ROBERT C. RENAUD v. CHRISTUS SPOHN HEALTH SYSTEM CORPORATION D/B/A CHRISTUS SPOHN HOSPITAL SHORELINE AND FRED PURNELL THOMAS, JR., M.D.--Appeal from 319th District Court of Nueces County

NUMBER 13-04-524-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

 ROBERT C. RENAUD, Appellant,

v.

CHRISTUS SPOHN HEALTH SYSTEM

CORPORATION D/B/A CHRISTUS SPOHN

HOSPITAL SHORELINE AND FRED

PURNELL THOMAS, JR., M.D., Appellees.

___________________________________________________________________

On appeal from the 319th District Court

of Nueces County, Texas.

___________________________________________________ _______________

  MEMORANDUM OPINION[1]

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Rodriguez

This appeal arises from the trial court's dismissal of a medical malpractice claim brought by appellant, Robert C. Renaud (Renaud), against appellees, Christus Spohn Health System Corporation d/b/a Christus Spohn Hospital Shoreline (Spohn Hospital) and Fred Purnell Thomas, Jr., M.D. (Dr. Thomas). By two issues, appellant contends the trial court (1) abused its discretion by denying his motion to extend time to file a supplemental expert report and granting appellees' motions to dismiss and (2) erred in denying his motion to strike portions of the affidavit of Andrew Lehrman. We reverse and remand.

I. Background

Appellant underwent a femoral-popliteal bypass graft, which was performed by Dr. Thomas at Spohn Hospital. Following the surgery, an infection developed in the graft site. Dr. Thomas performed additional surgical procedures to treat appellant's wound. Appellant then sought a second opinion regarding his medical condition and was transferred to St. Luke's Episcopal Hospital in Houston, Texas, where he received additional treatment.

Appellant filed the underlying malpractice suit against Dr. Thomas and Spohn Hospital alleging medical negligence. In his petition, appellant alleged that Spohn Hospital failed to (1) properly assess his condition and (2) properly treat him before the ligation of his femoral artery. Appellant also alleged that Dr. Thomas failed to (1) adequately assess his condition prior to ordering the ligation of his femoral artery, (2) inform him of any alternatives prior to the ligation of his femoral artery, and (3) provide adequate and timely medical care.

Pursuant to section 13.01(d) of the Medical Liability and Insurance Improvement Act (the Act), appellant filed an expert report prepared by Michael M. Bergman, M.D. See Act approved June 10, 2003, 73rd Leg., R.S., ch. 625, ' 3, sec. 13.01, 1993 Tex. Gen. Laws 2347, 2347-49, amended by Act approved May 18, 1995, 74th Leg., R.S., ch. 140, ' 1, sec. 13.01, 1995 Tex. Gen. Laws 985, 985-87, repealed by Act approved June 11, 2003, 78th Leg., R.S., ch. 204, ' 10.09, 2003 Tex. Gen. Laws 847, 884.[2] Alleging that the expert report was inadequate and that it failed to comply with the requirements of section 13.01 of the Act, each appellee moved to dismiss the suit. See id. In response, appellant filed a motion to extend time to file a supplemental expert report, supported by the affidavit of his counsel, Les Mendelsohn. Dr. Thomas then filed an amended motion to dismiss and a response to appellant's motion for extension of time, in which Spohn Hospital joined. Included in Dr. Thomas's response was the affidavit of his counsel, Andrew Lehrman, which sought to controvert the affidavit of appellant's counsel. Appellant filed a motion to strike portions of Lehrman's affidavit. After a hearing on the motions, the trial court granted appellees' motions to dismiss the suit and denied appellant's motion for extension of time and motion to strike.

II. Denial of Motion to Extend Time

By his first issue, appellant contends the trial court abused its discretion by denying his motion to extend time to file a supplemental expert report and granting appellees' motions to dismiss.

A. Standard of Review

We review (1) a trial court's denial of a motion for extension of time filed pursuant to section 13.01(g) and (2) a trial court's dismissal of a medical malpractice claim for failure to comply with expert report requirements of section 13.01 under an abuse of discretion standard. Walker v. Gutierrez, 111 S.W.3d 56, 61-63 (Tex. 2003). A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to guiding rules or principles. Bowie Mem'l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (per curiam) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). A trial court does not abuse its discretion simply because it may decide a matter within its discretion differently than an appellate court. Moore v. Sutherland, 107 S.W.3d 786, 789 (Tex. App.BTexarkana 2003, pet. denied) (citing Downer, 701 S.W.2d at 242).

B. The Law

Section 13.01(d) of the Act requires a plaintiff in a medical malpractice action, not later than 180 days after suit is filed, to (1) furnish each defendant physician or health care provider an expert report and the expert's curriculum vitae, or (2) voluntarily nonsuit the action against the physician or health care provider. See Act approved June 10, 2003, 73rd Leg., R.S., ch. 625, ' 3, sec. 13.01, 1993 Tex. Gen. Laws 2347, 2347-49 (repealed 2003); Am. Transitional Care Ctr. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001); Tesch v. Stroud, 28 S.W.3d 782, 784 (Tex. App.BCorpus Christi 2000, pet. denied). If a plaintiff timely furnishes an expert report and curriculum vitae, a defendant may move to challenge the adequacy of the report, and the trial court must grant the motion, pursuant to section 13.01(l), if "it appears to the court . . . that the report does not represent a good faith effort to comply with the definition of an expert report." See Act approved June 10, 2003, 73rd Leg., R.S., ch. 625, ' 3, sec. 13.01, 1993 Tex. Gen. Laws 2347, 2347-49 (repealed 2003); Am. Transitional Care Ctr. of Tex., Inc., 46 S.W.3d at 877; De Leon v. Vela, 70 S.W.3d 194, 197 (Tex. App.BSan Antonio 2001, pet. denied). Section 13.01(r)(6) of the Act defines an expert report as follows:

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.

See Act approved June 10, 2003, 73rd Leg., R.S., ch. 625, ' 3, sec. 13.01, 1993 Tex. Gen. Laws 2347, 2347-49 (repealed 2003); Am. Transitional Care Ctr. of Tex., Inc., 46 S.W.3d at 877; De Leon, 70 S.W.3d at 197-98; Tesch, 28 S.W.3d at 784. Furthermore, if the trial court determines that an expert report does not meet these statutory requirements and the time for filing an expert report has passed, it must dismiss with prejudice the claims against the defendant who has challenged the report, see Act approved June 10, 2003, 73rd Leg., R.S., ch. 625, ' 3, sec. 13.01, 1993 Tex. Gen. Laws 2347, 2347-49 (repealed 2003); Am. Transitional Care Ctr. of Tex., Inc., 46 S.W.3d at 877; De Leon, 70 S.W.3d at 198, unless the plaintiff is entitled to a thirty-day grace period pursuant to section 13.01(g). See Walker, 111 S.W.3d at 61-62 (providing that a party who files a timely but inadequate expert report may seek relief under the grace period provisions of section 13.01(g)). Section 13.01(g) reads in pertinent part as follows:

Notwithstanding any other provision of this section, if . . . after hearing the court finds that the failure of the claimant or the claimant's attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply . . . .

See Act approved June 10, 2003, 73rd Leg., R.S., ch. 625, ' 3, sec. 13.01, 1993 Tex. Gen. Laws 2347, 2347-49 (repealed 2003). Therefore, if a trial court determines that a timely filed expert report is inadequate, it must grant a plaintiff thirty days to cure the defect if the plaintiff establishes that the failure to furnish an adequate report was the result of accident or mistake. See id.; Walker, 111 S.W.3d at 61-62.

In determining whether the failure to file an adequate report was due to accident or mistake rather than to intentional disregard or conscious indifference, we must look to the knowledge and acts of the claimant. Walker, 111 S.W.3d at 64 (citing Strackbein v. Prewitt, 671 S.W.2d 37, 39 (Tex. 1984)); Tesch, 28 S.W.3d at 787. "Some excuse, but not necessarily a good excuse, is enough to warrant an extension of time to file an expert report, as long as the act or omission causing the failure to file the report was in fact accidental." Tesch, 28 S.W.3d at 787 (citing Finley v. Steenkamp, 19 S.W.3d 533, 539 (Tex. App.BFort Worth 2000, no pet.); Horsley-Layman v. Angeles, 968 S.W.2d 533, 536 (Tex. App.BTexarkana 1998, no pet.)). The burden is on the plaintiff to show some evidence of accident or mistake to demonstrate he did not act intentionally or with conscious indifference. De Leon, 70 S.W.3d at 200; Tesch, 28 S.W.3d at 787. If the plaintiff establishes such evidence, the burden shifts to the defendant to controvert the plaintiff's evidence of accident or mistake; otherwise, an issue of mistake exists and an extension of time must be granted. Tesch, 28 S.W.3d at 787 (citing Finley, 19 S.W.3d at 539; Schorp v. Baptist Mem'l Health Sys., 5 S.W.3d 727, 732 (Tex. App.BSan Antonio 1999, no pet.)).

C. Analysis

By his first issue, appellant contends the trial court abused its discretion by denying his motion to extend time to file a supplemental expert report and granting appellees' motions to dismiss. More specifically, appellant asserts that he demonstrated that his failure to file an adequate expert report was due to accident or mistake rather than to intentional disregard or conscious indifference. We agree.

The expert report prepared by Dr. Bergman, a board certified internal medicine specialist and infectious disease subspecialist, included the following statements:

Whether Mr. Renaud should have underwent an extra-anatomic bypass procedure earlier in his course while at Spohn's Hospital or whether any additional Vascular/Surgical interventions including a follow-up angiogram should have been done while at Spohn's Hospital are questions better answered by a Vascular Surgeon. . . .

It is also my opinion that a Vascular Surgical expert should be obtained as I defer any comment relating to the technical, non-Infectious Disease aspects of this complex case to the appropriate specialist involved.[3]

The expert report was dated Friday, February 27, 2004, and the deadline for appellant to furnish a copy of the expert report to appellees was Monday, March 1, 2004.

Based in part on these statements, appellees challenged the adequacy of the expert report and filed motions to dismiss the suit. In response, appellant timely filed a motion for extension of time to file a supplemental expert report pursuant to section 13.01(g).[4] See Act approved June 10, 2003, 73rd Leg., R.S., ch. 625, ' 3, sec. 13.01, 1993 Tex. Gen. Laws 2347, 2347-49 (repealed 2003). Therefore, even assuming, without determining, that the trial court found the expert report to be inadequate, the Act mandated that the trial court grant appellant a thirty-day extension to file a supplemental expert report if appellant established that his failure to file an adequate report in the first instance was due to accident or mistake. See id.; Walker, 111 S.W.3d at 61-62. The burden was on appellant to show some evidence of accident or mistake to entitle him to a thirty-day extension to file a supplemental report. De Leon, 70 S.W.3d at 200; Tesch, 28 S.W.3d at 787. To establish such evidence, appellant filed the affidavit of Mendelsohn, his counsel. In his affidavit, Mendelsohn stated the following:

I had reviewed the medical records in the case . . . and had determined that a physician specializing in infectious disease and/or internal medicine would be the appropriate expert to review this file. With that in mind, I retained Michael M. Bergman, M.D. . . . to review the medical records in the case and to render an opinion as to the negligence, if any, committed by the named defendants herein. . . .

Based upon my review of the report . . . I also saw that Dr. Bergman recommended that a different specialist, a Vascular Surgeon, review the medical records to determine whether or not the care provided to Mr. Renaud fell below the applicable standard of care from the perspective of a vascular surgeon. Unfortunately, I was unable to provide the medical records to such a specialist, and receive a report from same, because the deadline for filing the expert report was imminent. Under the circumstances, I did not have any additional time to obtain this supplemental report.

My failure to file a report from a vascular surgeon was not intentional or the result of conscious indifference, but instead represented my mistaken belief that, based upon my review of the medical records, the appropriate specialist was an infectious disease and/or internal medicine specialist. If I had believed that a vascular surgeon was the appropriate specialist to review these records, I would have retained same prior to the running of the 180-day deadline and had a report [prepared] based upon that specialist's review of the records.

I want to reiterate that my failure to file the required documents was not intentional or the result of conscious indifference, since I had no knowledge until the eve of the deadline that I would require the services of a vascular surgeon.

Based on this evidence, we conclude that Mendelsohn's "mistaken belief that . . . the appropriate specialist was an infectious disease and/or internal medicine specialist" does not constitute intentional disregard or conscious indifference, but instead establishes evidence of a mistake that led to the filing of an inadequate expert report. See Act approved June 10, 2003, 73rd Leg., R.S., ch. 625, ' 3, sec. 13.01, 1993 Tex. Gen. Laws 2347, 2347-49 (repealed 2003); De Leon, 70 S.W.3d at 200; Tesch, 28 S.W.3d at 787. Mendelsohn's mistaken belief led him to seek an expert report from a physician specializing in internal medicine and infectious disease only, instead of also seeking an expert report from a physician qualified to opine on the "technical, non-infectious disease" aspects of the case. This mistake constitutes some excuse for appellant's failure to file an adequate expert report. See Tesch, 28 S.W.3d at 787 (citing Finley, 19 S.W.3d at 539; Horsley-Layman, 968 S.W.2d at 536).

Because appellant established that his failure to file an adequate expert report was due to a mistake, the burden shifted to appellees to controvert appellant's evidence of mistake. Tesch, 28 S.W.3d at 787 (citing Finley, 19 S.W.3d at 539; Schorp, 5 S.W.3d at 732). In an attempt to controvert appellant's evidence of mistake, Andrew Lehrman, counsel for Dr. Thomas, filed an affidavit, which stated the following:

Plaintiff apparently consulted an infectious disease/internal medicine specialist who, in the undersign's opinion, would have communicated prior to the preparation of the report that he is not qualified to render opinions on issues relating to a vascular surgeon and that such information would have been known prior to the preparation of this report and/or prior to the production of this report.

Therefore, it would appear that Plaintiff had adequate time to seek out the opinions of a vascular surgeon prior to the final report being reduced to writing and produced by Plaintiff's attorney.

Plaintiff fails to offer any evidence in its Response and Affidavit that there was insufficient time prior to learning from Dr. Bergman of the need to get a vascular surgeon to obtain the review of the medical records by a vascular surgeon prior to the deadline for production of expert reports.

We conclude that Lerhman's affidavit fails to controvert appellant's evidence of mistake. While Lerhman's affidavit sets out his general opinions (1) about what an expert "would have communicated" to Mendelsohn prior to the preparation of the report and (2) that it "would appear that Plaintiff had adequate time to seek out the opinions of a vascular surgeon prior to the final report being reduced to writing," it does not controvert the specific evidence of mistake established by Mendelsohn's affidavit in this case.

Because appellees failed to controvert appellant's evidence of mistake, an issue of mistake existed, Tesch, 28 S.W.3d at 787 (citing Finley, 19 S.W.3d at 539; Schorp, 5 S.W.3d at 732), and the trial court was required to grant appellant a thirty-day extension to file a supplemental expert report. See Act approved June 10, 2003, 73rd Leg., R.S., ch. 625, ' 3, sec. 13.01, 1993 Tex. Gen. Laws 2347, 2347-49 (repealed 2003); Walker, 111 S.W.3d at 61-62. Therefore, we conclude that the trial court abused its discretion in dismissing the underlying suit and in denying appellant's motion for extension of time. We sustain appellant's first issue.

III. Denial of Motion to Strike

Through his second issue, appellant contends the trial court erred by denying his motion to strike portions of the affidavit of Andrew Lehrman. We, however, decline to address appellant's second issue as it is not dispositive of this appeal in light of our disposition of appellant's first issue. See Tex. R. App. P. 47.1.

IV. Conclusion

Accordingly, we reverse the judgment of the trial court and remand the cause for further proceedings consistent with this opinion.

NELDA V. RODRIGUEZ

Justice

Memorandum Opinion delivered and

filed this 20th day of April, 2006.

[1]All issues of law presented by this case are well-settled, and the parties are familiar with the facts. Therefore, we will not recite the law or the facts except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

[2]Article 4590i of the Texas Revised Civil Statutes, which contained section 13.01 of the Medical Liability and Insurance Improvement Act, was repealed in 2003. See Act approved June 11, 2003, 78th Leg., R.S., ch. 204, ' 10.09, 2003 Tex. Gen. Laws 847, 884. Because the underlying suit was filed prior to September 1, 2003, the effective date of the repeal, we apply the version of former section 13.01 that went into effect on September 1, 1995. See id.

[3]Although Dr. Bergman states that certain questions are better answered by a vascular surgeon, we do not determine on appeal whether a vascular surgeon is in fact required to opine on the "technical, non-infectious disease" aspects of this case.

[4]Appellees suggest that appellant's motion to extend time to file a supplemental expert report was not timely filed. However, section 13.01(g) states the following: "a motion by a claimant for relief under this subsection shall be considered timely if it is filed before any hearing on a motion by defendant" to dismiss the suit based on the inadequacy or non-compliance of an expert report. See Act approved June 10, 2003, 73rd Leg., R.S., ch. 625, ' 3, sec. 13.01, 1993 Tex. Gen. Laws 2347, 2347-49, amended by Act approved May 18, 1995, 74th Leg., R.S., ch. 140, ' 1, sec. 13.01, 1995 Tex. Gen. Laws 985, 985-87, repealed by Act approved June 11, 2003, 78th Leg., R.S., ch. 204, ' 10.09, 2003 Tex. Gen. Laws 847, 884. Because appellant filed his motion for extension of time prior to the hearing on appellees' motions to dismiss, appellant's motion was timely filed. See id.