Heart Hospital of Austin and Jan N. Ogletree, M.D. v. Nancy Kay Matthews and Luan Matthews

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-05-00317-CV

Heart Hospital of Austin and Jan N. Ogletree, M.D., Appellants

v.

Nancy Kay Matthews and Luann Matthews, Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. GN403290, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING

OPINION

Appellants Heart Hospital of Austin and Jan N. Ogletree, M.D. appeal from the trial

court’s denial of their motions to dismiss the medical malpractice suit brought by appellees Nancy

Kay Matthews and Luann Matthews. We hold that we lack the jurisdiction to consider Ogletree’s

appeal, and we affirm the trial court’s order as to the Hospital.

Procedural Background

On October 4, 2004, appellees filed suit, alleging that appellants were negligent in

their medical treatment of appellees’ father, John Matthews.1 Appellees’ expert reports were due

on February 1, 2005, 120 days later. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West

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Appellees allege that their eighty-four-year-old father was admitted to the Hospital with
chest pain. Ogletree, a urologist, perforated Matthews’s bladder when he inserted a urinary catheter,
causing renal failure. Matthews’s condition deteriorated, and he died soon after.
Supp. 2005).2 On January 31, appellees provided appellants with three expert reports by radiologist

Dr. Richard Karsh, professor of nursing Alexanderia Burwell, and two nurse consultants on behalf

of SUMMIT Medical-Legal Investigations (“SMLI”). Appellants moved to have appellees’ claims

dismissed, arguing that the reports were deficient to such a degree that they should not be considered

expert reports at all. Ogletree filed his objections and motion to dismiss on February 22, and the

Hospital filed its motion to dismiss on March 7. Appellees responded to appellants’ motions to

dismiss, asserting that they had made a good faith effort to comply with the statute. They argued that

the Hospital had waived its objections by filing its motion outside of the twenty-one-day window

provided by section 74.351 and requested a thirty-day extension of time to correct any deficiencies

and to submit a report by a urologist.3 The trial court denied both motions to dismiss. The court

found that the Hospital had waived its objections to the expert reports by filing its motion to dismiss

more than twenty-one days after the reports were served. The court found that the reports were

deficient as to Ogletree but granted appellees a thirty-day extension of time to cure the deficiencies.

Appellants separately filed notices of interlocutory appeal. See id. § 51.014(a) (West Supp. 2005).

Expert Report as to Dr. Ogletree

The only issue raised by Ogletree is whether the trial court had the discretion to grant

appellees an extension under subsection 74.351(c), which allows a trial court to grant one thirty-day

2
Section 74.351 was amended in 2005, after appellees filed suit. See Act of May 18, 2005,
79th Leg., R.S., ch. 635, §§ 1, 2, 2005 Tex. Gen. Laws 1590, 1590. Because the amendment does
not affect our analysis, we will cite to the current statute.
3
On March 30, appellees provided a report by urologist Dr. Morris Claman. Appellants did
not object to the sufficiency of Claman’s report.

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extension to cure a deficient expert report. Id. § 74.351(c). Ogletree asserts that appellees’ reports

only addressed issues “unrelated to Dr. Ogletree’s care” and that the experts were not qualified to

give their opinions as to Ogletree’s care. This, he argues, means that appellees failed to file an

expert report as to Ogletree’s alleged malpractice and, therefore, subsection 74.351(c) did not apply

to give the trial court the discretion to grant an extension to appellees. Although Ogletree argues that

he is appealing not from the trial court’s grant of the extension, but only from the denial of his

motion to dismiss, the two actions by the trial court are completely intertwined, and we disagree that

Ogletree is appealing only from the denial of his motion to dismiss.

When the legislature rewrote the statutes governing health care liability claims in

2003, it provided that within 120 days of filing a lawsuit asserting a health care liability claim, a

plaintiff must serve an expert report on each defendant, along with the expert’s curriculum vitae

(“CV”). Id. § 74.351(a). If a plaintiff fails to file a timely expert report, the court must, on the

affected defendant’s motion, dismiss the case with prejudice. Id. § 74.351(b). However, if a report

“has not been served within [120 days] because elements of the report are found deficient,” the trial

court has the discretion to grant a single thirty-day extension of time to cure the deficiencies.4 Id.

4
Article 4590i, the predecessor to section 74.351, provided for a discretionary thirty-day
extension of time upon a showing of “good cause” and a mandatory thirty-day “grace period” upon
a showing that the failure to file a conforming report was due to accident or mistake and was not
intentional or due to conscious indifference. See Act of May 4, 1995, 74th Leg., R.S., ch. 140, § 1,
1995 Tex. Gen. Laws 985, 986 (amending Tex. Rev. Civ. Stat. art. 4590i, § 13.01, repealed in 2003).
Section 74.351 does not require a showing of good cause, accident, or mistake; it simply leaves the
granting of an extension to the trial court’s discretion. Tex. Civ. Prac. & Rem. Code Ann.
§ 74.351(c); see In re Covenant Health Sys., No. 07-05-0462-CV, 2006 Tex. App. LEXIS 1696, at
*8 (Tex. App.—Amarillo Mar. 1, 2006, orig. proceeding) (“Unlike the former statute, the Legislature
omitted from subsection (c) [of section 74.351] terms such as ‘good cause,’ ‘accident,’ or ‘mistake’
in vesting the trial court with discretion to grant an extension.”).

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§ 74.351(c). We review a trial court’s decision on a motion to dismiss for failure to file an expert

report for an abuse of discretion. American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46

S.W.3d 873, 875 (Tex. 2001) (discussing dismissal for lack of expert report under art. 4590i,

predecessor statute to Tex. Civ. Prac. & Rem. Code Ann. § 74.351); Group v. Vicento, 164 S.W.3d

724, 727 (Tex. App.—Houston [14th Dist.] 2005, pet. filed).

If a trial court has not entered a final and appealable order, we have jurisdiction to

hear an interlocutory appeal only if authorized by statute. Stary v. DeBord, 967 S.W.2d 352, 352-53

(Tex. 1988); Academy of Oriental Med., L.L.C. v. Andra, 173 S.W.3d 184, 185 (Tex. App.—Austin

2005, no pet.). We construe the statutory grant of interlocutory jurisdiction to determine and

effectuate the legislature’s intent. Andra, 173 S.W.3d at 185 (citing Texas Dep’t of Transp. v.

Needham, 82 S.W.3d 314, 318 (Tex. 2002)). We consider disputed provisions in the context of the

entire statute, not in isolation, and we assume that every word, phrase, and expression used in a

statute was deliberately chosen and every word excluded was excluded purposefully. Id.

Subsection 51.014(a)(9) provides that an interlocutory appeal may be taken from a

trial court’s denial of a motion to dismiss for failure to file an expert report under section 74.351(b).

Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(9). A defendant may not, however, appeal from an

order granting an extension to file an expert report under section 74.351(c).5 Id. Because our

jurisdiction over interlocutory appeals is a narrow exception to the general rule that we may only

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Section 51.014 further allows an interlocutory appeal to be taken from an order granting
relief under subsection 74.351(l), which provides that trial court “shall grant a motion challenging
the adequacy of an expert report only if it appears to the court” that the expert report does not
“represent an objective good faith effort to comply with” the statutory definition of an expert report.
Tex. Civ. Prac. & Rem. Code Ann. §§ 51.014(a)(10), 74.351(l) (West Supp. 2005).

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consider final judgments and orders, we must strictly construe section 51.014. Bally Total Fitness

Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001); Andra, 173 S.W.3d at 185-86.

Although Ogletree sought dismissal under subsection 74.351(b), he also objected to

appellees’ reports, arguing that Karsh’s report did not satisfy section 74.351. Ogletree noted that

Karsh’s CV was not attached to his report and complained that Karsh, a radiologist, was not

qualified to give an expert opinion as to the care Ogletree provided as a urologist. Ogletree further

objected that Burwell’s report did not refer to Ogletree and that SMLI’s report could not be used

against Ogletree because it was written by nurses.6 On appeal, Ogletree contends that the extension

granted under subsection 74.351(c) is “not before this court” and that he “is only appealing the trial

court’s denial of his motion to dismiss for failure to obtain an expert report.” We disagree.

In Andra, which concerned whether we had jurisdiction over a trial court’s order

denying a challenge to an expert report under subsection 74.351(l), we held:

When a trial court grants a 30-day extension under (c), it does not dismiss or award
fees or costs. In such cases, even where there is no timely expert report because the
report or reports filed were found deficient and where the defendant moves for
dismissal, fees, or costs, the trial court may deny the motion. The grant of an
extension to the plaintiff can be a denial of a defendant’s motion under 74.351(b).
Section 51.014(a)(9) generally makes such denials the proper subject of an
interlocutory appeal. Rather than inviting us to assume jurisdiction over
interlocutory appeals of denials of motions other than motions for relief under section
74.351(b), the exception in 51.014(9) clarifies that an interlocutory appeal is only
available when the court had denied a defendant’s motion but had not granted the
plaintiff additional time to cure deficiencies.

6
Appellees do not dispute that the reports filed as of January 31 were insufficient as to Dr.
Ogletree. At the hearing on appellants’ motions to dismiss, appellees’ counsel stated that when he
received Karsh’s report, he realized he needed a urologist’s opinion. Appellees sent Dr. Claman’s
report to appellants on March 30.

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173 S.W.3d at 188 n.7 (citations omitted, emphasis added). In other words, an interlocutory appeal

from the denial of a motion to dismiss under subsection 74.351(b) is proper only if the trial court’s

order does not also grant an extension under subsection 74.351(c). Id. To hold otherwise would

essentially eliminate the phrase “an appeal may not be taken from an order granting an extension

under Section 74.351” from subsection 51.014(a)(9).

In this case, appellees filed several reports attempting to satisfy section 74.351.

Ogletree objected to those reports and also moved for dismissal under subsection 74.351(b). The

trial court agreed that the reports were deficient as to Ogletree, but exercised its discretion to grant

appellees an extension of time to file satisfactory reports under subsection 74.351(c) and denied

Ogletree’s motion to dismiss. Because the trial court’s denial of Ogletree’s motion also granted an

extension under subsection 74.351(c), an interlocutory appeal may not be brought from the court’s

order. We lack jurisdiction over Ogletree’s appeal and therefore dismiss Ogletree’s appeal for want

of jurisdiction.

Expert Report as to The Hospital

The Hospital contends that because the reports by Burwell and SMLI addressed the

standard of care and the Hospital’s alleged breaches of that standard, it had no basis on which to

object to those reports. Instead, the Hospital asserts that it waited for the urologist’s report that

appellees stated would “hopefully” be provided within a week, expecting that the new report would

address the element of causation, but when no such report was filed, it moved to dismiss. The

Hospital argues that it was not required to object to the absence of the report within twenty-one days

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of the initial reports and that because appellees failed to produce a timely report addressing

causation, the trial court was required to grant the Hospital’s motion to dismiss. We disagree.

The statute is clear that a medical defendant whose conduct is implicated by a report

must object to any insufficiencies in the report no later than twenty-one days after the report was

served. Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). If a defendant does not object to the

sufficiency of a report by the twenty-first day, any objections are waived. Id. Appellees served their

expert reports on January 31. On March 7, the Hospital filed its motion to dismiss. The Hospital

argues that it did not object to the reports within twenty-one days because the reports satisfied some

of the elements of section 74.351 and because appellees had told the Hospital that another report,

presumably addressing the missing element of causation, would be forthcoming. Not until that

report was not filed did the Hospital file its motion to dismiss, more than twenty-one days after the

first reports were served. The Hospital argues that it did not have to object to SMLI’s and Burwell’s

reports because only doctors are qualified to provide an opinion as to causation. See Tex. Civ. Prac.

& Rem. Code Ann. § 74.403 (West 2005). In other words, the Hospital argues that it was not

required to object to the lacking element in the nurses’ reports because those reports provided as

many of the required elements as the nurses were statutorily qualified to give. Therefore, the

Hospital argues, it did not waive its right to seek dismissal for insufficient reports.

Although the Hospital argues that it was not required to object to the reports, its

motion to dismiss did attack the reports filed on January 31. The Hospital contended that Dr.

Karsh’s report was insufficient because it did not mention the Hospital or its nurses and did not

explain the applicable standard of care, how the Hospital breached that standard, or how any such

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breach harmed Matthews. The Hospital further asserted that appellees could not rely on Burwell’s

or SMLI’s reports because nurses are not qualified to render an expert opinion as to causation. The

Hospital argued that appellees had not provided a report showing a causal link between the Hospital

and the alleged injuries, and therefore, the suit against the Hospital should be dismissed.

The statute allows a plaintiff to provide opinions about the required elements of

liability through more than one report. Id. § 74.351(i). Therefore, a plaintiff’s case will not be

dismissed simply because each individual report, viewed on its own, does not fully address each

statutory element. Instead, the trial court must look at all of the reports served by the plaintiff and

determine if, viewed as a whole, the reports together address each of the required elements. Id. If

a plaintiff were to produce only one expert report in an attempt to satisfy the statute and that report

failed to address one of the required elements, the defendant would be obligated to object to the

report as deficient within twenty-one days of the report’s production or any objection would be

waived. Id. § 74.351(a). The same applies here—appellees filed three reports in an attempt to

satisfy the statute. The Hospital argued that one element is lacking from those reports, but it failed

to raise that objection in time.

By waiting until March 7 to move for dismissal on the basis that the January 31

reports were deficient, the Hospital waived its objections to any deficiencies in the reports. It does

not matter that the Hospital waited to see whether the promised report would address causation. The

reports as filed on January 31 did not address causation, and the Hospital eventually moved for

dismissal on that basis. Therefore, the Hospital waived any objection to an element missing from

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the package of reports. The trial court did not abuse its discretion in denying the Hospital’s motion

to dismiss for insufficient expert reports. We overrule the Hospital’s issues on appeal.

Conclusion

We hold that we lack jurisdiction over Ogletree’s interlocutory appeal. We further

hold that the trial court did not abuse its discretion in finding that the Hospital waived its objections

and in denying its motion to dismiss, and we therefore affirm the trial court’s order denying the

Hospital’s motion to dismiss.

__________________________________________

David Puryear, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed in Part; Dismissed for Want of Jurisdiction in Part

Filed: May 5, 2006

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