Hugo M. Toro, M.D. v. Emilio Alaniz, Sr., Individually, et al.; Eliza A. Hinojosa, Individually, et al. and Delsa Villa, Individually, et al.--Appeal from 229th Judicial District Court of Duval County

MEMORANDUM OPINION
No. 04-06-00814-CV
Hugo M. TORO, M.D.,
Appellant
v.

Emilio ALANIZ, Sr., Individually and

as Representative for the Estate of Maria Santos Alaniz, Deceased, et. al.,

Appellee
From the 229th Judicial District Court, Duval County, Texas
Trial Court No. DC-06-168
Honorable Alex W. Gabert, Judge Presiding

Opinion by: Rebecca Simmons, Justice

 

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

 

REVERSED AND RENDERED

 

Delivered and Filed: April 25, 2007

 

Emilio Alaniz, Sr., individually and as representative for the Estate of Maria Santos Alaniz, Deceased, et al. (collectively "Alaniz") filed a medical malpractice suit against Pfizer, Inc. and Hugo M. Toro, M.D. Toro subsequently filed a motion to dismiss based on Alaniz's failure to provide an expert report. (1) The trial court denied the motion. On appeal, Toro contends that the trial court erred in failing to dismiss the case because Alaniz's expert report was untimely. We reverse the trial court's order and render judgment dismissing with prejudice Alaniz's claims with regard to Appellant Hugo M. Toro, M.D.

Factual Background

On May 31, 2006, Alaniz filed his Original Petition with the clerk of the trial court. The petition alleged several causes of action against Pfizer and negligence against Toro. The claims of negligence against Toro alleged negligent prescribing, testing and supervision of certain medication. On November 2, 2006, Toro filed a motion to dismiss with prejudice based on Alaniz's failure to comply with Tex. Civ. Prac. & Rem. Code 74.351(a) (Vernon Supp. 2006). Toro argued that Alaniz failed to provide an expert report within 120 days of filing his original petition. On November 13, 2006, and immediately prior to the hearing on the motion to dismiss, Alaniz filed his First Amended Petition. The only change included the following language:

93. Defendant TORO was negligent in that he failed to discontinue the prescribing of CELEBREX despite multiple adverse cardiovascular events occurring in approximately June 2002, November, 2003 and May, 2004, as a reasonably prudent physician would do.

 

The trial court denied Toro's motion to dismiss.

Discussion

We review the denial of a motion to dismiss filed pursuant to Section 74.351 under an abuse of discretion standard. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001); Ponce v. El Paso Healthcare Sys., Ltd., 55 S.W.3d 34, 36 (Tex. App.--El Paso 2001, pet. denied). We therefore determine whether the trial court acted arbitrarily and without reference to any guiding rules or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).

Alaniz contends that, in accordance with Section 74.351, his expert report was not due until 120 days after the amended petition alleging a new claim. See Tex. Civ. Prac. & Rem. Code 74.351(a). Section 74.351(a) states that a party filing a health care liability claim must serve one or more expert reports on each party or the party's attorney not later than the 120th day after the date the original petition is filed. Id. Alaniz argues that his expert report was due within 120 days of filing his amended petition. We disagree. The timeline for expert reports filed in accordance with Section 74.351(a) begins when the lawsuit is filed and cannot be extended by filing an additional claim based on the same assertions alleged in the original petition. See Park v. Lynch, 194 S.W.3d 95, 100 (Tex. App.--Dallas 2006, no pet. h.) (the time for filing expert reports under Section 74.351(a) begins with the date that the claimant files the first lawsuit asserting a health care liability claim, even if the claimant nonsuits the first lawsuit and files a new one); Mokkala v. Mead, 178 S.W.3d 66, 76 (Tex. App.--Houston [14th Dist.] 2005, pet. granted) (allowing a plaintiff to restart the period for serving an expert report by simply nonsuiting her health care liability claim and refiling that same claim is inconsistent with the policies, goals, and statutory provisions of statute).

The gravamen of Alaniz's complaint against Toro is his negligence in prescribing the medication in question without proper testing and supervision. Simply providing additional examples of the alleged negligence does not change the underlying claim. Accordingly, Alaniz was required to file his expert report within 120 days of filing his original petition. Because he failed to timely file the expert report, the trial court had no option but to dismiss the underlying case. We therefore sustain Toro's issue on appeal and reverse the trial court's order. We render judgment dismissing Alaniz's claims against Toro with prejudice.

 

Rebecca Simmons, Justice

 

1. Pfizer, Inc. was not a part of Hugo's motion to dismiss. Accordingly, we do not address any pending claims against Pfizer, Inc.