Daniel D'Arcy, M.D v. James F. Mead, Jr. and Diane P. Mead, Individually, and as Next Friends of James Franklin Mead, III, Robert Mead, and Thomas Mead, Minors

Reversed and Remanded and Memorandum Opinion filed August 1, 2006

Reversed and Remanded and Memorandum Opinion filed August 1, 2006.

 

 

In The

 

Fourteenth Court of Appeals

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NO. 14-04-01220-CV

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DANIEL D=ARCY, M.D., Appellant

 

V.

 

JAMES F. MEAD, JR. and DIANE P. MEAD, Individually, and As Next Friends of JAMES FRANKLIN MEAD, III, ROBERT MEAD, and THOMAS MEAD, Minors, Appellees

 

 

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Cause No. 04-23671

 

 

M E M O R A N D U M   O P I N I O N


Appellant, Daniel D=Arcy, M.D., brings this interlocutory appeal,[1] complaining of the trial court=s denial of his motion to dismiss appellees=, James F. Mead, Jr. and Diane P. Mead, Individually, and As Next Friends of James Franklin Mead, III, Robert Mead, and Thomas Mead, Minors (Athe Meads@), health care liability claims against him for failing to serve timely their expert report.  We reverse and remand. 

On November 23, 2003, the Meads filed an original petition (Cause No. 2003-64427) alleging a negligence claim against D=Arcy and others for failing to diagnose James Mead Jr.=s cancer (synovial sarcoma) when he complained of, and sought treatment for, Apain in a mass in his left leg.@  Under Section 74.351(a) of the Texas Civil Practice and Remedies Code, the Meads were required to serve their expert report and expert=s curriculum vitae, Anot later than the 120th day after the date the claim was filed,@ on each party or the party=s attorney.  Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(a) (Vernon 2005).  Thus, the Meads were required to serve their expert report and the expert=s curriculum vitae on March 23, 2004.  The Meads, however, did not serve their expert report until March 24, 2004 (the 121st day), and the expert=s curriculum vitae until March 25, 2004 (the 122nd day). 

On April 2, 2004, the Meads filed a motion to nonsuit their claims against D=Arcy and the other defendants, which the trial court granted on May 3, 2004.[2]  Three days later, on May 6, 2004, the Meads file a new original petition (Cause No. 2004-23671) alleging the same claims as those in the first lawsuit.  On August 7, 2004, the Meads served their expert report and expert=s curriculum vitae on D=Arcy in the second lawsuit. 

Pursuant to section 74.351(b), D=Arcy moved to dismiss the Meads= claims against him on the ground that they did not timely serve their expert=s report and curriculum vitae by the 120th day after filing their health care liability claim against D=Arcy as required by Section 74.351(a) of the Texas Civil Practice and Remedies Code and requested attorney fees and costs.[3]  On November 19, 2004, the trial court denied D=Arcy=s motion to dismiss. 


In his first issue on appeal, D=Arcy contends the trial court abused its discretion in denying his motion to dismiss because (1) the 120-day deadline under section 74.351(a) started to run from the date the Meads first filed their health care liability claim (the 2003 case), not the date of the most recently filed suit (the 2004 case); (2) the legislature intentionally removed all possible extensions for a plaintiff to file an expert report; and (3) it improperly allowed the Meads to improve their position in the lawsuit through the filing of a nonsuit and unfairly prejudiced his rights. 

We review a trial court=s decision on a motion to dismiss a case under section 74.351 under an abuse of discretion standard.  Manor Care Health Servs., Inc. v. Ragan, 187 S.W.3d 556, 561 (Tex. App.CHouston [14th Dist.] 2006, pet. filed).  A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding principles.  Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).  We may not substitute our judgment for that of the trial court.  Id. 


The time line of relevant events is identical to that in our prior opinion of Mokkala v. Mead, 178 S.W.3d 66 (Tex. App.CHouston [14th Dist.] 2005, pet. filed).[4]  D=Arcy was a defendant along with Mokkala appellants, Sandhya-Rani Mokkala, M.D., Jeffrey D. Carter, D.O., and Arlington Orthopedic Associates, P.A.  D=Arcy, however, was not part of the Mokkala appeal because, apparently, he was served with the second lawsuit on August 21, 2004, some time after the other defendants had been served.  The parties in the Mokkala appeal had filed their briefs with this court before the trial court denied D=Arcy=s motion to dismiss and he perfected this appeal.  The issue here is identical to the issue decided in the Mokkala appeal:  Under these facts, does the 120-day statutory period for filing the expert report run from the date the second lawsuit is filed?  Id. at 70.[5] 

D=Arcy argues, as the Mokkala appellants did, a Aclaim@ and a Asuit@ are not the same.  D=Arcy asserts that while the Meads have filed multiple Asuits,@ they only filed one health care liability Aclaim,@ on November 23, 2003, for the failure to diagnose and treat cancer.  D=Arcy argues the nonsuit and subsequent refiling did not reset the 120-deadline and proposes that if we affirm the trial court=s ruling, it will eviscerate the 120-day deadline and the plaintiff will be allowed to continually nonsuit and refile a health care liability claim until such refiling is barred by the statute of limitations. 

In Mokkala, we looked at the plain language of section 74.351(a), which provides:  A>In a health care liability claim, a claimant shall, not later than the 120th day after the date the claim was filed, serve . . . one or more expert reports . . . for each physician or health care provider against whom a liability claim is asserted.=@  Id. at 71 (quoting Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(a)) (emphasis in original).  We also considered the term Aclaim@ as defined by statute as A>a health care liability claim.=@  Id. (quoting Tex. Civ. Prac. & Rem. Code Ann. ' 74.351(r)(2)).  We then observed that a Ahealth care liability claim@ is a A>cause of action,=@ not a lawsuit.  Id. (quoting Tex. Civ. Prac. & Rem. Code Ann. ' 74.001(a)(13) (Vernon 2005)).  Thus, under the plain language of section 74.351(a), the 120-day period is triggered on the date the claimant files a petition alleging a particular health care liability claim, not the date he files another lawsuit asserting the same claim.  Id.


As in the Mokkala appeal, the Meads argue their right to nonsuit under Rule 162[6] is absolute in the absence of a claim for affirmative relief by the other party.  They contend that to decide otherwise would eliminate the emergency provision of Rule 162.  D=Arcy argues the Meads cannot use Rule 162 to trump or bypass the requirements of chapter 74 for filing an expert report and curriculum vitae in effort to Afashion a back-door extension.@ 

Rejecting the Meads= contention in Mokkala, we determined that nothing in section 74.351 interferes with a plaintiff=s right to take a nonsuit.  Id. at 73.  The plaintiff arguably may not be in the Asame position@ as he was before bringing the action in terms of the amount of time in which to serve the expert report.  Id.  The plaintiff, however, controls the date for filing a health care liability claim, thereby triggering the commencement of the 120-day period for serving the expert report and, subject to statute of limitations, the plaintiff can wait until he has obtained and, can serve, the expert report before filing his claim.  Id.  Thus, our holding did not conflict with the purpose of Rule 162.  Id.  Even if there were a conflict between section 74.351(a) and Rule 162, the legislature has determine that 74.351 should prevail:  A>In the event of a conflict between this chapter and another law, including a rule of procedure or evidence or court rule, this chapter controls to the extent of possible conflict.=@  Id. (quoting Tex. Civ. Prac. & Rem. Code Ann. ' 74.002(a) (Vernon 2005)).

Thus, we held the 120-day period for serving the Meads= expert report commenced from the date the Meads filed the first petition asserting their health care liability claimCa period which had expired before the Meads nonsuited their claims against the health care providers.  Id. at 68.  Because the Meads were not entitled to more than 120 days under the statute, their expert report was served untimely, and, upon the health care providers= motions, the trial court was required to enter an order dismissing the Meads= claims against the health care providers with prejudice to refiling the claim.  Id. at 76. 


Because this court has already decided this identical issue on identical facts against the Meads in Mokkala,[7] we, accordingly, hold the 120-day period for serving the expert report and the expert=s curriculum vitae commenced from the date the Meads originally filed their health care liability claim against D=Arcy, i.e., November 23, 2003.  Thus, the  the trial court abused its discretion in denying D=Arcy=s motion to dismiss the Meads health care liability claims against him and his first issue is sustained.

We, therefore, reverse the order of the trial court and remand with instructions to the trial court to award D=Arcy his reasonable attorney fees and costs of court and to render judgment dismissing with prejudice the Meads= claims against D=Arcy. 

 

 

 

 

 

/s/      J. Harvey Hudson

Justice

 

 

 

 

Judgment rendered and Memorandum Opinion filed August 1, 2006.

Panel consists of Justices Hudson, Mirabal, and Amidei.[8]



[1]  Section 51.014(9) of the Texas Civil Practice and Remedies Code provides for the interlocutory appeal of the trial court=s denial of the defendant physician=s motion to dismiss under Section 74. 351(b) of the Texas Civil Practice and Remedies Code due to the plaintiff=s failure to timely serve his expert report.  Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(9) (Vernon Supp. 2005). 

[2]  On April 12, the Meads filed a first amended original petition in the first lawsuit, even though they had already filed their motion for a nonsuit.  D=Arcy states that he was not served with the amended petition.

[3]  With respect to a defendant physician or health care provider, if the expert report has not been served in the 120-day time period, on the defendant physician=s or health care provider=s motion, the court shall enter a order that:

 

(1) awards to the affected physician or health care provider reasonable attorney fees and costs of court incurred by the physician or health care provider; and

(2) dismiss 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). 

[4]  The original petition filed in the 2003 case, the March 24, 2004 notice of filing of expert report, the Meads= motion for nonsuit filed on April 2, 2004, and the first amended original petition filed in the 2003 case on April 7, 2004, are not in the record for this appeal.  However, we take judicial notice of the record in the Mokkala appealCappellate cause nos. 14-04-00708-CV and 14-04-00845-CV.  We note the parties do not dispute the dates on which the relevant events occurred, only the consequences of those events. 

[5]  D=Arcy raised two additional issues in this appeal which the Mokkala appellants did not raise.  In his second and third issues, D=Arcy contends the trial court abused its discretion in denying his motion to dismiss because it improperly allowed the Meads to utilize an expert witness of a different specialty (oncology) without establishing the expert was qualified to opine on the standard of care or breach thereof for a physician in D=Arcy=s specialty (emergency medicine), and because the expert report does not adequately establish the standard of care, how D=Arcy breached the standard of care, or how any such breach proximately caused injury or damages to the Meads.  However, because of our disposition of his first issue, we need not address these issues. 

[6]  See Tex. R. Civ. P. 162 (AAt any time before the plaintiff has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case, or take a non-suit, which shall be entered in the minutes.@). 

[7]  See Guest v. Cochran, 993 S.W.2d 397, 404 n.6 (Tex. App.CHouston [14th Dist.] 1999, pet. denied) (AWe are . . . bound by prior opinions issued by this court.@).

[8]  Senior Justice Margaret Garner Mirabal and Former Justice Maurice E. Amidei sitting by assignment.