John T. Nguyen, MD, FACS, FICS v. Mary Lavigne

Reversed and Rendered in Part and Remanded in Part and Memorandum
Opinion filed July 6, 2021.

In The

Fourteenth Court of Appeals

NO. 14-20-00185-CV

JOHN T. NGUYEN, MD, FACS, FICS, Appellant
V.
MARY LAVIGNE, Appellee

On Appeal from the 400th District Court
Fort Bend County, Texas
Trial Court Cause No. 19-DCV-263499

MEMORANDUM OPINION

Appellee Mary Lavigne filed suit against appellant John T. Nguyen, M.D.,
FACS, FICS, alleging health care liability claims arising out of surgical procedures
Nguyen performed. Lavigne failed to file an expert report within the time-period
provided by the Texas Medical Liability Act. See Tex. Civ. Prac. & Rem. Code
Ann. § 74.351(a) (requiring health care liability claimants to serve an expert report
upon each defendant not later than 120 days after the defendant’s answer is filed).
Nguyen filed a motion to dismiss for Lavigne’s failure to meet the statutory
deadline. Id. § 74.351(b). The trial court denied the motion and Nguyen timely
appealed. Because Lavigne failed to meet the statutory deadline to serve an expert
report, her claims were subject to mandatory dismissal under section 74.351(b) and
therefore the trial court abused its discretion when it denied Nguyen’s motion to
dismiss. We reverse the trial court’s order denying Nguyen’s motion to dismiss,
render judgment dismissing Lavigne’s claims against Nguyen with prejudice, and
remand for a determination of reasonable attorney’s fees and costs.

BACKGROUND

Nguyen is a plastic surgeon who performed surgical procedures on Lavigne
in April 2017. (CR7-8) Lavigne experienced problems, including severe pain,
after the surgery. (CR8) Believing Nguyen had failed to exercise reasonable
medical care during and after the surgery, Lavigne filed suit against Nguyen.
Nguyen filed his answer and when Lavigne did not serve the required expert report
and curriculum vitae within the statutory deadline, Nguyen filed a motion to
dismiss Lavigne’s lawsuit against him. (CR26) Lavigne filed a response opposing
Nguyen’s motion. Lavigne asserted that Nguyen had not provided her with her
complete medical records which prevented her from providing “an accurate expert
report.” (CR78) She further asserted that her counsel was only then “preparing
discovery requests to send to the Defendant to get the full copy of her medical
records.” (CR78) The only evidence Lavigne attached to her response was her
attorney’s affidavit stating that the “failure to file the expert [report] in this cause
was not an intentional act but a mere error in docketing.” (CR86) The record does
not contain any motions filed by Lavigne seeking the trial court’s assistance with
the production of Lavigne’s medical records. After the statutory deadline for filing
her expert report had passed, Lavigne filed a motion for extension of time to file

2
her expert report citing former article 4590i, the predecessor to chapter 74, the
Texas Medical Liability Act, in support of her request. (CR71) Lavigne attached
an affidavit from a surgeon opining that while he did have some of Lavigne’s
medical records, he could not prepare a proper report addressing Lavigne’s claims
because he did not have all of Lavigne’s medical records. (CR75) At the oral
hearing on Nguyen’s motion to dismiss, the trial court indicated she would deny
Nguyen’s motion and would grant Lavigne a thirty-day extension to file her expert
report. (RR12-13) The trial court subsequently signed an order denying Nguyen’s
motion to dismiss. (SuppCR4-5) This appeal followed.

ANALYSIS

In three issues Nguyen argues that the trial court abused its discretion when
it (1) denied his motion to dismiss Lavigne’s claims against him because Lavigne
failed to file the required expert report within the statutory deadline; and (2) failed
to award him his attorney’s fees and costs as required by the Texas Medical
Liability Act. We address these issues together.

I. Standard of review and applicable law

We review a trial court’s ruling on a motion to dismiss for failure to comply
with section 74.351 under an abuse of discretion standard. Am. Transitional Care
Cntrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001); Univ. of Tex.
Med. Branch at Galveston v. Callas, 497 S.W.3d 58, 62 (Tex. App.—Houston
[14th Dist.] 2016, pet. denied). A trial court abuses its discretion if it acts
arbitrarily or unreasonably or without reference to guiding rules or principles.
Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam). A trial
court has no discretion in determining what the law is or applying the law to the
facts. Callas, 497 S.W.3d at 62 (citing Walker v. Packer, 827 S.W.2d 833, 840
(Tex. 1992)). Therefore, the trial court’s failure to analyze or apply the law

3
correctly is an abuse of discretion. Id.

Determining whether the trial court abused its discretion when it denied
Nguyen’s motion to dismiss Lavigne’s lawsuit presents an issue of statutory
construction. The primary goal when interpreting a statute is to effectuate “the
Legislature’s intent as expressed by the plain and common meaning of the statute’s
words.” F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex.
2007). “Where statutory text is clear, that text is determinative of legislative intent
unless the plain meaning of the statute’s words would produce an absurd result.”
Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 452 (Tex. 2012).

“To proceed with a health care liability claim, a claimant must comply with
the expert report requirement of the Texas Medical Liability Act.” Callas, 497
S.W.3d at 61 n.1. Section 74.351, entitled “Expert Report,” provides:

In a health care liability claim, a claimant shall, not later than the
120th day after the date each defendant’s original answer is filed,
serve on that 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. Each defendant physician or health
care provider whose conduct is implicated in a report must file and
serve any objection to the sufficiency of the report not later than the
later of the 21st day after the date the report is served or the 21st day
after the date the defendant’s answer is filed, failing which all
objections are waived.

Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). Section 74.351 also provides:

If, as to a defendant physician or health care provider, an expert report
has not been served within the period specified by Subsection (a), the
court, on the motion of the affected physician or health care provider,
shall, subject to Subsection (c), enter an order that:
(1) awards to the affected physician or health care provider

4
 reasonable attorney’s fees and costs of court incurred by the
physician or health care provider; and
(2) dismisses the claim with respect to the physician or health
care provider, with prejudice to the refiling of the claim.

Id. § 74.351(b) (emphasis added).

Section 74.351 requires the claimant to serve the expert report and
curriculum vitae on the party or the party’s attorney by such deadline. Id. Section
74.351(a)’s “strict 120[-]day deadline can lead to seemingly harsh results.”
Ogletree, 262 S.W.3d at 320. “Strict compliance with [section 74.351(a)] is
mandatory.” Zanchi v. Lane, 408 S.W.3d 373, 376 (Tex. 2013); see Callas, 497
S.W.3d at 63. If the plaintiff has not served the required expert report by the
statutory deadline, and the parties have not agreed to extend the deadline, upon the
motion of the affected physician, the statute requires the trial court to dismiss the
claim with prejudice. Zanchi, 408 S.W.3d at 376. The trial court does not have
discretion to do anything else. Estate of Regis v. Harris Cty. Hosp. Dist., 208
S.W.3d 64, 67 (Tex. App.—Houston [14th Dist.] 2006, no pet.). This includes
being denied the discretion to grant an extension for equitable reasons. Id. at 68.
While this strict deadline may result in harsh consequences, it is the province of the
legislature, not courts, to provide for extensions or grace periods regarding the
expert report deadline. Id.

II. The trial court abused its discretion when it failed to dismiss Lavigne’s
claims.
Here, it is undisputed that Lavigne alleged a health care liability claim
against Nguyen and was therefore required to comply with the Chapter 74 expert
report requirement. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). It is also
undisputed that Lavigne did not serve an expert report within the 120-day time-
period mandated by the statute. There was no agreement between the parties to
5
extend that deadline. In this situation, the trial court was required to dismiss
Lavigne’s lawsuit and then award the defendant physician his reasonable
attorney’s fees and costs of court. Id. § 74.351(b). It had no discretion to do
otherwise. Estate of Regis, 208 S.W.3d at 67. This includes situations where the
health care liability claimant alleges that she did not receive her complete medical
records. Id. at 66–67 (rejecting argument claimant was entitled to an equitable
extension because the defendant failed to provide her with her medical records). It
also includes cases where the claimant alleges the failure to timely file an expert
report was due to accident or mistake. See Univ. of Tex. Health Sci. Ctr. v. Joplin,
525 S.W.3d 772, 778–79 (Tex. App.—Houston [14th Dist.] 2017, pet. denied)
(“As a result, Texas courts, including this one, have refused to read into the statute
any other exception to the deadline for effecting service of the expert report and
CV, whether based on good faith, due diligence, mistake, or other unintentional
conduct.”). In addition, because Lavigne did not serve any report before the
statutory deadline, the trial court did not have the discretion to grant a thirty-day
extension to file an amended report. See Estate of Regis, 208 S.W.3d at 67
(“Although section 74.351(c) gives a court discretion to grant 30 days to amend a
deficient report, this section applies only when an initial report is timely filed; it is
not available to extend the deadline for first filing a report.”); Valley Baptist Med.
Ctr. v. Azua, 198 S.W.3d 810, 815 (Tex. App.—Corpus Christi 2006, no pet.)
(“[A] trial court does not have authority to grant an extension when no report is
served within 120 days of filing the claim.”). Based on the plain language of the
statute, we conclude that because the parties did not agree to extend the deadline,
section 74.351 required Lavigne, not later than the 120th day after Nguyen filed his
original answer, to serve Nguyen with the statutorily-required expert report and
curriculum vitae. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a). Because
she did not, the trial court abused its discretion when it failed to grant Nguyen’s
6
motion to dismiss. An award of reasonable attorney’s fees and costs is required
when a trial court dismisses a claimant’s health care liability claim for failing to
serve an expert report; we must therefore remand to the trial court for a
determination of the amount of this award. See Univ. of Tex. Health Sci. Ctr., 525
S.W.3d at 784.

CONCLUSION

Having sustained Nguyen’s issues on appeal, we reverse the trial court’s
order denying his motion to dismiss and render judgment dismissing Lavigne’s
claims against Nguyen with prejudice. Because Nguyen requested an award of
reasonable attorney’s fees and court costs, we remand for a determination of the
amount of this award.

/s/ Jerry Zimmerer
Justice

Panel consists of Justices Wise, Zimmerer, and Poissant.

7