                                   NO. 07-08-0023-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                   MAY 13, 2009
                          ______________________________

      BETTY WHITE, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE
            OF THE ESTATE OF WARREN WHITE, DECEASED,

                                                                Appellant

                                             v.

                      BAYLOR ALL SAINTS MEDICAL CENTER,

                                                      Appellee
                        _________________________________

             FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY;

                NO. 096-222350-07; HON. JEFF WALKER, PRESIDING
                        _______________________________

                               Memorandum Opinion
                         _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Betty White (White), individually and as personal representative of the estate of

Warren White, deceased, appeals from the trial court’s dismissal of her health care liability

claim against Baylor All Saints Medical Center (Baylor). White had sued Baylor and then

moved to non-suit that action before tendering an expert’s report. A like suit was initiated

several months later against the same defendant and involving the same actors. Within
days of initiating the second proceeding, White served her expert’s report upon Baylor. No

one disputes that the date upon which the report was eventually served exceeded 120

days from the date White commenced the first action against Baylor. Given this, Baylor

moved to dismiss the proceeding because the report was untimely. The trial court agreed

and granted the motion. The pivotal issue before us is whether the 120-day period within

which one prosecuting a health care liability claim has to serve an expert’s report starts

anew each time the action is non-suited and later re-filed. White also asks us to consider

whether other theories, which include tolling or the relation-back doctrine, render the report

timely. Answering no, we affirm the trial court’s dismissal of the cause.

       Whether Non-suit Coupled with Refiling Starts Period Anew

       All recognize that the version of §74.351(a) of the Texas Civil Practice and

Remedies Code applicable at bar is that which was in existence prior to September of

2005. Furthermore, it provided that one prosecuting a health care liability claim must serve

on each party one or more expert reports with a curriculum vitae no later that 120 days

“after the date the claim was filed.” TEX . CIV. PRAC . & REM . CODE ANN . §74.351(a) (Vernon

2005). Failing to abide by the deadline resulted in the dismissal of the cause, if the

defendant so moved. Id. §74.351(b).

       As previously mentioned, the pivotal question before us is whether the 120-day

period begins anew each time a health care liability claim is non-suited then re-filed. Every

opinion we found that addressed this specific question said no. Medical Hosp. of Buna,

Tex., Inc. v. Wheatley, No. 09-08-0183-CV, 2009 Tex. App. LEXIS 2769 at *17 (Tex.

App.–Beaumont April 23, 2009, no pet. h.); Runcie v. Foley, 274 S.W.3d 232, 235-36 (Tex.



                                              2
App.–Houston [1st Dist.] 2008, no pet.); Daughtery v. Schiessler, 229 S.W.3d 773, 775

(Tex. App.–Eastland 2007, no pet.); Empowerment Options, Inc. v. Easley, No. 09-06-

0148-CV, 2006 Tex. App. LEXIS 9696 at *11-12 (Tex. App.–Beaumont November 9, 2006,

pet. denied);Mokkala v. Mead, 178 S.W.3d 66, 71 (Tex. App.–Houston [14th Dist.] 2005,

pet. denied). Instead, they hold that the time period begins when the claim is first filed and

continues to run even if a non-suit is taken. See Mokkala v. Mead, 178 S.W.3d at 71.

More importantly, White cites us to no cases considering the same question and holding

otherwise. We see no reason to deviate from the unanimous stance taken in Wheatley,

Runcie, Daughtery, Mokkala, and Easely and overrule White’s contention that the period

began anew. To hold otherwise would be to ignore the plain wording of §74.351(a)

selected by the legislature.

       Tolling and Relation-back

       White next argues that the non-suit tolled the running of the 120-day deadline. She

arrived at this conclusion by analogizing the period to a statute of limitations. So too did

she invoke principles which involve equitable tolling and the relation-back doctrine and

assert that they also render timely her expert’s report. We disagree for several reasons.

       First, in Packard v. Miller, No. 07-06-0454-CV, 2007 Tex. App. LEXIS 4513 (Tex.

App.–Amarillo May 31, 2007, pet. denied), we refused to extend the statutory deadline

applicable to tendering expert reports through the use of equitable principles. Id. at *6. To

paraphrase Packard, it is not within our province to adopt an equitable extension to the

clear requirements of the statute. Id. To apply equitable tolling here would be to violate

what we said in Packard.



                                              3
       Second, we acknowledge that some have compared §74.351(a) to a statute of

limitations. But we do not see how this helps White. While it may be that initiating a suit

tolls the running of limitations, e.g., Sheldon Indep. School Dist. v. M. L. Hudson Elec. Co.,

567 S.W.2d 541, 543 (Tex. Civ. App.–Tyler 1978 , no writ), it does not remain tolled once

the suit is dismissed. Rather, the relevant time period is calculated from the time the claim

accrued until suit is re-filed. Clary Corp. v. Smith, 949 S.W.2d 452, 459 (Tex. App.–Fort

Worth 1997, writ denied). So, by following White’s analogy, one would have to conclude

that the time period that started with the filing of her first suit never stopped, despite the

voluntary dismissal.

       Third, while the relation-back doctrine can be used as a means of asserting an

untimely cause of action, it applies to situations wherein a litigant amends his petition to

assert the untimely claim and the latter arises from the same transaction or occurrence

underlying the timely claims. Brewster Columbia Med. Ctr. of McKinney Subsidiary, L.P.,

269 S.W.3d 314, 318 (Tex. App.–Dallas 2008, no pet.) (stating that an amendment or

supplement to a pleading relates back as long as the amended or supplemented claim is

not based on new, distinct, or different transactions). Additionally, White cites us to no

cases extending this theory to the initiation of subsequent lawsuits, as opposed to the mere

amendment or supplementation of pleadings in a suit that already is pending.

       Adding a New Claim

       Finally, White posits that the 120-day period which began when she filed her first

suit did not encompass the new claim asserted in her second action. We again disagree.




                                              4
       White first sued Baylor because its “pharmacy, nurses, nurses aides and other staff

. . . failed to administered medications” to her husband (Warren) “as prescribed.” So too

did she describe her claim as those persons giving Warren a drug that “was neither

prescribed nor . . . beneficial to” him. Via the petition in her second suit, she again sued

Baylor alone for the conduct of the same actors. However, she changed her allegations

by stating that the hospital’s “staff dispensed and administered . . . a drug that was neither

prescribed nor beneficial to . . . Warren . . . .” (Emphasis added). In other words, she now

complained not only of the staff administering inappropriate drugs but also dispensing

them. We see this as a distinction without a difference. Both concepts encompass the

same actors and the same purportedly underlying cause of Warren’s death, i.e. his

ingestion of a particular drug given him by hospital employees. And, while the pharmacy

may have “dispensed” the drug while the nursing staff “administered” it, the sequence of

events remained the same as that described in and underlying the claim in her first suit.

Indeed, White admitted as much when she argued that the allegations in the second

proceeding “relate-back” to those in the first; simply put, both concern the same

transaction, occurrence, or operative facts.

       In short, what we have before us is simply the same old wine being poured into a

new skin. The new skin does not change the character of the wine. Nor does now

invoking the word “dispense” differentiate the substance of her second suit from that of her

first. So, the 120-day period did not start anew by adding that word into her live pleading

filed in the second suit. See Medical Hosp. of Buna, Tex., Inc. v Wheatley, 2009 Tex. App.

LEXIS 2769 at *8 (stating that a plaintiff cannot use artful pleading to avoid the deadline);

Care Center, Ltd. v. Sutton, No. 09-07-469-CV, 2008 Tex. App. LEXIS 2743 at *15 (Tex.

                                               5
App.–Beaumont April 17, 2008, pet. filed) (holding that because the old claims were broad

enough to encompass the new ones, the 120-period did not renew itself); Toro v. Alaniz,

No. 04-06-0814-CV, 2007 Tex. App. LEXIS 3119 at *3-4 (Tex. App.–San Antonio April 25,

2007, no pet.) (stating that the time line for expert reports begins when the lawsuit is filed

and cannot be extended by filing an additional claim in an amended petition based on the

same assertion alleged in the original petition).

       Having rejected each of White’s issues and arguments, we affirm the final order

dismissing her lawsuit.



                                                    Brian Quinn
                                                    Chief Justice




                                              6
