Nexion Health at Oak Manor, Inc. d/b/a Oak Manor Nursing Home v. Lavene Brewer, Individually and as Representative of the Estate of James Brewer--Appeal from 145th District Court of Nacogdoches County

NO. 12-06-00307-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

NEXION HEALTH AT OAK MANOR, INC. APPEAL FROM THE 145TH

d/b/a OAK MANOR NURSING HOME,

APPELLANT

V. JUDICIAL DISTRICT COURT OF

LAVENE BREWER, INDIVIDUALLY

AND AS REPRESENTATIVE OF THE

ESTATE OF JAMES BREWER,

APPELLEE NACOGDOCHES COUNTY, TEXAS

NO. 12-06-00349-CV

IN RE: NEXION HEALTH AT OAK

MANOR, INC. d/b/a OAK MANOR ORIGINAL PROCEEDING

NURSING HOME, RELATOR

OPINION

Nexion Health at Oak Manor, Inc. d/b/a Oak Manor Nursing Home brings a parallel interlocutory appeal and mandamus proceeding complaining of the trial court s order denying its motion to dismiss the health care liability claims of Lavene Brewer, individually and as personal representative of the estate of James Brewer.1 We dismiss Oak Manor s appeal for want of jurisdiction and deny its petition for writ of mandamus.

Background

James Brewer, deceased, suffered from dementia and was a patient at Oak Manor Nursing Home. One night, Brewer wandered out of the nursing home and fell down a flight of stairs. When Oak Manor s staff found Brewer at the bottom of the stairs, he had several injuries requiring medical treatment.

Lavene Brewer, individually and as personal representative of Mr. Brewer s estate, filed suit against Oak Manor alleging that its nursing staff was negligent in failing to properly supervise Mr. Brewer to prevent him from falling down the stairs. Brewer served Oak Manor with an expert report from a nurse summarizing her opinions regarding the applicable standards of care, the breaches of those standards by members of Oak Manor s nursing staff, and causation. Oak Manor did not file a motion challenging the adequacy of the nurse s report. More than 120 days after the suit was filed, Oak Manor filed a motion to dismiss Brewer s health care liability claims contending that an expert report relating to causation must be from a physician.

After receiving Oak Manor s motion to dismiss but before the hearing on the motion, Brewer served Oak Manor with an expert report from a physician, which addressed the cause of Mr. Brewer s injuries. Brewer further requested an extension of time to cure the deficiency in the initial report. After hearing argument on the matter, the trial court denied Oak Manor s motion to dismiss and granted Brewer an extension of thirty days to file a report from a physician relating to the cause of Mr. Brewer s injuries. Oak Manor then brought a parallel interlocutory appeal and mandamus proceeding complaining of the trial court s order. We consolidate the two proceedings for purposes of this opinion.

Section 74.351 Motion to Dismiss

In a health care liability claim, the claimant must serve an expert report on each party within 120 days after filing suit. Tex. Civ. Prac. & Rem. Code Ann. 74.351(a) (Vernon Supp. 2007). The expert report must provide a fair summary of the expert s opinions 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. 74.351(r)(6). The plaintiff may use more than one expert to address the necessary elements of the report. See id. 74.351(i) ( Nothing in this section shall be construed to mean that a single expert must address . . . both liability and causation issues for a physician or health care provider. ). However, the legislature has mandated that, in health care liability claims, only a physician can offer an opinion regarding causation. Id. 74.351(r)(5)(C). Thus, for the plaintiff to serve a report or reports that are not deficient, the report or reports must address the necessary elements and at least one of the reports must be by a physician. Id. 74.351(r)(5)(C), (6).

The Extension. Oak Manor contends here, as it did in the trial court, that because Brewer did not furnish a report from a physician relating to causation, see id. 74.351(r)(5)(C), the report was not an expert report as defined by statute. See id. 74.351(r)(6) (defining expert report as a written report by an expert on the three statutory elements). Consequently, it concludes, the report was not merely deficient, but was no report at all and Brewer was not entitled to an extension of time. Brewer counters that a report was timely served. Id. 74.351(c).

After Oak Manor filed its interlocutory appeal and petition for writ of mandamus, the Texas Supreme Court decided Ogletree v. Matthews, No. 06-502, 2007 Tex. LEXIS 1028 (Tex. Nov. 30, 2007). In Ogletree, the court determined the issue in agreement with Brewer s position. Id., at *10. ( Indeed, the legislature recognized that not all initial timely served reports would satisfy each of the statutory criteria. ).

There are two circumstances in which an expert report may be deemed unserved. The first is when the expert report is not served within 120 days after the lawsuit was filed. Id. 74.351(b). When this occurs, the affected physician or health care provider may file a motion to dismiss. Id. 74.351(b). Upon the filing of the motion, the trial court has but one option: to dismiss the case with prejudice and award attorney s fees and costs of court to the movant. Id. 74.351(b); Jain v. Stafford, 214 S.W.3d 94, 97 (Tex. App. Fort Worth, pet. dism d); Garcia v. Marichalar, 185 S.W.3d 70, 74 (Tex. App. San Antonio 2005, no pet.). A report also may be deemed unserved when a timely served expert report does not meet the statutory definition of an expert report because it has one or more deficiencies in its contents. See, e.g., Valley Baptist Med. Ctr. v. Agua, 198 S.W.3d 810, 815 (Tex. App. Corpus Christi 2006, no pet.); Thoyakulathu, 192 S.W.3d at 853; see also Tex. Civ. Prac. & Rem. Code Ann. 74.351(c) (providing for extension of time if expert report has not been served because elements of the report are found deficient ). In that situation, the trial court has the discretion to 1) dismiss the case with prejudice and award attorney s fees and costs of court to the affected party or to 2) grant one thirty day extension to allow the claimant to cure the deficiency. Tex. Civ. Prac. & Rem. Code Ann. 74.351(b), (c); Ogletree, 2007 Tex. LEXIS 1028, at *10.

Because Oak Manor s complaint relates to the content of the report, it falls squarely within the second circumstance. As such, the report is deficient, but the deficiency does not render it no report at all. See Tex. Civ. Prac. & Rem. Code Ann. 74.351(c). Therefore, the trial court could grant the extension. But our analysis does not end here. We also must determine if the trial court properly denied Oak Manor s motion to dismiss.

Interlocutory Appeal

First, we must determine whether we have jurisdiction of Oak Manor s interlocutory appeal complaining of the trial court s denial of its motion to dismiss. As a general rule, only final judgments are appealable. Tex. Civ. Prac. & Rem. Code Ann. 51.012 (Vernon 1997); Stolhandske v. Stern, 14 S.W.3d 810, 813 (Tex. App. Houston [1st Dist.] 2000, pet. denied). One exception is an interlocutory order [denying] all or part of the relief sought by a motion under [Texas Civil Practices and Remedies Code] Section 74.351(b), except that an appeal may not be taken from an order granting an extension under Section 74.351. See Tex. Civ. Prac. & Rem. Code Ann. 51.014(a)(9) (Vernon Supp. 2007). However, this subsection must be strictly construed as a narrow exception to the general rule that only final judgments are appealable. Thoyakulathu v. Brennan, 192 S.W.3d 849, 851 n.2 (Tex. App. Texarkana 2006, no pet.).

Oak Manor argues that we have jurisdiction over its interlocutory appeal because the trial court denied its motion to dismiss. Again, the Texas Supreme Court, in Ogletree, clearly decided this issue against Oak Manor s position. Ogletree, 2007 Tex. LEXIS 1028, at *13-14. While a report should be deemed not served due to a deficiency, the trial court retains discretion to grant a thirty day extension under such circumstances, and the legislature explicitly decided that such orders are not appealable. Id. Thus, if a deficient report is served and the trial court grants a thirty day extension, that decision even if coupled with a denial of a motion to dismiss is not subject to appellate review. Id., at *13. Therefore, because the trial court s order denied Oak Manor s motion to dismiss but also granted Brewer an extension of time to cure her deficient report, the order is not appealable. Id. Consequently, we are without jurisdiction of Oak Manor s interlocutory appeal and will review the trial court s order by mandamus.

Prerequisites to Mandamus

Mandamus is an extraordinary remedy available to correct either a clear abuse of discretion or the violation of a legal duty when there is no adequate remedy by appeal. In re J.D. Edwards World Solutions Co., 87 S.W.3d 546, 549 (Tex. 2002). Relator has the burden to present a record sufficient to establish a right to mandamus. In re Taylor, 113 S.W.3d 385, 389 (Tex. App. Houston [1st Dist.] 2003, orig. proceeding). A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)). Thus, [w]e must focus on the record that was before the court and whether the decisions was not only arbitrary but also amounted to a clear and prejudicial error of law. In re Bristol-Meyers Squibb Co., 975 S.W.2d 601, 605 (Tex. 1998). When reviewing matters committed to the trial court s discretion, we may not substitute our own judgment for that of the trial court. Id. A trial court has no discretion in determining what the law is or applying the law to the facts. Id. at 840. Therefore, a clear failure by the trial court to analyze or apply the law correctly constitutes an abuse of discretion. Id.

Waiver of Objections

Under section 74.351(a), [e]ach, defendant physician or healthcare provider whose conduct is implicated in a report must file and serve any objection to the sufficiency of the report not later than the twenty-first day after the date it was served, failing which all objections are waived. Tex. Civ. Prac. & Rem. Code Ann. 74.351(a) (emphasis added). Here, Oak Manor admits that it did not object to the sufficiency of the nurse s report within the twenty-one days allowed by statute. It claims though that such failure is excused because no report had been served due to the absence of a physician s opinion on causation. Tex. Civ. Prac. & Rem. Code Ann. 74.351(r)(6).

Yet again, the supreme court considered this argument in Ogletree and rejected it. Ogletree, 2007 Tex. LEXIS 1028 at *5. As was the case in Ogletree, the nurse s report served on Oak Manor contained direct and explicit opinions clearly implicating the conduct of Oak Manor. Further, the parties here, as in Ogletree, agreed that the nurse s report was sufficient as to the standard of care and breach of that standard by Oak Manor. Unlike Ogletree, the nurse s opinion in this case addressed causation. Oak Manor urged in its motion to dismiss that the nurse, by statute, was not qualified to render an opinion as to causation. In Ogletree, the Texas Supreme Court determined that such an objection is directed to the report s sufficiency and could have been urged within the statutory twenty-one day period, as the statute clearly requires. Ogletree, 2007 Tex. LEXIS 1028, at *15-16. If the objection is not made within this period, it is waived. Id., at *16.

Because Oak Manor did not object to the nurse s report within the twenty-one day period, its objection was waived, and its motion to dismiss should have been denied. Thus, Oak Manor failed to present a record establishing that the trial court committed a clear and prejudicial error of law by denying Oak Manor s motion to dismiss.

Conclusion

Because we lack jurisdiction of Oak Manor s interlocutory appeal, the appeal is dismissed for want of jurisdiction. Because Oak Manor has failed to establish that the trial court committed a clear and prejudicial error of law by denying its motion to dismiss, we deny Oak Manor s petition for writ of mandamus. All pending motions are overruled as moot.

BRIAN HOYLE

Justice

Opinion delivered December 12, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

1 The Honorable Campbell Cox II, Judge of the 145th Judicial District Court, Nacogdoches County, Texas is the respondent.