’ motion, dismissing Solomon-Williams’ claims with prejudice on July 25, 2008.
DISCUSSION
I. Standard of review
We review a trial court’s ruling on a motion to dismiss under section 74.351(b) for an abuse of discretion. Tex. Civ. Prac. & Rem. Code Ann § 74.351(b) (Vernon Supp. 2008); Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877–78 (Tex. 2001); Apodaca v. Russo, 228 S.W.3d 252, 254 (Tex. App.—Austin 2007, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003). Nevertheless, when the issues on appeal involve questions of law, such as the constitutional challenges here, we review the trial court’s decision de novo. The trial court “has no discretion in determining what the law is, which law governs, or how to apply the law.” Univ. of Tex. Health Sci. Ctr. v. Gutierrez, 237 S.W.3d 869, 871 n.1 (Tex. App.—Houston [1st. Dist.] 2007, pet. denied).
II. Expert report 120-day service requirement
Under section 74.351(a) of the Texas Civil Practice and Remedies Code, a claimant must serve an expert report within 120 days of suit for each physician or health care provider against whom a liability claim is asserted. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). If the claimant fails to file the report within the 120-day period:
the court, on the motion of the affected physician or health care provider, shall, subject to [an extension of time for a deficient report], 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). Solomon-Williams concedes that she did not file her expert report within 120 days of suit. In her request for enlargement of time to file the report, she explained that good cause exists for the delay, and that the delay did not result from any conscious indifference, nor did it prejudice Foot Centers.
Like Solomon-Williams, the claimant in Badiga v. Lopez, failed to serve a report within the statutorily prescribed period. 274 S.W.3d 681 (Tex. 2009). She sought a thirty-day extension, contending that her failure to serve a timely report was not the result of conscious indifference and that the defendant could not have been prejudiced. Id. at 684. The Supreme Court observed that “[t]hese concerns are no longer relevant, however, in deciding a motion to dismiss when no expert report has been served.” Id. Although its decision predated Badiga, the trial court in this case reached the same conclusion in dismissing Solomon-Williams’ suit. See also Packard v. Miller, No. 07-06-00454-CV, 2007 WL 1662279, at *7 (Tex. App.—Amarillo May 31, 2007, pet. denied) (mem. op.) (holding that statute did not permit trial court’s equitable extension to file expert report; cause reversed and remanded with orders to dismiss); Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 457 (Tex. App.—Austin 2006, no pet.) (“If a claimant fails to serve the report with the curriculum vitae on or before the statutory deadline, and the affected physician or health care provider files a motion to dismiss the claim under section 74.351(b), the court has no alternative but to dismiss the claim with prejudice.”).
A. Constitutional challenges
Solomon-Williams contends that the Legislature’s elimination of “good cause” and “accident or mistake” as discretionary grounds for extending the time in which to provide the expert report violates her due process rights under the United States Constitution and the open courts provision of the Texas Constitution. See U.S. Const. amend. XIV; Tex. Const. art. I, § 13. She acknowledges that the statute provides for extension of the date for serving an expert report “by written agreement of the affected parties.” Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). According to Solomon-Williams, however, this provision is essentially a nullity because a defense counsel, acting as a zealous advocate, would never agree to such an extension. She contends section 74.351(a) violates her due process rights because no legitimate state interest exists for an absolute bar to any enlargement of time to present an expert report. She also contends that the absolute deadline deprives her of a meaningful opportunity to pursue her claim in violation of the open courts provision of the Texas Constitution.[1]
In addressing due process and open courts challenges, Texas courts have consistently confirmed the constitutionality of the current and former versions of the Medical Practices Act. See Walker v. Gutierrez, 111 S.W.3d 56, 65–66 (Tex. 2003); Ledesma v. Shashoua, No. 03-05-00454-CV, 2007 WL 2214650, at *8–9 (Tex. App.—Austin Aug. 3, 2007) (mem. op.); Smith v. Hamilton, No. 09-07-128 CV, 2007 WL 1793754, at *2 (Tex. App.—Beaumont June 21, 2007, no pet.) (mem. op.); Powell v. Clements, 220 S.W.3d 138, 139–40 (Tex. App.—Waco 2007, pet. denied); Fields v. Metroplex Hosp. Found., No. 03-04-00516-CV, 2006 WL 2089171, at *3–4 (Tex. App.—Austin July 28, 2006, no pet.) (mem. op.); Etheredge v. McCarty, No. 05-05-00164-CV, 2006 WL 1738258, at *1 (Tex. App.—Dallas June 27, 2006, no pet.) (mem. op.); Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 460–62 (Tex. App.—Austin 2006, no pet.); Thoyakulathu v. Brennan, 192 S.W.3d 849, 854–56 (Tex. App.—Texarkana 2006, no pet.); Hogue v. Propath Lab., Inc., 192 S.W.3d 641, 645 (Tex. App.—Fort Worth 2006, pet. denied); Williams v. Keck, No. 03-05-00332-CV, 2005 WL 3499439, at *1–*3 (Tex. App.—Austin Dec. 21, 2005, pet. denied) (mem. op.); Rittenhouse v. Sabine Valley Ctr. Found., Inc., 161 S.W.3d 157, 166–67 (Tex. App.—Texarkana 2005, no pet.); Thomas v. Univ. of Tex. Med. Branch, Nos. 01-03-00471-CV & 01-03-00472-CV, 2004 WL 1516456, at *2 (Tex. App.—Houston [1st Dist.] July 8, 2004, no pet.) (mem. op.); Perry v. Stanley, 83 S.W.3d 819, 825 (Tex. App.—Texarkana 2002, no pet.); Gill v. Russo, 39 S.W.3d 717, 718–19 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). We remain mindful of this precedent in reviewing Solomon-Williams’ claims.
1. Due process
In reviewing Solomon-Williams’ due process challenge, we consider whether the challenged statute has a reasonable relation to a proper legislative purpose, and whether it is arbitrary or discriminatory. Garay v. State, 940 S.W.2d 211, 218 (Tex. App.—Houston (1st Dist.) 1997, pet. ref’d); Cannon v. Lemon, 843 S.W.2d 178, 183 (Tex. App.—Houston [14th Dist.] 1992, writ denied). If the law is related to a proper legislative purpose and is not arbitrary or discriminatory, it is constitutionally sound under the due process clause. Solomon-Williams challenges the constitutionality of the 120-day requirement on its face. Accordingly, to prevail, she must show that the statute, by its terms, always operates unconstitutionally. Garay, 940 S.W.2d at 218. Whenever possible, we interpret a statute in a manner that renders it constitutional, under the presumption that the legislature intended constitutional compliance. City of Houston v. Clark, 197 S.W.3d 314, 320 (Tex. 2006); FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex. 2000).
The Supreme Court has held that dismissal of a suit for failure to file an adequate expert report does not violate due process guarantees, even if the plaintiff does not receive notice of the report’s noncompliance before the motion to dismiss.[2] Walker, 111 S.W.3d at 66 (applying former article 4590i). In the bill that contained section 74.351, the Legislature found that the ever-increasing number of medical liability lawsuits brought in Texas caused “a serious public problem in availability and affordability of adequate medical professional liability insurance” in the state, and “this crisis has had a material adverse effect on the delivery of medical and health care in Texas . . . .” Act of June 2, 2003, 78th Leg. R.S., ch. 204, § 10.11, 2003 Gen. Laws 847 (current version at Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001–.507 (Vernon 2005 & Supp. 2008)); see also Intracare Hosp. N. v. Campbell, No. 01-06-00356-CV, 2007 WL 926531, at *5 (Tex. App.—Houston [1st Dist.] Mar. 29, 2007, no pet. h.) (observing that purposes behind enactment of section 74.351 were, “among other things, to remove unwarranted delay and expense, to accelerate the disposition of non-meritorious cases, and to give hard-and-fast deadlines for the serving of expert reports”). The Legislature’s findings similarly provide a reasonable basis for its elimination of the discretionary extension available under the superseded statute.
We hold these circumstances do not violate due process. See id.; Herrera, 212 S.W.3d at 460–62; Thoyakulathu, 192 S.W.3d at 854–56 (holding that dismissal of plaintiff’s suit for untimely filing under section 74.351, which occurred because plaintiff’s facsimile machine malfunctioned during attempted service on last day service would have been timely, was required, even though statute did not provide for additional extensions or means of seeking relief from the consequences for failure to meet statutory deadline); see also Schorp v. Baptist Mem’l Health Sys., 5 S.W.3d 727, 737 (Tex. App.—San Antonio 1999, no pet.) (“Texas law is clear that when a litigant fails to comply with the . . . expert report provisions . . . the dismissal of the action . . . does not violate the due process and open courts provision of Article I of the Texas Constitution”).
2. Open courts challenge
The open courts provision of the Texas Constitution ensures that all litigants receive the opportunity to redress their grievances and receive their day in court. Tex. Const. Ann. art. 1, § 13; Odak v. Arlington Mem’l Hosp. Found., 934 S.W.2d 868, 871 (Tex. App.—Fort Worth 1996, writ denied). The “provision is premised upon the rationale that the legislature has no power to make a remedy by due course of law contingent upon an ‘impossible condition.’” Ledesma, 2007 WL 2214650 at *9 (citing Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 355 (Tex.1990)). To prevail on a challenge under the Texas Constitution’s open courts provision, Solomon-Williams must demonstrate that she has a well-recognized common-law cause of action that is being restricted in an unreasonable or arbitrary manner when balanced against the purpose and basis of the statute. See Odak, 934 S.W.2d at 871. Thus, here, she must show that an unconstitutional application of the expert report requirement actually prevented her from pursuing her claim. See id. at 872; Herrera, 212 S.W.3d at 461.
Several Texas appellate courts, including this court, have held that the statute’s requirement is rationally related to its purpose of discouraging frivolous malpractice suits and does not violate the Texas Constitution. Powell v. Clements, 220 S.W.3d 138, 140 (Tex. App.—Waco 2007, pet. denied); see McGahey v. Daughters of Charity Health Servs., No. 10-02-00288-CV, 2004 WL 1903300, *8–9 (Tex. App.—Waco Aug. 25, 2004, no pet.) (mem. op.); Perry v. Stanley, 83 S.W.3d 819, 825 (Tex. App.—Texarkana 2002, no pet.); Gill v. Russo, 39 S.W.3d 717, 718–19 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). Solomon-Williams has not shown that the statutory 120-day limit, as opposed to her own failure to timely provide an expert report, prevented her from pursuing her claim. See Herrera, 212 S.W.3d at 461–62. We therefore hold that her state constitutional claims lack merit.
B. Waiver
In her final issue, Solomon-Williams contends that Foot Centers waived any objection to her late-filed report because it did not object to the sufficiency of the report within 21 days after receipt. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). We disagree. A health care defendant’s 21‑day deadline applies to an “objection to the sufficiency” of an expert report, not to the fact that an expert report was not served within the mandatory 120-day deadline. See id.; Smith v. Hamilton, No. 09-07-128 CV, 2007 WL 1793754, at *4 (Tex. App.—Beaumont June 21, 2007, no pet.) (mem. op.). Solomon served the expert report in connection with claims that were already subject to Foot Centers’ previously filed motion to dismiss. Once it had moved to dismiss the case for a failure to timely file the required report, Foot Centers had no obligation to further object to it. In this case, Foot Centers took no action that was inconsistent with its asserted right to dismissal of the claims against it. We thus hold that Foot Centers did not waive its request for dismissal of the untimely report.
CONCLUSION
We reject Solomon-Williams’ constitutional challenges to section 73.351(a)’s 120-day deadline for service of expert reports, and conclude that Foot Centers did not waive its right to seek dismissal of Solomon-Williams’ claims by failing to object to her untimely report after filing its own motion to dismiss based on a failure to timely file the report. We therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Keyes, Hanks, and Bland.
[1] Foot Centers claims that Solomon-Williams waived her constitutional complaints by failing to obtain a ruling on them in the trial court. The record shows, however, that Solomon-Williams raised those issues in her opposition to Foot Centers’ motion to dismiss. In granting that motion, the trial court necessarily rejected Solomon-Williams’ constitutional arguments, and consequently, they were properly preserved for appellate review. See Tex. R. App. P. 33.1.
[2] The fact that the appellant in Walker challenged the validity of the expert report provision under the Texas Constitution rather than the federal constitution does not affect our analysis. Because the due process right guaranteed by the state constitution is coextensive with that in the federal constitution, the same result obtains. See Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (recognizing that, while different wording is used in state “due course” provision compared to federal “due process” provision, but has concluded, terms are “without meaningful distinction”).