IN RE: MCALLEN MEDICAL CENTER, INC., D/B/A MCALLEN MEDICAL CENTER, AND UNIVERSAL HEALTH SERVICES, INC.--Appeal from 332nd District Court of Hidalgo County

NUMBER 13-05-441-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

____________________________________________________________

IN RE McALLEN MEDICAL CENTER, INC.

D/B/A McALLEN MEDICAL CENTER

AND UNIVERSAL HEALTH SERVICES, INC.

____________________________________________________________

On Petition for Writ of Mandamus ____________________________________________________________

MEMORANDUM OPINION

Before Justices Hinojosa, Ya ez, and Rodriguez

Memorandum Opinion Per Curiam

Relators, McAllen Medical Center, Inc. d/b/a McAllen Medical Center and Universal Health Services, Inc., filed a petition for writ of mandamus with this Court on July 12, 2005. Through their petition, relators ask this Court to direct the trial court to vacate its order denying relators= motion to dismiss all of the claims of the real parties in interest, Ariceli Garza, et al., for failing to comply with the statutory duty to provide adequate expert reports in a medical malpractice case. On July 14, 2005, the Court requested that real parties in interest file a response, and their response was filed with this Court on August 29, 2005. To be entitled to mandamus relief, relators must show that the trial court committed a clear abuse of discretion and that they have no adequate remedy by appeal. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 36 (Tex. 2004); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. Walker, 827 S.W.2d at 839, 840. Determining whether a party has an adequate remedy by appeal requires a Acareful balance of jurisprudential considerations@ that Aimplicate both public and private interests.@ In re Prudential, 148 S.W.3d at 136. When the benefits of mandamus review outweigh the detriments, appellate courts must consider whether the appellate remedy is adequate. Id.

The court has considered relators= petition for writ of mandamus and the response filed by real parties in interest.[1] We conclude that relators have failed to show either that the trial court clearly abused its discretion or that relators have no adequate remedy by appeal. See In re Woman's Hospital of Texas, Inc., 141 S.W.3d 144, 152 53 (Tex. 2004) (Owen, J., concurring in part and dissenting in part to denial of petitions for writ of mandamus); In re Schneider, 134 S.W.3d 866, 869 70 (Tex. App.BHouston [14th Dist.] 2004, orig. proceeding); see also In re Christus Spohn Health Sys. Corp., No. 13-04-081-CV, 2004 Tex. App. LEXIS 2232, *2 *3 (Tex. App.BCorpus Christi Mar. 10, 2004, orig proceeding) (memorandum opinion); In re Esparza, No. 13-04-054-CV, 2004 Tex. App. LEXIS 2233, *4 (Tex. App.BCorpus Christi Mar. 10, 2004, orig. proceeding) (memorandum opinion). But see In re Samonte, 163 S.W.3d 229, 238 (Tex. App.CEl Paso 2005, orig. proceeding) (a post trial appeal cannot remedy the deprivation of a statutory due process right to pretrial dismissal with prejudice).

Accordingly, the petition for writ of mandamus is DENIED. See Tex. R. App. P. 52.8(a).

PER CURIAM

Memorandum opinion delivered and filed

this 5th day of October, 2005.

[1] Relators have moved to strike real parties= response as sanctions under Texas Rule of Appellate Procedure 52.11. See Tex. R. App. P. 52.11 (allowing sanctions in original proceedings). We have carefully considered relators= motion and the motion is denied. We would note that we have, however, based our decision herein on the materials that were before the trial court at the time it acted. See, e.g., University of Tex. v. Morris, 162 Tex. 60, 344 S.W.2d 426, 429 (Tex. 1961); Methodist Hosps. v. Tall, 972 S.W.2d 894, 898 (Tex. App.BCorpus Christi 1998, no pet.).