Sylvia Valdez, Individually and as Representative of the Estate of Josephine Rodriguez, Deceased v. Lopez Health Systems, Inc.--Appeal from 218th Judicial District Court of Frio County

MEMORANDUM OPINION

No. 04-04-00023-CV

Sylvia VALDEZ, Individually and as Representative

of the Estate of Josephine Rodriguez, Deceased,

Appellant

v.

LOPEZ HEALTH SYSTEMS, INC.,

Appellee

From the 218th Judicial District Court, Frio County, Texas

Trial Court No. 99-10-00292-CVF

Honorable Stella Saxon, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: July 13, 2005

AFFIRMED

Sylvia Valdez, individually and as the representative of the Estate of Josephine Rodriguez, appeals the trial court s judgment dismissing her claims against Lopez Health Systems, Inc. for failing to file a sufficient expert report and awarding attorney s fees to Lopez. We affirm.

Health Care Liability Claim

In her first issue Valdez argues that the trial court erred in dismissing the suit because her claims are not health care liability claims governed by the former Medical Liability Insurance Improvement Act // (MLIIA) and thus no expert report is required.

Valdez did not raise this issue in response to Lopez s motion to dismiss or in any other pleading in the trial court and did not present the issue in her argument at the hearing on the motion to dismiss or at the hearing on her motion for an extension of time to file her expert report. By failing to present the issue to the trial court, Valdez failed to preserve it for appellate review. See Tex. R. App. P. 33.1; In re L.M.I., 119 S.W.3d 707, 710-11 (Tex. 2003) (holding that contention that affidavit was obtained in violation of due process was not preserved for appellate review when legal argument was not presented to trial court), cert. denied, 541 U.S. 1043, 124 S. Ct. 2175 (2004).

Assuming the issue is properly before us, we examine the underlying nature of Valdez s claims to determine whether they are health care liability claims. // MacGregor Med. Ass n v. Campbell, 985 S.W.2d 38, 40 (Tex. 1998). Valdez s claims are health care liability claims subject to the MLIIA if she must prove a breach of a standard of care applicable to health care providers, see id. at 41, or if the act or omission she complains of is an inseparable part of the rendition of medical services. See Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex.1995).

In her live petition, Valdez alleges that Lopez is in the business of providing home health care services ; Lopez agreed to provide home health care to Valdez s daughter Josephine Rodriguez; [t]his care included providing ... necessary medical equipment such as [a] portable standard suction machine ; the portable suction machine was in all respects a life saving medical device ; Lopez failed to continue providing medical equipment to ... Rodriguez ; and [t]he removal of the standard portable suction machine caused ... Rodriguez to expire. Valdez pleaded the following three causes of action against Lopez:

(1)Lopez was negligent . . . [i]n failing to provide necessary medical equipment for the survival of ... Rodriguez ;

(2) When Lopez ... began to provide medical services to ... Rodriguez it warranted that it would do so in a professional and workmanlike manner such that its actions would not cause harm to ... Rodriguez; [and the failure to provide a suction machine] is a breach of that warranty ; and

(3) When Lopez ... began to provide medical services to ... Rodriguez it represented to her that it would do so in a professional and workmanlike manner, such that its actions would not cause harm to ... Rodriguez; [and] [t]he negligent [failure to provide a suction machine] constitutes misrepresentations to ... Rodriguez.

To establish liability under any of these theories, Valdez would have to prove that the standard of care applicable to home health care providers required Lopez to provide a portable suction machine and that Lopez breached that standard. Her claims are therefore health care liability claims that are governed by the former MLIIA.

Adequacy of Reports

Valdez next argues the trial court abused its discretion in dismissing her claims because the two expert reports she filed represent a good faith effort to comply with the requirements of the MLIIA. We disagree.

The MLIIA requires claimants to make a good faith effort to file a written report by an expert that provides a fair summary of the expert s opinions ... regarding applicable standards of care, the manner in which the care rendered by the ... healthcare provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed. Tex. Rev. Civ. Stat. Ann. art. 4590i, 13.01(d)(1), (l), (r)(6). To constitute a good faith effort, the report must include the expert s opinion on each of the three elements and must explain the basis of his statements to link his conclusions to the facts. Bowie Mem l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002) (quoting Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999)). If the trial court determines the report does not represent a good faith effort to comply with the expert report requirement, the suit may be dismissed with prejudice. Bowie Mem l Hosp., 79 S.W.3d at 51-52; Tex. Rev. Civ. Stat. Ann. art. 13.01(e)(3), (l). We review the trial court s dismissal order under an abuse of discretion standard. Id. at 52.

Valdez filed two expert reports prepared by N. Lois Adams. // The only statement in either report regarding the standard of care applicable to Lopez is that [t]he testimony seems to indicate that the responsibility to assure that the suction unit was in place rested with Lopez Home Health. On the issue of whether Lopez breached the standard of care, Adams s report presents only questions:

Do you have any indication that Lopez actually ordered a unit for the patient? Did they drop the ball here[? ] .... Did you take the deposition of ... Lopez Home Health Care? What was their understanding of the ownership of the suction unit which remained in the patient s home months after the patient had been discharged [from hospice care]? Who did they call to provide a unit for the patient?

The reports thus wholly fail to set forth either the applicable standard of care or facts showing the standard was breached by Lopez.

On causation Adams surmises that the pick up of the suction machine ... may be ultimately responsible for the death of Ms. Rodriguez and states her opinion that a good case can be made that the lack of the suction machine contributed to the patient s death. However, neither of Adams s reports states facts that would link the absence of a suction machine to Rodriguez s death. She does state that records she examined indicated that Rodriguez had large quantities of mucus which required suctioning and that [r]ecords of Hood Medical Clinic refer to the necessity for the suction unit. // However, Adams also reports that Rodriguez, who was born with cerebral palsy, had increasing acute and severe problems including chronic obstructive pulmonary disease, progressing heart disease, and severe and often uncontrolled seizures. Nowhere does Adams state what the physical cause of Rodriguez s death was or describe a causal link between the death and the lack of the suction unit. Indeed, the only statement in Adams s reports that purports to support her conclusion that the absence of a suction unit contributed to Rodriguez s death is this question: Would the availability of the suction machine have made a difference? HOOD MEDICAL CLINIC believed so when they said that she needed to be suctioned.

We conclude that the trial court could have reasonably determined that Adams s reports do not represent a good faith effort to summarize the applicable standard of care, how Lopez breached the applicable standard, and the causal relationship between that failure and Rodriguez s death. See Bowie Mem l Hosp., 79 S.W.3d at 53; American Transitional Care Ctrs of Texas, Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). Accordingly, the trial court did not abuse its discretion in dismissing the case.

Denial of the Motion for Extension of Time

Valdez next argues the trial court abused its discretion in denying her motion for an extension of time to file additional reports to clarify that the duty to furnish the portable suction machine was transferred to Lopez. Section 13.01(g) requires the trial court to grant a claimant a thirty-day grace period if, after hearing the court finds that the failure of the claimant or the claimant s attorney [to file an adequate report] was not intentional or the result of conscious indifference but was the result of an accident or mistake. Tex. Rev. Civ. Stat. Ann. art. 4590i, 13.01(g). We review the trial court s denial of the motion for an abuse of discretion. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).

At the hearing on the motion, one of Valdez s attorneys testified that two of the depositions Adams reviewed and referred to in her second report establish the applicable standard of care. He testified that [c]ounsel . . . mistakenly assumed that the deposition[s] . . . would either be filed by the third-party plaintiff, Nurses in Touch, or would be considered in connection with [Adams s] report. Counsel believed Adams s reports otherwise complied with the statutory requirements. However, even if counsel s assumption about the depositions were correct, // Adams s reports contain no facts purporting to show how Lopez breached the standard of care or how that breach caused Rodriguez s death. When a claimant files a report that omits one or more of section 13.01(r)(6) s required elements, a purportedly mistaken belief that the report complied with the statute does not negate a finding of intentional or conscious indifference. .... Accordingly, such a mistake is not a mistake of law that entitles a claimant to a section 13.01(g) grace period. Walker, 111 S.W.3d at 65. We therefore hold the trial court did not abuse its discretion in denying the motion to dismiss.

Attorney s Fees

Finally, Valdez contends the evidence is insufficient to support the award of $25,000 in attorney s fees to Lopez because it include[s] charges for services provided to the client prior to the plaintiff ever filing suit against Lopez and because counsel s invoice fails to properly disguish [sic] between services provided in defending the third party claim and services provided in defense of Plaintiff s claim. We disagree. Lopez s attorney testified that Lopez had incurred fees through October 2003 (prior to the hearing on the motion to dismiss) in the amount of $34,780. Counsel testified that she reviewed each item of time to determine whether it pertained to Valdez s claims against Lopez. She testified that, after deducting fees incurred solely in connection with the third-party-petition of Nurses in Touch and several parties bankruptcies, the amount of fees attributable to Valdez s claims was $25,000. Counsel acknowledged that this amount includes fees incurred before Valdez filed suit against Lopez, because Valdez s attorney sent a presuit 4590i notice letter and a settlement demand and made several communications with [Lopez] requesting documents, requesting information and [Lopez] had to incur attorney s fees to respond to [Valdez s attorney s] demands. The evidence supporting the fee award is more than a mere scintilla and is therefore sufficient. See Marathon Corp. v. Pizner, 106 S.W.3d 724, 727-28 (Tex. 2003).

We affirm the trial court s judgment.

Sarah B. Duncan, Justice