TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-05-00296-CV
Carolyn A. Sherman, Appellant
v.
Austin State Hospital, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. GN403150, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING
MEMORANDUM OPINION
Carolyn A. Sherman appeals from the dismissal of her medical malpractice claim
arising from the death of her daughter, LaShonda L. Washington, at the Austin State Hospital. While
a patient at the hospital, Washington suffered a heart attack and died. Sherman alleged that hospital
staff action and inaction caused or contributed to Washington’s death. The district court dismissed
this suit because Sherman failed to file a timely expert’s report on causation of her daughter’s death.
See Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (West Supp. 2005). We affirm the order dismissing
this cause.
According to Sherman’s petition, her daughter was a mentally ill patient at the
Austin State Hospital. Sherman asserted that hospital staff ignored Washington’s complaints of
heart-attack-like symptoms and sent her back to her room, where she died. Sherman also suspected
that the staff might have restrained Washington, leading to suffocation that caused the heart attack.
She alleged that deliberate delays in providing care contributed to her daughter’s death. Sherman
raises these and other issues regarding her daughter’s death in her appellate brief.
This medical malpractice case was dismissed for Sherman’s failure to file a timely
expert’s report. A plaintiff in a medical malpractice suit is required to file a report that summarizes
an expert’s opinion regarding the applicable standards of care, the manner in which the care provided
failed to meet those standards, and the causal relationship between that failure and the injury, harm,
or damages claimed. See id. § 74.351(r)(6). The report must be filed not later than the 120th day
after the date the claim was filed and served on each defendant. Id. § 74.351(a). The plaintiff’s
failure to file and serve such a report within the specified period requires the trial court, on the
motion of the affected physician or health care provider, to dismiss the claim with respect to the
physician or health-care provider. Id. § 74.351(b). The report need not marshal all of the plaintiff’s
proof, but it must include the expert’s opinion on each of the elements identified in the statute.
American Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001).
We review a dismissal on these grounds for an abuse of discretion. See Buck v. Blum,
130 S.W.3d 285, 290 (Tex. App.—Houston [14th Dist.] 2004, no pet.); Ponce v. El Paso Healthcare
Sys., Ltd., 55 S.W.3d 34, 36 (Tex. App.—El Paso 2001, pet. denied). A trial court abuses its
discretion by acting unreasonably, arbitrarily, or without regard for any guiding rules or principles.
Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
2
We find no abuse of discretion in the district court’s dismissal of this cause. Sherman
sent a medical examiner’s report and toxicology reports in an attempt1 to comply with the report
requirement. The autopsy report concludes by finding that the cause of death was “natural,” and is
silent as to the standard of care the hospital was to provide, how the hospital fell short, and how that
shortcoming caused Washington’s death. A report finding only the cause of death does not satisfy
the statutory requirements. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(r)(6); Shaw v. BMW
Healthcare, Inc., 100 S.W.3d 8, 13 (Tex. App.—Tyler 2002, pet. denied). The district court did not
abuse its discretion by concluding that Sherman did not file a report that met the statutory standards.
Neither did the court abuse its discretion by dismissing Sherman’s claim. See Tex. Civ. Prac. &
Rem. Code Ann. § 74.351(b).
We affirm the order dismissing this cause.
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: February 9, 2006
1
Sherman asserts that, proceeding pro se, she tried to the best of her ability to comply with
the statute. Pro se litigants are bound by the same procedural rules and laws as those represented by
attorneys. Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005).
3
Carolyn A. Sherman v. Austin State Hospital
Combined Opinion