Sandhya-Rani Mokkala, M.D., Jeffrey D. Carter, D.O. Arlington Orthopedic Asscociates, P.A. 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--Appeal from 333rd District Court of Harris County

Cause No. 14-04-00708-CV Reversed and Remanded; Cause No. 14-04-00845-CV Dismissed as Moot; and Majority and Dissenting Opinions filed June 2, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00708-CV

____________

 SANDHYA-RANI MOKKALA, M.D., JEFFREY D. CARTER, D.O., AND

ARLINGTON ORTHOPEDIC ASSOCIATES, P.A., Appellants

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

_________________________________________________________________

NO. 14-04-00845-CV

____________

SANDHYA-RANI MOKKALA, 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. 03-64427

_________________________________________________________________

D I S S E N T I N G O P I N I O N

I respectfully dissent to the majority=s reversal as to cause number 14-04-00708-CV because the trial court strictly applied precedent and the statute as written by the Texas Legislature. Accordingly, I cannot conclude that the trial court abused its discretion by denying appellant=s motion to dismiss.

Appellant=s motion to dismiss was, in reality, a request for the trial court to impose the proverbial death penalty on appellees. This court should exercise great caution before concluding that the trial court acted unreasonably, arbitrarily, or without reference to any guiding principles. See Rittmer v. Garza, 65 S.W.3d 718, 721-22 (Tex. App.CHouston [14th Dist.] 2001, no pet.).

The trial court applied section 74.351(a) strictly as written by the Texas Legislature. Tex. Civ. Prac. & Rem. Code Ann. '74.351(a)(Vernon Pamph. 2004-05). The statute merely expresses that the claimant shall, Anot later than the 120th day after the date the claim was filed, serve . . . one or more expert reports . . .@ Id. In contrast, the majority has added a word that the legislature did not include. The statute does not express that the 120-day period for serving expert reports begins on the date the claim was first filed.

Moreover, the majority mistakenly relies on Puls v. Columbia Hospital at Medical City Dallas Subsidiary, L.P., 92 S.W.3d 613 (Tex. App.CDallas 2002, pet. denied) to support its conclusion that the 120-day period began when appellees first filed the 2003 case. Puls is distinguishable. In Puls, the Dallas court of appeals was construing similar language in the predecessor health care liability statute. The claimants in Puls were prosecuting more than one health care liability claim in the same suit. The Dallas court of appeals properly concluded that the Aamendment of a petition to add a new claim constitutes filing of that claim.@ Id. at 618. Succinctly, the proper deduction from the ruling in Puls is as follows: the 120-day period for a health care liability claim begins on the day a claimant files suit and asserts that particular health care liability claim within the pleadings. Otherwise, a claimant might find himself barred from adding a meritorious new claim to an existing lawsuit simply because of the passing of 120 days from the date suit was first filed. I respectfully submit that the Dallas court was appropriately eliminating an unintended procedural trap for the claimant.

Here, the majority creates a trap for the claimant, who should be allowed to reasonably rely on the procedural safeguards afforded under Rule 162, Texas Rules of Civil Procedure. To eliminate the procedural safeguard, the majority describes a Apurported conflict@ between the application of section 74.351(a) and Rule 162 where none exists. By creating a conflict, the majority can neatly dispose of Rule 162 by deferring to the statute. See Tex. Civ. Prac. & Rem. Code. Ann. '74.002(a) (Vernon Pamph. 2004B05) (stating Chapter 74 controls to the extent it conflicts with another law). In a footnote, the majority refers to language in the predecessor statute permitting a plaintiff to non-suit an action if he fails to timely furnish an expert report. See Act of May 5, 1995, 74th Leg., R.S., ch. 140, ' 1, sec. 13.01 (d) (2), (n), 1995 Tex. Gen. Laws 985, 986, 987 repealed 2003). Cf. Tex. Civ. Prac. & Rem. Code Ann. '74.351(a). Notwithstanding inferences the majority has drawn from legislative history, it is my considered opinion that there is no conflict between the statute and the rule. Obviously, when the legislature enacted a comprehensive overhaul of health care liability in Texas, it could have expressly eliminated the claimant=s procedural safeguard of a Rule 162 non-suit without prejudice, but it did not.

Until today, no appellate court in Texas has concluded that a health care liability claimant who files a non-suit without prejudice may not be returned to status quo ante without prejudice to initiate another suit. On the contrary, under similar facts, our sister court in Corpus Christi concluded that the trial court erred when it dismissed the second case after a claimant filed a non-suit without prejudice in the first case. Martinez v. Lakshmikanth, 1 S.W.3d 144 (Tex. App.CCorpus Christi 1999, pet. denied). Importantly, in Martinez, the 180-day period prescribed in the predecessor statute expired before the plaintiff filed a non-suit. See Tex. Rev. Civ. Stat. Ann. art. 4590i, '1301(d)(2). The Corpus Christi court correctly concluded that the defendant waived his right to a remedy under the statute by not seeking dismissal after expiration of the 180-day period. Id. at 148. Instead, the court acknowledged that Rule 162 controlled. Id. at 149. In other words, under the former act, medical malpractice claimants could avail themselves of the benefits of Rule 162 even when they failed to timely file a non-suit before expiration of the 180-day period. The legislature enacted painstaking reform of health care liability in Texas. The tactical benefit afforded all litigants under Rule 162, Texas Rules of Civil Procedure, was not addressed. Accordingly, I respectfully disagree with the conclusion of the majority that the legislature intended to preclude litigants from exercising the right to file a non-suit without prejudice as prescribed by Rule 162 when it enacted House Bill 4.

It is my considered opinion that health care liability defendants are adequately protected through statutory entitlement to a dismissal with prejudice if a motion is timely filed before claimants file a non-suit. Tex. Civ. Prac. & Rem. Code Ann. ' 74.351 (b) (2) (Vernon Pamph. 2004B05). Moreover, in consideration of the undisputed chronology of events, I would not engage in an analysis of legislative history to support the conclusion that the trial court acted arbitrarily or without reference to guiding principles.

Accordingly, I respectfully dissent.

/s/ Charles W. Seymore

Justice

Judgment rendered and Majority and Dissenting Opinions filed June 2, 2005.

Panel consists of Justices Edelman, Seymore, and Guzman. (Guzman, J., majority.)