Lira, Estella, Individually and as Next Friend of Hipolito Lira, Jr. and Daniel Lira/Orville Diaz Cerna, M.D. v. Cerna, M.D., Orville Diaz/Estella Lira, Individually and as Next Friend of Hipolito Lira, Jr. and Daniel Lira--Appeal from 143rd District Court of Reeves County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

)

ESTELLA LIRA, INDIVIDUALLY AND AS )

NEXT FRIEND OF HOPOLITO LIRA, JR., )

and DANIEL LIRA, ) No. 08-01-00250-CV

)

Appellant, ) Appeal from

)

v. ) 143rd District Court

)

ORVILLE DIAZ CERNA, M.D., ) of Reeves County, Texas

)

Appellee. ) (TC# 00-08-16786-CVR)

O P I N I O N

Estella Lira, individually and as next friend of Hipolito Lira, Jr. and Daniel Lira,[1] filed a medical malpractice suit against Dr. Orville Diaz Cerna. The Liras have appealed an order of dismissal pursuant to Article 4590i, section 13.01(e) of the Medical Liability and Insurance Improvement Act. Tex.Rev.Civ.Stat.Ann. art. 4590i, ' 13.01(e)(Vernon Supp. 2002).[2] Dr. Cerna appeals the trial court=s denial of his motion for sanctions. Finding no error, we affirm.

FACTUAL AND PROCEDURAL SUMMARY

 

Hipolito Lira initially sought treatment on September 27, 1999 from Dr. Cerna and a physician assistant, Michelle Cser, at Pecos Valley Rural Health Clinic for fatigue and swelling of the hands, feet, eye, and facial area. Despite continued treatment, his health deteriorated rapidly and he died on October 23, 1999. On August 18, 2000, the Liras filed suit, alleging Dr. Cerna and Cser were negligent in their diagnosis and treatment. In their first amended original petition, the Liras added the City of Pecos as a defendant.[3] The Clinic and Reeves County Hospital were added as defendants in the second amended petition. In their third amended petition, the Liras alleged vicarious liability of Dr. Cerna based on Cser=s negligence. Within 180 days of filing suit, the Liras served Dr. Cerna with the reports of two medical experts. From this point forward, a time line will more effectively detail the procedural history. The following events occurred between April and June 2001:

$ April 16 -- Dr. Cerna filed a motion to dismiss pursuant to Section 13.01(e) and a motion for summary judgment contending that he had no physician-patient relationship with Mr. Lira and was not liable on any grounds alleged in the Liras= second amended petition. At approximately the same time, all four defendants--Dr. Cerna, Cser, the Clinic, and the Hospital--filed a joint motion to dismiss the entire lawsuit because the plaintiffs had not properly joined the three adult children of Mr. Lira who were additional wrongful death beneficiaries.

$ May 17 -- The Liras reached a settlement with Cser, the Clinic, and the Hospital whereby the defendants would pay $75,000 in exchange for final releases. Purportedly, the adult children were also to release their claims against all four defendants--including Dr. Cerna--for $5,000 each.

$ May 18 -- Dr. Cerna learned of the settlement with the other defendants. The Liras= attorney suggested that based on the settlement, the defendants would not need to pursue the joint motion to dismiss which alleged a defect in parties. Based open this representation, Dr. Cerna did not move forward with that motion. Consequently, the hearing proceeded only on Dr. Cerna=s Section 13.01 motion to dismiss and motion for summary judgment. The trial court heard the arguments of counsel but did not rule from the bench. After the hearing, the court--through its court coordinator--asked counsel for Dr. Cerna to prepare an order granting the motion to dismiss. Counsel did so, forwarding a copy to the Liras= attorney.

 

$ May 21 -- The Liras filed a notice of nonsuit. The trial court signed an order the same day, dismissing the claims against Dr. Cerna without prejudice.

$ May 30 -- Dr. Cerna filed an objection to the nonsuit, asking that the order granting it be vacated and the case dismissed, with prejudice, pursuant to his Section 13.01 request.

$ June 1 -- A scheduled hearing on the prove-up of the settlement was postponed until the court decided whether to vacate the nonsuit and dismiss the Liras= claims with prejudice. The Liras= attorney advised the court that the settlement was still in place. The court vacated the nonsuit and dismissed the claims against Dr. Cerna with prejudice. The doctor=s request for attorneys= fees and costs, mandated by Section 13.01(e), was withdrawn in exchange for the dismissal with prejudice.

$ June 4 -- Dr. Cerna filed his first motion for sanctions, complaining of the Liras= conduct in filing the notice of nonsuit in an effort to circumvent the trial court=s dismissal with prejudice. The record does not reveal what transpired between June 1 and June 4 to prompt this motion. All of the actions alleged in the motion as a basis for sanctions had transpired by the June 1 hearing during which counsel withdrew the request for fees and costs.

$ June 7 -- Dr. Cerna=s counsel learned that the adult children had rescinded their releases.

$ June 8 -- The trial court conducted the prove-up of the settlement with Cser, the Clinic, and the Hospital and rendered judgment in accordance with the parties= agreement. The written judgment expressly excluded any claims by the Liras against Dr. Cerna based upon his actions as Cser=s supervising physician. Dr. Cerna asked for clarification as to whether the settlement included the adult children since the releases they had signed were rescinded. His counsel objected to the rescissions, advising the court that Dr. Cerna had relied on these releases in agreeing not to pursue dismissal based upon the defect in parties and in agreeing to withdraw that part of the Section 13.01 dismissal motion seeking recovery of attorneys= fees as additional sanctions. Dr. Cerna asked the court to disregard the rescissions and urged his motion for sanctions, seeking fees and costs. The court did not rule from the bench.

$ June 18 -- Dr. Cerna filed a second motion for sanctions, alleging improper conduct with regard to filing the notice of nonsuit and with regard to unethical conduct in misrepresenting facts to the doctor=s attorney concerning the releases and rescissions executed by the older children.

$ June 28 -- The Liras responded to the second motion for sanctions, alleging that the inclusion of Dr. Cerna in the releases was a mistake, that the older children had not received payment of any consideration from Dr. Cerna and, in effect, that Dr. Cerna=s belief that the $5,000 each of the adult children was to receive would be paid from the $75,000 tendered by the other three defendants was Aa fantasy.@

 

$ June 29 -- The trial court denied Dr. Cerna=s request for sanctions.

ADEQUACY OF THE EXPERT REPORTS

In Point of Error No. One, the Liras claim the trial court erred in granting Dr. Cerna=s motion to dismiss on the grounds that the expert reports were inadequate. We begin with the standard of review.

Standard of Review

In reviewing a trial court=s dismissal for failure to provide an adequate expert report, we apply an abuse of discretion standard. American Transitional Care Ctrs. of Texas, Inc. v. Palacios, 46 S.W.3d 873, 877-78 (Tex. 2001). An abuse of discretion occurs when the trial court=s judgment is made without reference to guiding rules or principles, or is arbitrary or unreasonable. See Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986).

The Act

Medical malpractice claims are governed by the Texas Medical Liability and Insurance Improvement Act. See Tex.Rev.Civ.Stat.Ann. art. 4590i, ' 1.01, et seq. (Vernon Supp. 2002). Section 13.01 of the Act requires a claimant to file an expert report:

(d) Not later than the later of the 180th day after the date on which a health care liability claim is filed or the last day of any extended period established under Subsection (f) or (h) of this section, the claimant shall, for each physician or health care provider against whom a claim is asserted:

(1) furnish to counsel for each physician or health care provider one or more expert reports, with a curriculum vitae of each expert listed in the report; or

(2) voluntarily nonsuit the action against the physician or health care provider.

 

Tex.Rev.Civ.Stat.Ann. art. 4590i, ' 13.01(d). If the claimant fails to comply with these requirements, the physician or health care provider may file a motion seeking as sanctions attorney=s fees and costs, forfeiture of any bond, and dismissal with prejudice. See id. Section 13.01(e). AA court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the definition of an expert report in Subsection (r)(6) of this section. Id. Section 13.01(l). The statute defines Aexpert report@ 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.

Id. Section 13.01(r)(6).

 

In determining whether an expert report represents a good-faith effort to provide a fair summary of the expert=s opinions, the trial court should look no further than the four corners of the report. Palacios, 46 S.W.3d at 878. The expert report must contain the expert=s opinions on three areas: (1) the applicable standard of care; (2) the manner in which the physician or health care provider failed to meet the standard of care; and (3) the causal relationship between the alleged failure and the harm claimed by the plaintiff. While the report need not marshal all of a claimant=s proof, it must include the expert=s opinion on each of these elements. Id., citing Hart v. Wright, 16 S.W.3d 872, 877 (Tex.App.--Fort Worth 2000, pet. denied). In setting out the expert=s opinions on each element, the report must provide sufficient information to fulfill two purposes it if is to constitute a good faith effort: (1) the report must inform the defendant of the specific conduct the claimant has called into question; and (2) the report must provide a basis for the trial court to conclude the claims have merit. Id. at 879. A report does not fulfill these purposes if it only states the expert=s conclusions about the standard of care, breach, and causation, or if it omits any of the statutory requirements. Id.

Stipulation of the Parties

At the hearing on May 18, the trial court requested that the parties stipulate to several factual issues relevant to the standard of care. The parties agreed that:

$ this is a medical malpractice case governed by Article 4590i;

$ the applicable rules of the Texas State Board of Medical Examiners are those that deal with a medically under-served community and a rural health setting, which is independent from a physician assistant practice on-site;

$ the events at issue did not occur while Cser was working at Dr. Cerna=s office;

$ Dr. Cerna was an independent contractor with Reeves County Hospital;

$ Cser was an employee of the Hospital;

$ Cser saw patients at the Clinic; and

$ Dr. Cerna was Cser=s principal supervising doctor, but there were two other doctors who could supervise if Dr. Cerna were not available.

We turn now to the contents of the reports tendered by the Liras= experts. The reports are comprised of two letters and an affidavit from Dr. Howard A. Parness and a letter from Dr. Lige B. Rushing. Because this case ultimately turns on the adequacy of the reports concerning the applicable standard of care, we will highlight references thereto.

The Parness Reports

Dr. Parness=s letter dated May 10, 2000 states in pertinent part:

 

Mr. Lira is a 53-year-old married male who seems to have been suffering from longstanding cardiomegaly and hypertension and probably renal insufficiency. Review of his records seem to indicate that the patient was in congestive heart failure and subsequently went downhill and died from complications of the congestive heart failure.

. . .

According to his wife=s testimony, both the patient and his wife went to the office a number of times, but it seems like he was not examined during these occasions, and the tests that were run just prior to his death were not transmitted to the patient nor his wife. It does appear that this gentleman was quite ill during that time and should have either been seen or worked up further. It also appears that had this happened, the outcome might have been different.

A follow-up letter dated June 17, 2000 added the following:

In further analysis of the additional records sent to me, it appears that this patient was profoundly hypothyroid, and died of complications of myxedema. It appears that this was not recognized when he was seen a month prior to his death, and when it was recognized the few days before his death, it does not appear that the physician appreciated the extent of Mr. Lira=s illness. The fact that the diagnosis was made rather late was definitely contributory to this patient=s death. I don=t believe that treating him a day or two earlier would have made a difference in his survival, but certainly recognizing the extent of the problem and possibly treating him symptomatically might have kept him alive long enough for the thyroid disease to be reversed with treatment.

We quote next from the affidavit of Dr. Parness:

I am a practicing licensed physician in the State of Texas. . . . I have reviewed the medical records and reports from Pecos Valley Rural Health Clinic and Reeves County Hospital concerning the decedent, Hipolito Lira. It is my professional medical opinion that the medical care and treatment afforded to Hipolito Lira, deceased, fell below the reasonable standard of care within Reeves County, Texas, and/or a Texas county of similar size and resources. It is further my professional medical opinion that the lack of proper, appropriate and timely medical care and treatment to the decedent, Hipolita [sic] Lira, was the proximate cause of death. [Emphasis added].

 

In his motion to dismiss, Dr. Cerna argued that Dr. Parness=s report failed to meet any of the statutory requirements. The Liras contend that the statement in the May 10 letter that Mr. Lira Ashould have either been seen or worked up further@ and the statements in the June 17 letter that Ait does not appear that the physician appreciated the extent of Mr. Lira=s illness@ and A[t]he fact that the diagnosis was made rather late was definitely contributory to this patient=s death@ satisfied the first requirement of Section 13.01(r)(6). We disagree. First, neither the letters nor the affidavit mentioned Dr. Cerna by name. Two pre-Palacios decisions concluded that because the expert reports never specifically referred to the defendant nor stated how he may have breached the standard of care, the plaintiffs had failed to comply with the statute. See Wood v. Tice, 988 S.W.2d 829, 830 (Tex.App.--San Antonio 1999, pet. denied); Horsley-Layman v. Angeles, 968 S.W.2d 533, 535 (Tex.App.--Texarkana 1998, no pet.). Second, while Dr. Parness opined that the lack of proper medical care was the proximate cause of death, he did not discuss the applicable standard of care. At most, the Parness affidavit states that the medical care given to Mr. Lira Afell below the reasonable standard of care within Reeves County, Texas, and/or a Texas county of similar size and resources.@ It does not articulate what this Areasonable standard of care@ might be. Such a conclusory statement is insufficient to satisfy the requirement that the expert report contain a discussion of the applicable standard of care. As the Texas Supreme Court has noted, the standard of care must be discussed with Asufficient specificity to inform the defendant of the conduct the plaintiff has called into question and to provide a basis for the trial court to conclude that the claims have merit.@ [Emphasis added]. Palacios, 46 S.W.3d at 875. Because the Parness reports collectively fail to identify the reasonable standard of care which Dr. Cerna=s conduct breached, they are inadequate.

The Rushing Report

Dr. Rushing=s report contains the following observations:

In the course of my regular practice, I treat patients with diseases similar to or identical with Mr. Lira=s. I am familiar with the standards of care in cases like this.

 

. . .

The standard of care requires that a physician provide that level of care which a reasonable prudent physician would provide in the same or similar circumstances. The care rendered by Michele Cser, PA-C failed to meet the accepted standards in the following ways:

1. Michele Cser simply failed to comprehend the seriousness of Mr. Lira=s illness,

2. failed to diagnose Mr. Lira=s myxedema in a timely fashion,

3. failed to treat Mr. Lira=s myxedema in a timely fashion,

4. failed to seek cardiology consultation, and

5. failed to consult her supervising physician in a timely and appropriate manner.

As a result of the failures outlined above, there was a substantial delay in the diagnosis of Mr. Lira=s myxedema and heart disease, as well as a delay in treatment. If Mr. Lira had been carefully examined, diagnosed, followed up, and treated in a timely manner, he would not have died when he did. It is my opinion that the delay in diagnosis and treatment was a proximate cause of Mr. Lira=s death.

The care provided by Dr. Orville D. Cerna fell below the accepted standards in the following ways:

1. failed to appropriately supervise Michele Cser, and

2. failed to examine or evaluate Mr. Lira.

It is my opinion that the failures listed above were proximate causes of Mr. Lira=s death. Dr. Cerna, as the supervising physician for Michele Cser, bears the ultimately [sic] responsibility for the quality of care delivered by her. The opinions expressed here are based on reasonable medical probability. [Emphasis added].

 

Dr. Cerna challenged the Rushing report because it failed to discuss the applicable standard of care. While Dr. Rushing named Dr. Cerna as Cser=s supervising physician and faulted the doctor for his failure to supervise and evaluate Cser, he did not articulate the applicable standard of care. Instead, his report summarily concluded that A[t]he standard of care requires that a physician provide that level of care which a reasonable prudent physician would provide in the same or similar circumstances.@ Simply stated, the report does not demonstrate a good faith effort to provide a fair summary of the expert=s opinions: It does not identify the standard of care for a physician who is supervising a physician assistant at an off-site location in a rural, medically under-served community, nor does it articulate what specific steps Dr. Cerna was expected to take as a supervisor. Because it does not provide such specificity, it fails to provide a basis for the trial court to conclude that the claims against Dr. Cerna have merit.

Because the expert reports failed to meet the statutory requirements, the trial court had no discretion but to find that they did not constitute a good faith effort to provide a fair summary of the standard of care and how it was breached.[4] Moreover, because the statutory 180 days had passed when the trial court made this determination, it was required to dismiss the Liras= claims against Dr. Cerna with prejudice. We find no abuse of discretion in the dismissal of the Liras= medical malpractice claim. Point of Error No. One is overruled.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In Point of Error No. Two, the Liras complain of the trial court=s refusal to file findings of fact and conclusions of law. They argue that without the findings, it is impossible for them to determine the court=s rationale for granting the motion to dismiss such that they are disadvantaged with regard to presentation of this appeal. We disagree.

 

The trial court refused to file findings of fact because there was no trial upon which findings could be predicated. Findings are required in any case tried in the district or county court without a jury upon timely request. Tex.R.Civ.P. 296. The Supreme Court has determined that formal findings are unnecessary with regard to sanctions, although the trial court may issue them if it so chooses. IKB Industries (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440 (Tex. 1997). There, the issue was a Rule 215 sanction for discovery abuse and the trial court=s order recited that the court had considered the court=s file, including pleadings, affidavits, and deposition excerpts as well as testimony and argument of counsel. The order included seven pages of findings which the trial court reached Afrom the evidence before it.@ Id. at 441. IKB filed a request for findings of fact to which the trial court did not respond. The direct issue for resolution was whether the request for findings extended the appellate timetable; if not, then IKB=s appeal was untimely. After a detailed recitation of the purpose of findings of fact and the appropriate circumstances for their issuance, the court summarized:

A request for findings of fact and conclusions of law does not extend the time for perfecting appeal of a judgment rendered as a matter of law, where findings and conclusions can have no purpose and should not be requested, made, or considered on appeal. Examples are summary judgment, judgment after directed verdict, judgment non obstante veredicto, default judgment awarding liquidated damages, dismissal for want of prosecution without an evidentiary hearing, dismissal for want of jurisdiction without an evidentiary hearing, dismissal based on the pleadings or special exceptions, and any judgment rendered without an evidentiary hearing. A timely filed request for findings . . . extends the time for perfecting appeal when findings and conclusions are required by Rule 296, or when they are not required by Rule 296 but are not without purpose--that is, they could properly be considered by the appellate court. Examples are judgment after a conventional trial before the court, default judgment on a claim for unliquidated damages, judgment rendered as sanctions, and any judgment based in any part on an evidentiary hearing. [Emphasis added].

 

Id. at 443. We hasten to add that whether a request for findings extends the appellate timetable is not the same thing as whether a party is entitled to the findings requested. As the italicized language reveals, while findings may be helpful, they are not required. Moreover, we are not convinced that findings would even be helpful here. Because the trial court may review only the four corners of the expert reports when determining whether to grant a Section 13.01 dismissal, we are restricted to the same in our review of the trial court=s determination for abuse of discretion. Point of Error No. Two is overruled.

MOTION FOR SANCTIONS

In his sole point of error, Dr. Cerna complains that the trial court abused its discretion in denying sanctions. He claims that the conduct of the Liras= attorney amounted to a bad faith abuse of the judicial process and significant interference with the trial court=s core functions. Once again, we employ the abuse of discretion standard or review. Palacios, 46 S.W.3d at 877, citing Koslow=s v. Mackie, 796 S.W.2d 700, 704 (Tex. 1990).

Mandatory Sanctions Pursuant to Section 13.01(e)

During oral argument, Dr. Cerna=s attorneys candidly conceded that, not wanting Ato add insult to injury,@ they agreed at the June 1 hearing to withdraw Dr. Cerna=s request for attorneys= fees in exchange for the Section 13.01 dismissal. However, an initial motion for sanctions was filed after that hearing which urged their complaint concerning the nonsuit; a second motion reurged the complaint surrounding the nonsuit and added allegations of misrepresentation by the Liras= attorney concerning the joinder of the adult children, the settlement of the adult children=s claims, and the recission of their releases. In his brief, Dr. Cerna suggests that A[i]n the absence of the courtesy offer[ed] by Dr. Cerna=s counsel, the trial court would have been compelled to award attorneys= fees as a mandatory sanction under section 13.01(e).@ While we agree, we believe the mandatory statutory sanctions were waived. The trial court evidently thought so as well since the June 1 dismissal order provided that ADefendant Cerna abandoned his requests for other affirmative relief or further sanctions.@ Consequently, the doctor is left with his claims that sanctions were proper under the trial court=s inherent power and under Rule 13 of the Texas Rules of Civil Procedure.

 

Notice of Nonsuit

As we have already noted, Dr. Cerna abandoned his request for monetary sanctions at the June 1 hearing. The purpose of that hearing from the doctor=s perspective was to vacate the nonsuit and obtain a dismissal with prejudice pursuant to Section 13.01(e). All of the information concerning the Liras= conduct in filing the notice of nonsuit was already known to Dr. Cerna at that hearing. Nevertheless, despite the Liras= allegedly unethical conduct in trying to avoid a dismissal with prejudice by obtaining a nonsuit without prejudice, Dr. Cerna abandoned his claims for monetary damages. We find no abuse of discretion in the trial court=s refusal, under either its inherent power or Rule 13, to enter sanctions on this basis.

Recissionof the Releases

 

On April 18, 2001, Dr. Cerna, Cser, the Clinic, and the Hospital filed a joint motion to dismiss the Liras= entire malpractice action, arguing that they had failed to join all of the wrongful death beneficiaries. On May 17, the Liras reached a settlement in which Cser, the Clinic, and the Hospital agreed to pay $75,000 to the Liras in exchange for full and final release of any and all claims the Liras may have arising out of Mr. Lira=s death. According to Dr. Cerna, the settlement required the adult children to sign releases of claims against all of the defendants, including Dr. Cerna, for $5,000 each. The Liras= have offered two conflicting explanations for the releases and subsequent rescissions: (1) that Dr. Cerna was included in the releases by mistake; and (2) that Dr. Cerna was to pay each of the adult children $5,000 but the consideration was never paid. Dr. Cerna counters that he understood that the $5,000 for each of the adult children would be paid from the $75,000 tendered by the other three defendants. The Liras respond that it is pure fantasy to believe that Mrs. Lira and the minor children would have agreed to pay the adult children $15,000 from their settlement proceeds or that the adult children would release all claims against a doctor who had tendered nothing. Dr. Cerna now argues that the withdrawal of his request for attorneys= fees and costs was conditioned on the representation made by the Liras= attorney that the adult children had released all claims against him.

While the trial court certainly had the authority to grant sanctions on these facts, we cannot conclude that its refusal to do so constitutes an abuse of discretion. We overrule Dr. Cerna=s sole point. Having overruled all points of error in both appeals, we affirm the judgment of the court below.

August 1, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

 

[1] Hipolito Lira, Jr. and Daniel Lira are the biological minor children of Hipolito Lira and Estella Lira. Mr. Lira was also the father of three adult children who were not named in the original suit: Alfredo Lira, Sandra Lira, and Rosella Bullis.

[2] All further references to the Act relate to this section unless otherwise noted.

[3] The Liras ultimately nonsuited the City.

[4] We pause to note that the Liras have suggested Wright v. Bowie Memorial Hospital, 48 S.W.3d 443 (Tex.App.--Fort Worth 2001, no pet.) is analogous because it involved negligence claims against a physician assistant. First, the decision was reversed by the Supreme Court the day after oral argument in this court. See Bowie Memorial Hospital v. Wright, No. 01-0814, slip op. at 3, 2002 WL 1290405, at *3 (Tex. June 13, 2002). Second, the Supreme Court=s opinion clearly reveals that the Aparties [did] not dispute that the expert report fairly summarize[d] the alleged standard of care . . . .@ Id. at *3.