William E. De La Vergne v. Jaime Turner and Liz Garza--Appeal from 131st Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00722-CV
William E. DE LA VERGNE,
Appellant
v.
Jamie TURNER and Liz Garza,
Appellees
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2006-CI-03127
Honorable Rene Diaz, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

 

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Phylis J. Speedlin, Justice

 

Delivered and Filed: June 6, 2007

 

AFFIRMED

 

William E. De La Vergne appeals the trial court's order dismissing his lawsuit for failure to comply with the expert report requirements of section 74.351 of the Texas Civil Practice and Remedies Code. De La Vergne asserts that the trial court abused its discretion in refusing to consider his request for a grace period. De La Vergne also contends that section 74.351 violates the open courts doctrine of the Texas Constitution. We affirm the trial court's order.

Background

De La Vergne filed a health care liability claim against two nurses alleging negligence in connection with an MRI procedure. (1) Although De La Vergne timely filed an expert report, the report was written by a registered nurse. The defendants moved to dismiss the lawsuit on the basis that the nurse was not statutorily qualified to opine as to causation. De La Vergne filed a motion requesting a grace period because he and his attorney had overlooked the provision in section 74.351 requiring a physician to opine as to causation. After a hearing, the trial court denied the motion requesting a grace period and granted the motion to dismiss.

Grace Period

We review the trial court's denial of the grace period and its dismissal of De La Vergne's health care liability claim under an abuse of discretion standard. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003); Danos v. Rittger, No. 01-06-00350-CV, 2007 WL 625816, at *2 (Tex. App.--Houston [1st Dist.] Mar. 1, 2007, no pet.). "[A] party who files suit on claims subject to [section 74.351] is charged with knowledge of the statute and its requirements." Walker, 111 S.W.3d at 64.

An expert report is defined as "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. Civ. Prac. & Rem. Code Ann. 74.351(r)(6) (Vernon Supp. 2006). An expert with respect to a person giving an opinion on causation means a physician who is qualified to render opinions on such causal relationship under the Texas Rules of Evidence. Id. at 74.351(r)(5)(C).

The only expert report served by De La Vergne was written by a registered nurse. De La Vergne concedes that the report did not comply with the statute but contends that the trial court abused its discretion in failing to grant him a grace period. Even if the trial court had granted the grace period, however, the grace period would only have permitted De La Vergne to cure the deficiencies in the timely filed report. Id. at 74.351(c); Danos, 2007 WL 625816, at *3 (comparing grace period provisions under article 4590i and section 74.351). "There is no provision in [section 74.351] that allows a claimant to go beyond the 120-day deadline to cure a deficiency in a report by obtaining a new report from a different expert." Danos, 2007 WL 625816, at *3. Because De La Vergne could only cure the deficiency in the registered nurses's report by obtaining a new report on causation from a physician, the trial court did not abuse its discretion in denying his motion requesting a grace period.

Open Courts

A litigant must raise an open-courts challenge in the trial court. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 222 (Tex. 2002); Bustillos v. Jacobs, 190 S.W.3d 728, 732 (Tex. App.--San Antonio 2005, no pet.). The record reflects that De La Vergne did not raise his open-courts challenge in response to the motion to dismiss. Consequently, we may not consider this issue as grounds for reversal of the trial court's order. Sw. Elec. Power Co., 73 S.W.3d at 222; Bustillos, 190 S.W.3d at 732; see also Herrera v. Seton Nw. Hosp., 212 S.W.3d 452, 460-62 (Tex. App.--Austin 2006, no pet.) (rejecting open courts challenge to section 74.351).

 
Conclusion

The trial court's order is affirmed.

Alma L. L pez, Chief Justice

 

1. De La Vergne filed an earlier lawsuit against the hospital in which he alleged an intentional tort arising from the same occurrence; however, that lawsuit was dismissed as an attempt to recast a health care liability claim as an intentional tort.