Whitworth v. Blumenthal

FITZGERALD, Justice,

dissenting.

The majority relies upon the recent Texas Supreme Court decision in American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873 (2001), to conclude that the Whitworths’ report did not constitute a good faith effort to comply with the Medical Liability and Insurance Improvement Act, Tex.Rev.Civ. Stat. Ann. art. 4590i (Vernon Supp.2001) (the “Act”) and its definition of an expert report. I agree with that conclusion. However, because I believe Palacios also compels the conclusion that subsection (g) of the Act does not apply and, therefore, the Whitworths were not entitled to a thirty-day grace period under that provision, I must respectfully dissent.

The Palacios Directive

The Texas Supreme Court recently determined the standards for reviewing an expert report under the Act. See Palac-ios, 46 S.W.3d at 875-76. In that case, the court acknowledged the significance of expert testimony to a medical-malpractice case and identified the early elicitation of expert witness opinions as “an obvious place to start in attempting to reduce frivolous lawsuits.” Id. To that end, the Legislature created section 13.01 of the Act, requiring a medical-malpractice plaintiff to produce a report setting forth expert opinions fundamental to the legitimacy of her case. And to that end, the Palacios court set forth a five-step analysis for expert reports required by the Act:

[1] in section 13.01, the Legislature requires medical-malpractice plaintiffs, within 180 days of filing suit, either to provide each defendant physician and *403health-care provider with an expert report and the expert’s curriculum vitae, or to nonsuit the claims. Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(d). [2] If the plaintiff fails within the time allowed either to provide the expert reports and curriculum vitae, or to nonsuit the case, the trial court must sanction the plaintiff by dismissing the case with prejudice, awarding costs and attorney’s fees to the defendant, and ordering the forfeiture of any applicable cost bond necessary to pay that award. Id. § 13.01(e). [3] If the plaintiff does timely file a report, the defendant may move to challenge the adequacy of the report, and the trial court must grant the motion if “it appears to the court ... that the report does not represent a good faith effort to comply with the definition of an expert report.” Id. § 13.01(Z). [4] The statute defines an expert report as “a written report by an expert that provides a fair summary of the expert’s opinions ... regarding applicable standards of care, the manner in which the care rendered ... failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.” § 13.01(r)(6). [5] If a trial court determines that an expert report does not meet these statutory requirements and the time for filing a report has passed, it must then dismiss with prejudice the claims against the defendant who has challenged the report. Id. § 13.01(e).

Id. at 877 (numbering and emphasis added).

Applying the Palacios step-by-step analysis to the Whitworths’ expert report yields the following conclusions:

1. the Whitworths did provide their expert’s report and curriculum vitae to Dr. Blumenthal within 180 days of filing suit, as required by section 13.01(d);
2. thus, in the first instance, the claim against Dr. Blumenthal avoided dismissal under section 13.01(e);
3. Dr. Blumenthal did file a motion challenging the adequacy of the Whitworths’ report pursuant to section 13.01(2);
4. the trial court concluded, and the majority agrees, that the report does not meet the statutory requirements set forth by section 13.01 (r)(6) and is, therefore, inadequate;
5. therefore, because the time for filing a report had passed, the trial court correctly dismissed the claims against Dr. Blumenthal with prejudice pursuant to section 13.01(e).

See id. According to the Palacios directive, once a court has concluded that an expert report is inadequate and that the time for filing has passed, dismissal is mandatory. See id. at 880 (having concluded expert’s report was not a good-faith summary of section 13.01(r)(6) requirements, and 180-day period having passed, section 13.01(e) required court to dismiss with prejudice).

The Whitworths’ reliance upon subsection (g) to rescue them from the sanctions of section 13.01(e) is misplaced.1 Subsec*404tion (g) is not implicated in the fifth step of the supreme court’s analysis for good reason: if the plaintiff had “failed to comply with a deadline established by Subsection (d),” as subsection (g) envisions, then that situation would have been addressed in the second step of Palacios ’ blueprint. The case would have been dismissed if the missed deadline were either intentional or the result of conscious indifference; the Whitworths would have been given a thirty-day grace period if the missed deadline were merely the result of an accident or a mistake.

As it is, according to Palacios, when the trial court concluded that the expert report was inadequate and the time for filing was past, it had no choice but to dismiss the claims against Dr. Blumenthal. I would affirm that dismissal.

The Language and Purpose of the Act

The plain language of subsection (g) of the Act supports this application of the Palacios analysis. Neither the Whit-worths nor the majority asserts that the subsection is ambiguous. “When a statute is clear and unambiguous, courts need not resort to rules of construction or extrinsic aids to construe it, but should give the statute its common meaning.” St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997). Thus, when subsection (g) speaks of failing to comply with a “deadline,” that word must be read in accordance with its common meaning. In ordinary usage, a “deadline” is the date by which something is required to be accomplished. It speaks to when something must be done, not to what must be done. The Whitworths did not “fail to comply with a deadline established by Subsection (d),” because they filed their expert report before the date by which subsection (d) required it to be filed.2 Therefore, the Whitworths do not fall within the scope of subsection (g).

Despite my conclusion that a “deadline” focuses on time and not on content, the circumstances compel me to address the majority’s content-related reasoning that equates an inadequate expert report with no expert report. The majority appears to follow this line of reasoning:

• subsection (d) requires an expert report be filed by a certain deadline;
• subsection (r)(6) defines “expert report” to include certain specific criteria; 3
• a proposed report that does not include the criteria of subsection (r)(6) is, by definition, not an “expert report”;
• if a party files such a report — i.e., one that does not satisfy subsection (r)(6) — then she has not filed an “expert report” at all;
• therefore, she cannot possibly have filed an “expert report” by the deadline in subsection (d), and subsection (g) must apply.

I have significant concerns with this reasoning and the result it achieves.

*405Initially, the majority insists that whenever the words “expert report” are used together in this statute, they can mean only a report that adequately meets the criteria of subsection (r)(6). This reasoning ignores an entire category of reports that are within the Act’s contemplation: those that are proffered by a party as expert reports, but which are eventually adjudged inadequate for that purpose. We know the Act contemplates such reports, because it incorporates a mechanism for challenging and evaluating them. See Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(i ).4 Some number of expert reports will be evaluated this way and will be determined inadequate, but nothing in the Act suggests that inadequate reports are deemed never to have existed.5 See id.

In common usage and in the Act itself, there is a difference between work that is inadequate and work that has never been done. I would conclude that the Legislature intended the definition of “expert report” in subsection (r)(6) simply to set forth the standards for an adequate expert report, not to consign inadequate expert reports to veritable non-existence.

This analysis should not raise concerns about disparate treatment of differently-situated plaintiffs, i.e. those who file no report as opposed to those who file an inadequate report in a timely fashion. In truth, the Texas Legislature has created a legislative scheme that balances the competing concerns of all plaintiffs and all defendants in a particular manner that we must respect. According to that scheme, for example, a plaintiff who misses an early filing deadline by accident or by mistake receives a grace period to cure her blameless error. But the defendant is still guaranteed a relatively speedy initial protection: if no expert is found within the grace period who will place an imprimatur on the plaintiffs claim, then that claim will be dismissed. This threshold process exemplifies the Legislature’s efforts to craft procedures that would quickly identify, and thus reduce, frivolous lawsuits. See Palacios, 46 S.W.3d at 876-77 (citing House Comm, on Civ. Prac., Bill Analysis, Tex. H.B. 971, 74th Leg., R.S. (1995)).

Within section 13.01’s threshold process, all plaintiffs are held to the same two-pronged duty: they must timely produce an adequate expert report. The Act sets requirements for each prong, but neither is harsh or unforgiving.

• Subsection (g) addresses the timeliness prong: it recognizes that mistakes can be made concerning timeliness, and it provides a grace period when those mistakes occur.
• Subsection (l) addresses the adequacy prong: it incorporates into the expert report definition a “good faith” standard that gives a plaintiff some margin within which to work. Her proffered report need not marshal all her proof, nor present evidence in formal summary judgment or trial form. It need only provide enough information on each of the statutory elements (i.e., standard of care, breach and causation) to inform the defendant of the specific conduct called into question and to provide a *406basis for the trial court to conclude the claims have merit. See Palacios, 46 S.W.3d at 878-79 (“expert report must represent only a good-faith effort to provide a fair summary of the expert’s opinions”).

Thus, the Act provides an appropriate “remedy” for the medical-malpractice plaintiff on each prong: more time (i.e., a 30-day grace period) when the plaintiffs focus is timeliness, and a more flexible substantive standard (i.e., good faith compliance) when the plaintiffs focus is on adequacy. The Act provides realistic requirements for all plaintiffs at all stages of the litigation.

Finally, as the Palacios court noted, the Legislature believed early elicitation of expert witness opinions was a significant first step in attempting to reduce frivolous lawsuits. Id. at 875-76. I believe limiting application of subsection (g) to early issues of timeliness supports this purpose of the Act in several ways. First, the limitation encourages each plaintiff to make her first effort her best effort, rather than relying upon an automatic second chance if her first is deemed inadequate.6 Second, although the majority is confident that subsection (g) could only be applied once in each case, I do not share their confidence. Subsection (g) is not limited by its own. terms to a one-time application as subsection (f) is limited. There may be any number of “mistakes” that could be made by the attorney in subsequent reports that would result in rulings that — once again— no “expert report” had been filed by the subsection (d) deadline. Third, imposing this limitation would avoid the kind of late-in-the-day analysis of a plaintiffs conduct that occurred in this case.7 And, fourth, the Legislature could easily have made provision for either submitting amended expert reports or allowing extensions to refile them after a finding of inadequacy, but it did not do so.

“Courts must take statutes as they find them.” St. Luke’s Hosp., 952 S.W.2d at 505. Our task is to apply the Legislature’s scheme to the facts of this case. The Act and Palacios compel the same conclusion: the Whitworths were not entitled to relief under subsection (g) of the Act. The trial court correctly dismissed their action.

For all the reasons stated herein, I would affirm the trial court’s judgment.

. Subsection (g) of the Act states:

Notwithstanding any other provision of this section, if a claimant has failed to comply with a deadline established by Subsection (d) of this section and after hearing the court finds that the failure of the claimant or the claimant’s attorney was not intentional or the result of conscious indifference but was the result of accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection. A motion by a claimant for relief under this subsection shall be considered timely if it is filed before any hearing on a motion by a defendant under Subsection (e) of this section.

*404Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(g).

. The trial court's Findings of Fact indicate that February 12, 1997, was the 180th day after suit was filed. The report was filed on December 16, 1996.

. That subsection states:

"Expert report” means a written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.

Tex.Rev.Civ. Stat.Ann. art. 4590i, § 13.01(r)(6).

. This subsection states:

A court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the definition of an expert report in Subsection (r)(6) of this section.

Tex.Rev.Civ. Stat. Ann. art. 4590i, § 13.01(f).

. "Adequacy,” the term used in subsection (/), is not defined by the Act. Therefore we give it its ordinary meaning: sufficiency for a specific requirement. See Webster's Ninth New Collegiate Dict. 56 (1985). "Inadequate” simply means insufficient. Id. at 607.

. While subsection (g) is not written as an automatic grant, it is difficult to imagine a situation in which the attorney proffering the inadequate expert report could not assert that he "mistakenly” believed the report was adequate, just as counsel for the Whitworths has asserted in this case.

. Palacios makes clear that review of the adequacy of an expert report is limited to the substance of the report itself. Id. at 878 ("the only information relevant to the inquiry is within the four comers of the document”). A subsection (g) determination, on the other hand, must evaluate the conduct of the plaintiff or her attorney and determine whether that conduct was blameworthy.