Opinion issued February 6, 2009
In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-06-01038-CV
____________
ST. LUKE’S EPISCOPAL HOSPITAL and THE TEXAS HEART INSTITUTE, Appellants
V.
RAYMON POLAND, INDIVIDUALLY AND AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF JESSIE POLAND, ROBERT MARTIN, and FRANK MARTIN, Appellees
On Appeal from 152nd District Court
Harris County, Texas
Trial Court Cause No. 2006-38894
OPINION DISSENTING FROM THE DENIAL OF
EN BANC RECONSIDERATION
In its opinion, the panel erroneously concludes that appellees, Raymon Poland, individually and as independent administrator of the estate of Jessie Poland, Robert Martin, and Frank Martin (“the Polands”), untimely served their medical liability expert report on the attorneys of appellants, St. Luke’s Episcopal Hospital (“St. Luke’s”) and The Texas Heart Institute (“THI”). See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875 [hereinafter “former section 74.351(a)”] (amended 2005) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2008)).
In fact, as expressly found by the trial court, the Polands had already served their expert’s report on the attorneys for St. Luke’s and THI prior to the Polands’ filing of their health care liability lawsuit.
Regardless, the panel reasons that because the Polands did not, after filing their health care liability claims in court, serve yet another copy of the report to the attorneys, who already had the report in their possession, the Polands’ claims for the wrongful death of Mrs. Poland must be dismissed with prejudice, and the Polands must pay the attorneys’ fees of St. Luke’s and THI. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b) (Vernon Supp. 2008). In doing so, the panel misinterprets the plain language of former section 74.351(a), disregards the legislative purposes of the statute, disregards the fundamental purpose of rule 21a, and misapplies the rule, resulting in a serious error, requiring en banc reconsideration of the case. See Tex. R. App. P. 41.2(c).
Factual and Procedural Background
The pertinent facts of the case are straight forward and undisputed. St. Luke’s, on August 11, 2003, admitted Mrs. Poland for elective mitral valve replacement surgery. Although Mrs. Poland had been taking Coumadin for mitral valve regurgitation, she stopped taking Coumadin on August 9, 2003 in preparation for the surgery. Due to bleeding complications that occurred during the surgery, Mrs. Poland was twice taken back into surgery, and she died on August 20, 2003 as a result of the complications.
Thereafter, the Polands’ attorneys complied with the notice provision of chapter 74 of the Texas Civil Practice and Remedies Code. Having been in contact with the attorneys for St. Luke’s and THI, the Polands’ attorneys, by a letter faxed on May 6, 2005, informed the St. Luke’s and THI attorneys that they had “several issues that we wish to address with you and risk management prior to filing suit.” They attached to their letter the May 2, 2005 “medical evaluation of our expert witness, Dr. Dennis Moritz, MD,” a Board Certified Cardiac Surgeon. (Emphasis added.) Attached to Dr. Moritz’s report was his lengthy curriculum vitae.
In sum, Dr. Moritz, in his expert report, stated that the pertinent standard of care in regard to surgery on a patient on Coumadin “is to stop the Coumadin and allow the coagulation profile to return to normal.” He also stated, “Performing any elective surgery on a fully anticoagulated patient is a breach of the standard of care. This is particularly true for operations such as heart surgery in which bleeding is always a potential hazard.” Dr. Moritz noted that it “is essential to check the [Prothrombin Time (“PT”) and International Normalized Ratio (“INR”)] before surgery and defer surgery until it returns to near normal,” and that Mrs. Poland’s PT/INR “was not only elevated, but was well above the therapeutic range at the time of admission.” He emphasized that “[t]he dangerous [PT/INR] level was confirmed . . . , but the operation proceeded nonetheless.” He concluded,
It is my opinion based on a reasonable degree of medical probability that proceeding with this operation in a patient who was fully anticoagulated with Coumadin led to bleeding, multiple transfusions of blood products, multiple organ failure, and finally death.
The principle of not doing elective surgery on a fully anticoagulated patient is so basic to surgical principles, that I feel this breach of the standard of care must also reflect a serious system failure at this hospital. Many people had knowledge, or should have had knowledge of Mrs. Poland’s PT/INR. Any of these could have and should have initiated action to cancel the case. This failure resulted in Mrs. Poland’s death.
After receiving Dr. Moritz’s expert report, the attorneys for St. Luke’s and THI, by letter dated May 19, 2005, responded that they would agree to “a pre-suit settlement conference . . . contingent on the participation of the other healthcare providers implicated in Dr. Dennis Moritz’s report.”
On October 24, 2005, the Polands filed their original petition, alleging, as noted by the panel,
that, at the time of surgery, [Mrs.] Poland’s blood contained a level of Coumadin that the health-care providers should have known rendered her blood fully anti-coagulated and, thus, rendered surgery dangerous. The surgery was nonetheless performed; Jessie Poland bled internally; and she died several days later of multi-system organ failure.
St. Luke’s Episcopal Hosp. v. Poland, No. 01-06-01038-CV, 2009 WL _______, at *__ (Tex. App.—Houston [1st Dist.] Feb. 6, 2009, no pet. h.).
Subsequently, St. Luke’s and THI moved to dismiss the Polands’ health care liability claims on the grounds that the Polands had failed to timely serve them with Dr. Moritz’s expert report and that Dr. Moritz’s expert report is “legally insufficient.” See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875 (amended 2005); Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b). Concluding that the Polands had in fact timely served St. Luke’s and THI with Dr. Moritz’s expert report and that the report is sufficient, the trial court entered its October 30, 2006 interlocutory order denying St. Luke’s and THI’s motion to dismiss the Polands’ health care liability claims.
Section 74.351(a)
In their first issue, St. Luke’s and THI argue that the trial court erred in denying their motion to dismiss the Polands’ health care liability claims because, under former section 74.351(a), “an expert report must be served within 120-days after filing a lawsuit asserting a health care liability claim.” (Emphasis added.) St. Luke’s and THI do not claim that their attorneys did not actually receive the report. Rather, they assert,
What is in dispute is when the Polands could first “serve” their report within the meaning of section 74.351(a). Under section 74.351(a), there should be no doubt the Polands had to serve their expert report between the time they filed their lawsuit on October 24, 2005 and the deadline of February 21, 2006. . . . Despite the statute’s plain language, the Polands contend their letter from Dr. Moritz satisfied their statutory burden even though it was sent long before suit was filed and was in relation to a possible pre-suit settlement conference.
(Emphasis added.) The panel agrees, holding,
[T]he plain language of former section 74.351(a) and [Texas Rule of Civil Procedure] 21a, which it implicitly incorporates by use of the term ‘serve’ simply does not contemplate ‘service’ of the expert’s report and [curriculum vitae] on a physician or health-care provider until after a claim has been filed in court against that person or entity . . . . Accordingly, the provision of an expert report to a physician or health-care provider before a claim is filed against that individual or entity in court does not comply with former section 74.351(a)’s service requirement; instead, the 120-day period in which an expert report must be served is triggered under former section 74.351(a) by the filing of a health-care-liability claim against that person or entity.
St. Luke’s Episcopal Hosp., 2009 WL _______, at *__ (emphasis added) (citations omitted).
The panel’s erroneous holding and reasoning is based on its recent holding in Poland v. Ott, No. 01-07-00199-CV, 2008 WL5392015 (Tex. App.—Houston [1st Dist.] Dec. 19, 2008, no pet. h.), which was based on another panel’s holding in University of Texas Health Science Center at Houston v. Gutierrez, 237 S.W.3d 869, 873 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). In Gutierrez, this Court held that:
Given the express legislative intent of Chapter 74 and the intentional legislative act of replacing the word “furnish” with “serve” in section 74.351(a), we determine that proper service under rule 21a must occur to effectuate the intent of Chapter 74 as a whole, and section 74.351(a) specifically.[ ]
Id. (emphasis added). In Ott, the panel conceded:
We reach this conclusion despite the fact that, as the [Polands] note, the section requires service “not later than” 120 days after a claim is filed, rather than requiring service within 120 days after the claim is filed.
Ott, 2008 WL 5392015, at *7 (emphasis added).
Although St. Luke’s and THI and the panel state that the “plain language” of former section 74.351(a) actually requires that a medical liability expert report be served only after the filing of a lawsuit asserting a health care liability claim, nothing in the plain language of the statute so states. Former section 74.351(a) provides,
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 2005). Thus, as conceded by the panel in Ott, former section 74.351(a) actually requires service “‘not later than’ 120 days after a claim is filed,” not “within 120 days after the claim is filed.” Ott, 2008 WL 5392015, at *7 (emphasis added). The Texas Supreme Court has explained,
When interpreting statutes, we try to give effect to legislative intent. “Legislative intent remains the polestar of statutory construction.” However, it is cardinal law in Texas that a court construes a statute, “first by looking to the plain and common meaning of the statute’s words.” If the meaning of the statutory language is unambiguous, we adopt, with few exceptions, the interpretation supported by the plain meaning of the provision’s words and terms. Further, if a statute is unambiguous, rules of construction or other extrinsic aids cannot be used to create an ambiguity.
Fitzgerald v. Advanced Spine Fixation, Sys., Inc., 996 S.W.2d 864, 865–66 (Tex. 1999) (footnotes omitted).
Here and in Ott, the panel has turned to Texas Rule of Civil Procedure 21a and created such an ambiguity. See Tex. R. Civ. P. 21a. Rather than focus on the plain and common meaning of the word “serve,” the panel reasons that former section 74.351(a) “implicitly incorporates” rule 21a, which does not, in the words of the panel, “contemplate ‘service’” of any pleading, plea, motion, or other form of request required to be served under rule 21 until after a claim has been filed in a court. St. Luke’s Episcopal Hosp., 2009 WL _______, at *__. Thus, the panel, in Ott, concluded that delivery of an expert report to a defendant physician or health care provider “before a health-care liability claim is filed in court against the physician or health care provider does not meet former section 74.351(a)’s service requirements.” Ott, 2008 WL5392015, at *6.
The word “serve,” as a verb, is simply defined as to “make legal delivery of (a notice or process)” and to “present (a person) with a notice or process as required by law.” Black’s Law Dictionary 1372 (7th ed. 1999). Thus, all that former section 74.351(a) requires is that a health care liability claimant “deliver” or “present” each party or the party’s attorney with an expert report and curriculum vitae of each expert listed in the report for each physician or health care provider against whom a liability claim is asserted by the hard-and-fast deadline. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 875 (amended 2005). Only if a defendant physician or health care provider “has not been served” with an expert report by the deadline, “shall” a trial court then order the claim dismissed with prejudice and award attorney’s fees and costs to the pertinent defendants. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b).
Rule 21a does not define the word “serve,” which, as noted above, simply means to “deliver”; rather, it provides:
Every notice required by these rules, and every pleading, plea, motion or other form of request required to be served under Rule 21, other than the citation to be served by the filing of a cause of action and except as otherwise expressly provided in these rules, may be served by delivering a copy to the party to be served, or the party’s duly authorized agent or attorney of record, as the case may be, either [1] in person or by agent or by courier receipted delivery or [2] by certified or registered mail, to the party’s last known address, or [3] by telephonic document transfer to the recipient’s current telecopier number, or [4] by such other manner as the court in its discretion may direct.
Tex. R. Civ. P. 21a (emphasis added). The plain purpose of rule 21a is to ensure that parties receive, by delivery, “notice” and “every pleading, plea, motion or other form of request required to be served under Rule 21.” See Tex. R. Civ. P. 21a. It clearly gives trial courts discretion to direct other methods of delivery. Tex. R. Civ. P. 21a. More importantly, as explained by the Fort Worth Court of Appeals:
The purpose of the rules relating to service and notice is to make reasonably certain that all parties to a suit are notified as to the date and time the court has set their matter down for hearing and determination. This is in order that the parties, individually or by counsel may appear, and present their side of the case and to take such action as is deemed appropriate to protect their interest. Thus, service and notice in a technical sense is incidental where the main purpose of obtaining the appearance of all parties and their participation is accomplished.
Hill v. W. E. Brittain, Inc., 405 S.W.2d 803, 807 (Tex. App.—Fort Worth 1966, no writ) (emphasis added).
In Hill, although the Hills did not deny that they were actually “served with” a copy of a motion for judgment notwithstanding the verdict and notice of a hearing on the motion, they complained because it was not sent to them “by registered mail as provided by Rule 21a.” Id. The court concluded that “prima facie evidence of service” and the appearance and participation of the Hills at the hearing demonstrated that the Brittain’s notice by mail was adequate. Id. The court explained that the Hills “were in no way prejudiced.” Id. Moreover, the Hills made “no showing that they were denied any rights or privileges or that had service been proper, assuming it was not, that a different result would have obtained.” Id. In sum, nothing suggested that the Hills “could or would have made a better showing or presented a stronger case had they received notice by registered or certified mail rather than by regular mail.” Id.
Likewise, in Ott, although Dr. Ott complained that neither he nor his attorneys received the Polands’ expert report directly from the Polands after they had filed their lawsuit, Dr. Ott made no showing of any prejudice. The Polands’ service of the expert report upon Dr. Ott’s insurance carrier prior to the filing of their lawsuit, as requested by the insurance carrier, was adequate. Ott, 2008 WL 5392015, at *18 (Jennings, J. dissenting).
Here, unlike in Ott, the Polands’ attorneys, having been in contact with the attorneys for St. Luke’s and THI, by a letter faxed on May 6, 2005, informed the St. Luke’s and THI attorneys that they had “several issues that we wish to address with you and risk management prior to filing suit” and attached to their letter the May 2, 2005 “medical evaluation of our expert witness, Dr. Dennis Moritz, MD,” a Board Certified Cardiac Surgeon. After actually receiving Dr. Moritz’s expert report, the attorneys for St. Luke’s and THI, by letter dated May 19, 2005, responded that they would agree to “a pre-suit settlement conference . . . contingent on the participation of the other healthcare providers implicated in Dr. Dennis Moritz’s report.” Thus, there is no doubt at all that the attorney’s for St. Luke’s and THI had in fact received Dr. Moritz’s report. St. Luke’s and THI simply cannot claim any prejudice under these circumstances, and the Polands’ service of the expert report directly upon counsel for St. Luke’s and THI was more than adequate.
Relying on rule 21a to fault the Polands for not serving yet another copy of their expert report on the St. Luke’s and THI attorneys after filing suit not only results in a miscarriage of justice, but actually goes against the very purpose of our rules of civil procedure upon which the panel relies to reach its holding. We are to “liberally” construe the rules because “[t]he proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established rules of substantive law.” Tex. R. Civ. P. 1. The general commentary to rule 1 expressly warns:
Any procedural device or rule therefore, which impedes the investigation or the evaluation of the facts or the awarding of the just consequences thereon, is incompatible with an ideal procedure. No mere rule of procedural form or courtesy should be allowed to delay or control the disposition of the litigation upon its merits.
No judgment should ever be rendered in the trial court which is based upon mere procedural technicalities . . . . There is no vested right in rules of procedure; much less is there any vested right in procedural errors.
Tex. R. Civ. P. 1–General Commentary–1966 (Vernon 2003). This is especially true when litigants like St. Luke’s and THI have not been prejudiced by their attorneys’ receipt of the expert report pre-suit.
Nothing in former section 74.351(a) precludes a claimant from serving an implicated physician or health care provider with her expert report and curriculum vitae along with an original petition or prior to the actual filing of such a claim in court in an effort to reach a settlement. When a claimant serves her expert report on an implicated physician or health care provider along with the filing of her health care liability claims or prior to the filing of those claims in court, then a defendant can, as did St. Luke’s and THI here, object to the report after suit is filed. Here, regardless, the plain language of former section 74.351(a) simply does not render untimely the Polands’ delivery of their expert’s report on the attorneys of St. Luke’s and THI. It certainly does not evidence a legislative intent that a claimant’s failure to serve yet another copy of the same expert report on the same opposing counsel after the filing of a lawsuit requires that the trial court dismiss the lawsuit.
The purpose behind the Legislature’s requirement of “early expert reports” is not to create a “gotcha”; it is to “stem frivolous suits against health care providers.” Lewis v. Funderburk, 253 S.W.3d 204, 205 (Tex. 2008). As recently noted by our sister court, in enacting Chapter 74, the Legislature sought to “‘(1) reduce excessive frequency and severity of health care liability claims through reasonable improvements and modifications in Texas insurance, tort, and medical practice systems;’ and ‘(2) decrease the cost of those claims and ensure that awards are rationally related to actual damages.’” Mokkala v. Mead, 178 S.W.3d 66, 74 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (quoting Act of June 2, 2003, 78th Leg., R.S. ch. 204, § 10.11(b), 2003 Tex. Gen. Laws 847, 884). In presenting House Bill 4, which included the pertinent language in section 74.351, Representative Joe Nixon, Chair of the House Committee on Civil Practices, explained,
House Bill 4 . . . is designed to promote fairness and efficiency in civil lawsuits, protect Texas citizens and Texas courts from abusive litigation tactics, remove incentives in the system that are causing unwarranted delay and expense. House Bill 4—its purpose is to restore the needed balance in our court system so that it can operate more efficiently and more fairly and less costly.
Id. (citing Hearings on Tex. H.B. 4 Before the House Comm. on Civil Practices, 78th Leg., R.S. 1 (Feb. 26, 2003) (statement of Rep. Nixon) (transcript available from Capitol Research Services, Austin, Texas)) (emphasis added). Representative Nixon emphasized that “the hard reality is we just need to make a hard and fast deadline, like we do on statue [sic] of limitations—as we do on other requirements.” Id. (citing Debate on Tex. H.B. 4 on the Floor of the House, 78th Leg., R.S. 317 (March 19, 2003) (statement of Rep. Nixon) (transcript available from Capitol Research Services, Austin, Texas)) (emphasis added).
Here, not only did the Polands meet former section 74.351(a)’s deadline, they, by providing the expert report of Dr. Moritz directly to the attorneys of St. Luke’s and THI prior to filing their health care liability lawsuit, essentially placed all of their cards on the table to effectuate an early settlement of the case. As noted by the trial court when addressing the Polands’ attorneys at the hearing on the motion to dismiss:
What I will do is I will issue an order one way or the other. . . . Because this issue needs to be decided. Because lawyers usually don’t do what you have done. And I feel like plaintiffs were attempting to do what the statute attempts to require of them. And usually the case is plaintiffs are trying to do the least, and defendants file a motion to dismiss in that situation.
(Emphasis added.)
Setting aside the trial court’s express finding that the Polands had timely served their expert report on the St. Luke’s and THI attorneys and then dismissing the Polands’ claims with prejudice and making them pay the attorney’s fees of St. Luke’s and THI under these circumstances constitutes a misapplication of former section 74.351(a). In doing so, the panel misinterprets the plain language of the statute and goes against its purpose to stem frivolous lawsuits against health care providers while promoting fairness and efficiency in such lawsuits.
Certainly, a health care liability claimant’s certification of compliance with rule 21a in delivering an expert report to a defendant doctor or health care provider would entitle the claimant to “a presumption of delivery” of the report. However, the bottom line is that the claimant need not rely on such “a presumption of delivery” after establishing that the defendants’ attorneys were actually served with the report. Accordingly, this panel’s statement in the instant case and in Ott that former section 74.351(a) implicitly incorporates the requirements of rule 21a and the panel’s statement in Gutierrez that “proper service under rule 21a must occur to effectuate the intent of Chapter 74 as a whole, and section 74.351 specifically” are in serious error. See St. Luke’s Episcopal Hosp., 2009 WL _______, at *__; Ott, 2008 WL 5392015, at *16; Gutierrez, 237 S.W.3d at 873.
Conclusion
In sum, the En Banc Court should hold, as did the trial court, that the Polands timely served St. Luke’s and THI with the health care liability expert report of Dr. Moritz, overrule St. Luke’s and THI’s first issue, and address St. Luke’s and THI’s second issue. Moreover, the En Banc Court should overrule this Court’s holdings in Ott and Gutierrez that “proper service under rule 21a must occur to effectuate the intent of Chapter 74 as a whole, and section 74.351 specifically.” Ott, No., 2008 WL 5392015, at *16; Gutierrez, 237 S.W.3d at 873. Accordingly, I respectfully dissent from the denial of en banc consideration of this case.
Terry Jennings
Justice
Panel consists of Justices Taft, Keyes, and Alcala.
Appellants moved for rehearing to the panel. See Tex. R. App. P. 49.1. Appellees moved for rehearing to the panel and for en banc reconsideration to the Court. See Tex. R. App. P. 49.1, 49.7.
The panel denied appellees’ motion for rehearing addressed to it, leaving pending appellants’ motion for rehearing and appellees’ motion for en banc reconsideration and extending the Court’s plenary power over the case. See Tex. R. App. P. 19.1, 49.3.
The Court granted appellants’ motion for rehearing and withdrew its opinion and judgment issued February 14, 2008, thus rendering moot appellees’ motion for en banc reconsideration. See Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 41 n.4 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (op. on reh’g).
After the Court withdrew its February 14, 2008 opinion and judgment, during the pendency of the Court’s plenary power over the case, and before another opinion and judgment had issued in the case, en banc consideration was requested from within the Court. See Tex. R. App. P. 41.2(c).
Chief Justice Radack and Justices Taft, Jennings, Keyes, Alcala, Hanks, Higley, and Bland participated in the vote to determine en banc consideration.
A majority of the Justices of the Court voted to deny en banc consideration. See id. Justice Taft, concurring in the denial of en banc consideration. See Tex. R. App. P. 47.5.
Justice Jennings, joined by Justice Bland, dissenting from the denial of en banc consideration. See id.