Marie Langley, Individually and as Representative of the Estate of John Langley and Mariah Langley, a Minor v. Floyd E. Jernigan, M.D.--Appeal from 19th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-00-00373-CV

Marie Langley, Individually

and as Representative

of the Estate of John Langley

and Mariah Langley, a Minor,

Appellant

v.

Floyd E. Jernigan, M.D.,

Appellee

From the 19th District Court

McLennan County, Texas

Trial Court # 2000-2532-1

MEMORANDUM Opinion AFTER REMAND

This medical malpractice case is on remand from the Texas Supreme Court. Appellant, Marie Langley[1] sued Providence Health Center and a group of doctors, including Appellee Floyd E. Jernigan, after the death of her husband, John Langley. The trial court dismissed her claims against Dr. Jernigan under former article 4590i and severed the claims from those against all other defendants.

Langley brought this appeal, asserting in four issues why her claims should not have been dismissed: (1) Dr. Jernigan waited too long to file his motion to dismiss; (2) the expert report she filed was a fair summary of the expert's opinions; (3) the burden of showing a lack of good faith rested with Dr. Jernigan and he did not meet that burden; and (4) the court erroneously refused to allow her time to supplement the reports. We held that by waiting for over 600 days Dr. Jernigan waived his right to object to the report. Langley v. Jernigan, 76 S.W.3d 752, 758 (Tex. App. Waco 2002), rev'd, 111 S.W.3d 153 (Tex. 2003). Thus, we reversed the judgment and remanded the cause for trial. Id. The Supreme Court disagreed with our decision about waiver,[2] reversed our judgment, and remanded the case to us for further proceedings. Jernigan v. Langley, 111 S.W.3d 153, 158 (Tex. 2003). We now consider Langley's issues two, three, and four.

We will sustain Langley s issues two and three, reverse the dismissal, and remand for further proceedings. Alternatively, we will also sustain issue four, reverse the dismissal, render judgment that Langley is entitled to an extension of time to file a supplemental report, and remand for further proceedings.

JOHN'S DEATH

Early on October 6, 1996, because he was experiencing stomach pain, Marie took John to the emergency room at Providence Hospital. An abdominal x-ray was performed, and John was discharged with a diagnosis of fecal impaction. He was given a gallon of Golytely to drink at home and told to return in the evening. John and Marie returned less than two hours later; John was in acute pain. He was admitted to the hospital under the care of Dr. John Jones, a medical resident who was under the supervision of Dr. Jernigan, the attending physician. John s condition worsened during the afternoon. Early in the evening, gastroenterology and surgical consults were ordered. Later that night, surgery was performed, and a second operation was performed the next day, October 7. John died on October 8, forty-nine hours after he first went to Providence.

THE REPORTS, THE MOTION, THE HEARING

Approximately forty-five days after filing suit, Marie filed two expert reports one by Dr. Charles McKhann, a surgeon, and Dr. Albert Weihl, an emergency-room and family doctor; the other by Dr. Howard Spiro, a gastroenterologist. A curriculum vitae for each expert was also filed. Prior to her claims being dismissed, she filed a supplemental report by Dr. McKhann.

Dr. Jernigan's motion to dismiss asserted that Langley's expert reports did not meet the specificity requirements of former article 4590i.[3] Langley's response, in addition to asserting untimeliness, asserted that the reports were adequate and alternatively asked the trial court to consider Dr. McKhann's supplemental report.

On July 28, 2000, the trial court held a hearing, granted Dr. Jernigan's motion to dismiss, and signed the order dismissing and severing Langley's claims. At the hearing, Dr. Jernigan's counsel argued, We're here because they failed to meet the requirements of what the report must contain. . . . At the conclusion of the hearing, the trial judge acknowledged that he was dismissing because of the inadequacy of the report, noting the expert reports mentioned Dr. Jernigan just in passing.

APPLICABLE LAW AND ANALYSIS

Under former article 4590i, the test was two-pronged. First, does the report filed constitute a good-faith effort to comply with the statutory requirements? Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875-79 (Tex. 2001). Second, if it does not, under what circumstances may that failure be deemed the result of an accident or mistake rather than of intentional conduct or conscious indifference? Walker v. Gutierrez, 111 S.W.3d 56, 63-65 (Tex. 2003).

First Prong: Adequacy of the Reports

Langley's issues were formulated prior to the Supreme Court's decision in Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, and because of that decision, we will consider her second and third issues together. Palacios, 46 S.W.3d at 877-78.

Under article 4590i, a timely expert report could be challenged by a motion to dismiss. Chandler v. Singh, 129 S.W.3d 184, 187 (Tex. App. Texarkana 2004, no pet. h.). The statute directed the trial court to grant the motion if it appeared, after hearing, that the report did not represent a good-faith effort to comply with the definition of an expert report. Palacios, 46 S.W.3d at 877-78. In determining whether the report represented a good-faith effort, the trial court's inquiry was limited to the four corners of the report. See Chandler, 129 S.W.3d at 188 (citing former art. 4590i, 13.01(r)(6)); see also Palacios, 46 S.W.3d at 878. We review the court's decision under that statute by an abuse-of-discretion standard. Palacios, 46 S.W.3d at 877.

The expert report must represent only a good-faith effort to provide a fair summary of the expert s opinions. Id. at 878. The report does not have to marshal all of the plaintiff s proof, but it must include the expert s opinion on each of the statutory elements. Id. at 878-79. The plaintiff also does not have to present evidence in the report as if it were actually litigating the merits. Id. at 879. A report does not constitute a good-faith effort to comply with the statutory requirements if it omits any of the statutory elements. Id. The report must address three statutory elements as to each defendant: (1) state an applicable standard of care, i.e., what an ordinarily prudent physician would do under the same or similar circumstances; (2) indicate how the defendant breached the standard of care by stating what actions taken or not taken by the defendant deviated from the standard of care, i.e., a "fair summary" of the care which was expected, but not given; and (3) contain information on causation. See Chandler, 129 S.W.3d at 188. A "good-faith" effort requires that the report discuss the standard of care, breach, and causation with sufficient 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. Id. (citing Palacios, 46 S.W.3d at 875); see also Raines v. Stephens, No. 10-04-00137-CV, slip op. at 6, (Tex. App. Waco February 23, 2005, no pet. h.) (report not adequate).

We have reviewed the expert reports filed on Langley's behalf, using the standards set out above. The reports contain all three statutory elements, inform the defendant of the specific conduct called into question, and provide a basis for the trial court to conclude that the claims have merit. First, the element of standard of care for all of the doctors, including Dr. Jernigan, is included in the reports. The standard of care stated is: surgical consultation should have been obtained once the x-rays demonstrated obstruction. Second, the element of breach of that standard of care by Dr. Jernigan is included. Dr. Jernigan s alleged breach was not ordering the surgical consultation after the case was discussed with him. This is provided by the statements: At 4:30 p.m. his case was discussed with Dr. Jernigan and at 4:50 p.m. a lactulose enema was ordered. It is clear that Dr. Jernigan did not order a surgery consult at this point, which would be a breach of his standard of care. Third, the element of causation is present in the reports, where the Spiro report states: The delay in obtaining that surgical consultation led to the death of the patient. Also, following the paragraph describing the events of the afternoon and evening that specifically mentions Dr. Jernigan, the report states that [i]t is my opinion with a reasonable degree of medical certainty that he died directly as a result of the actions taken or not taken above. The McKhann/Weihl report states: The afternoon was critical in Mr. Langley s care because his condition deteriorated rapidly between 6:00 p.m. and 8:30. It is therefore my opinion within a reasonable degree of medical certainty, that surgery a few hours earlier more probably than not would have saved his life. These statements in the reports informed Dr. Jernigan that his specific conduct of not ordering the surgical consultation or delaying the order of the surgical consultation was being called into question by Langley. Thus, the reports provide a basis for the trial court to conclude that the claims against Dr. Jernigan have merit.

We find that Langley s reports were adequate. We conclude that the trial court did not act within its discretion in determining from the four corners of the documents that the experts did not discuss the standard of care, breach, and causation with sufficient specificity to inform Dr. Jernigan of the conduct being called into question. See Palacios, 46 S.W.3d at 878-79.

We sustain issues two and three as to the adequacy of the reports. Although we need not reach issue four, we will discuss it as an alternative holding.

IF REPORTS NOT ADEQUATE UNDER STATUTE

If Langley s reports were not adequate, the reports were, at a minimum, a good-faith effort to comply with the statutory requirements, and they did not omit any statutory elements. See id. Thus, in the alternative, we consider Langley s fourth issue.

Second Prong: Extension of Time

Langley argues that the court should have allowed her additional time to file a new or supplemental expert report. Section 13.01 of former article 4590i provided two methods by which a claimant could receive an extension to the 180-day deadline. Russ v. Titus Hosp. Dist., 128 S.W.3d 332, 336 (Tex. App. Texarkana 2004, pet. filed). Under section 13.01(f), "the court may, for good cause shown after motion and hearing, extend any time period specified in subsection (d) of this section for an additional 30 days. Only one extension may be granted under this subsection." Id. (citing former art. 4590i, 13.01(f)). Under the second method, found in section 13.01(g), if "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 with that subsection." See id. Section 13.01(g) has been interpreted to be mandatory on a finding that the failure was a result of accident or mistake. Id. (citing Moore v. Sutherland, 107 S.W.3d 786, 789 (Tex. App. Texarkana 2003, pet. denied)). An extension under section 13.01(g) could be obtained for either failure to file a report or for an inadequate report, provided the failure was not intentional or a result of conscious indifference. Id. (citing In re Morris, 93 S.W.3d 388, 391 (Tex. App. Amarillo 2002, no pet.)); see also Walker, 111 S.W.3d at 61.

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 and [a]ccordingly, 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 (emphasis added).

Dr. Jernigan filed a motion to dismiss due to inadequate expert reports. However, having held under the first prong that the reports were adequate and a good-faith effort and that no statutory elements were omitted, we cannot apply the mistake-of-law-matter-of-law holding in Walker. See In re Zimmerman, No. 06-04-00095-CV, 2004 Tex. App. LEXIS 10218, *8-9 (Tex. App. Texarkana, November 16, 2004, no pet. h.) (not released for publication). Therefore, the trial court was not required, as a matter of law, to find that no accident or mistake occurred. Id. To determine if the trial court abused its discretion in denying the request to file a new or supplemental report under the 30-day grace period, we follow the requisite abuse of discretion analysis required under Walker:[4]

A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. . . . When reviewing matters committed to the trial court s discretion, a court of appeals may not substitute its own judgment for the trial court s judgment.

Walker, 111 S.W.3d at 63. A trial court s resolution of a factual issue is arbitrary and unreasonable if the relator establishes that the trial court could reasonably have reached only one decision. Morrill v. Third Coast Emergency Physicians, P.A., 32 S.W.3d 324, 327 (Tex. App. San Antonio 2000, pet. denied) (citing Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992)).

For mistake of law to negate a finding of intentional conduct or conscious indifference, entitling the claimant to a grace period under section 13.01(g), Walker instructs the following:

In determining whether the failure to file adequate reports was due not to intentional disregard or conscious indifference but to accident or mistake, we must look to the knowledge and acts of the claimant. If the factual assertions in the claimant s testimony are not controverted by the opposing party, the claimant satisfies his or her burden if the testimony sets forth facts that, if true, negate intentional or consciously indifferent conduct by the claimant. In determining if the claimant s factual assertions are controverted, we look to all the evidence in the record.

Walker, 111 S.W.3d at 64. Unless the nonmovant specifically controverts the evidence presented by the movant regarding a mistaken belief, the movant prevails on the issue of mistake and the statutory provision allowing an extension of time is satisfied. Director, State Employees Workers Compensation Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994).

Langley s attorney asserts that the alleged failure to file an adequate report was made by accident or mistake in believing that the report was adequate and that the 30-day grace period should have been granted by the trial court judge.

The testimony of Marie Langley s attorney, Harry Wasoff, stated that Defendant Jernigan s name is specifically included in one of the two reports and that the two reports obviously do interweave in one to the other and [i]t was the opinion of our law firm and the other attorney at the time who was in the case, Kresch and Kresch, New York attorneys, that these reports were adequate. He further states:

My testimony is that it was our opinion as attorneys that the report was adequate, and failing to have heard anything from anybody else, we assumed that it was not going to be opposed. If that was a mistake, it was a mistake in good faith. If the report should have been more specific, we just didn t know that at the time and we had no inclination on that basis. It is our belief that we exercised good faith and that we exercised due diligence.

Wasoff also said that after receiving notice of this hearing:

I did send off at their request by Fed Ex copies of some additional medical records they requested, deposition testimony that had just been taken in like I believe it was April or May of this year that they wanted to look at. Subsequently, Dr. McKhann sent a supplementary report, which is attached to response and alternative motion for grace period to file.

Dr. Jernigan s attorney did not cross-examine Wasoff. Dr. Jernigan s attorney proceeded to argue that for each defendant, the statutory elements must be present, and that section 13.01(g) does not even apply to this case.

The trial court judge ruled as follows:

Judge: First of all, I m going to deny the plaintiff s request for a 30-day grace period. I do not believe that Subsection (g) applies - - 13.01(g) applies, but even if it does, I think, Mr. Wasoff, you ve probably met one prong of the requirement under 13.01(g), the filing for the grace period prior to the hearing on the defense s motion to dismiss, but I don t think you ve met the other prong, showing that it was not an accident - - that the failure to file the report or a more complete record was due to accident or mistake, particularly in light of the fact that we had a hearing - - when? How many weeks ago was it that we had one on Dr. Carpenter?

Mr. Moody: About seven.

Judge: Six or seven weeks ago on virtually the same fact situation. As I say, I don t think Subsection (g) applies anyway. So I m going grant the defense s motion to dismiss under 13.01 for the inadequacy of the report that was filed.

We believe that section 13.01(g) does apply, and this situation is different from the dismissal of Langley s claims against Dr. Carpenter. According to the four corners of the expert reports, Dr. Carpenter was the gastroenterologist who was called five minutes before the surgeons were called. Dr. Carpenter arrived 25 minutes after he was called. Since the surgeons had already been called, it is clear that the claims against Dr. Carpenter did not have merit because he did not participate in the delay of obtaining a surgical consultation, i.e., did not breach his standard of care.

The record is devoid of any evidence by Dr. Jernigan that would controvert Langley s mistaken belief that the reports were adequate or made in good faith. Accordingly, Langley s uncontroverted evidence that the reports were adequate and made in good faith is sufficient to show that the alleged failure to file an adequate report was not the result of conscious indifference or intentional conduct, but a mistake. See Horsley-Layman v. Angeles, 968 S.W.2d 533, 536 (Tex. App. Texarkana 1998, pet. denied). We find the trial court abused its discretion in not granting Langley s extension of time to file an adequate report. See Evans, 889 S.W.2d at 268; Angeles, 968 S.W.2d at 536.

Accordingly, in the alternative, we sustain Langley s fourth issue.

RESPONSE TO DISSENT

We find it necessary to respond to the dissent with the legislative history of former article 4590i. The house bill analysis states:

CSHB 971 is a reasonable compromise that would help focus judicial resources on legitimate claims while protecting the rights of plaintiffs to sue when they are injured. . . . Reducing the number of frivolous lawsuits filed against doctors and other health care professionals and making the malpractice litigation system more efficient would allow doctors to spend less time in the courtroom and more time treating patients.

House Comm. On Civil Practices, Bill Analysis, Tex. H.B. 971, 74th Leg., R.S. (1995). Thus, the legislative purpose of former article 4590i is to curtail frivolous lawsuits against physicians and other health care providers. After reviewing the four corners of the two expert reports, we believe that the lawsuit against Dr. Jernigan is not frivolous. We are not saying that Dr. Jernigan committed medical malpractice in this opinion we are finding that the claims against Dr. Jernigan have merit and that Langley should be allowed to proceed with her litigation against him.

CONCLUSION

The Supreme Court overruled Langley's first issue. Having sustained her second and third issues, we reverse the dismissal of her claims against Dr. Jernigan. Alternatively, we also sustain her fourth issue, reverse the dismissal of her claims against Dr. Jernigan, and render an order that Langley is entitled to the grace period to file a new or supplemental expert report. We remand the cause for further proceedings.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissenting)

Reversed and remanded

Opinion delivered and filed March 2, 2005

[CV06]

[1] Marie represented herself, the Estate of John Langley, and Mariah Langley, a minor.

[2] As the Supreme Court noted, The Legislature recently codified article 4590i and added a deadline to object to the inadequacy of an expert report. Under the new law, a defendant health care provider has twenty-one days after being served with the expert report to object to the report's insufficiency or all objections are waived. Act of June 2, 2003, 78th Leg., R.S., H.B. 4, 10.01 (to be codified at TEX. CIV. PRAC. & REM. CODE ch. 74). Jernigan, 111 S.W.3d at 156 n.1.

[3] Article 4590i was amended in 1995 to include the requirements of an expert report and curriculum vitae. Act of May 18, 1995, 74th Leg., R.S., ch. 140, 1995 Tex. Gen. Laws 985, 986, repealed by Act of June 11, 2003, 78th Leg., R.S., ch. 204, 2003 Tex. Gen. Laws 847, 884. Although it has been repealed by the codification, we refer throughout this opinion to the version in effect at the time Langley's claims were dismissed as article 4590i.

[4] Langley met the first requirement of section 13.01(g) by filing her motion for relief under this section before the hearing on Dr. Jernigan s motion to dismiss. See Tex. Rev. Civ. Stat. Ann. art. 4590i, 13.01(g) (Vernon Supp. 2001).