                                          NO. 07-05-0033-CV

                                    IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                                 PANEL D

                                          JULY 7, 2005
                                ______________________________

               In re COVENANT MEDICAL CENTER and JOHN EATON, L.V.N,

                                                                               Relators
                              _________________________________

                 FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

                NO. 2003-522-597; HON. MACKEY K. HANCOCK, PRESIDING
                           _______________________________

                                      Original Proceeding
                               _______________________________


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

       Covenant Medical Center and John Eaton, L.V.N. (collectively referred to as

Covenant), petitioned this court for a writ of mandamus directing the trial court to 1) vacate

its order granting Andrew Cord a 30-day grace period to file a medical expert report under

§13.01(g) of article 4590i of the Texas Revised Civil Statutes and 2) dismiss Cord’s suit.

Cord was not entitled to an extension because the medical report tendered fell outside the

scope of §13.01(g), says Covenant, and, therefore, the trial court was obligated to dismiss

the suit.1 We deny the application.


       1
           The report in question was issued by a registered nurse.
         The first question we must address is whether the avenue of mandamus can be

used to address the issue before us. As recently as this year, a panel of this court held that

it could. See In re Brown, No. 07-04-0455-CV, 2005 WL 176504 at 1 (Tex. App.– Amarillo

January 27, 2005, orig. proceeding); accord, In re Rodriguez, 99 S.W.3d 825, 827-28 (Tex.

App.–Amarillo 2003, orig. proceeding) (holding the same); In re Morris, 93 S.W.3d 388, 390

(Tex. App.–Amarillo 2002, orig. proceeding) (holding the same). So the answer is yes.

         Next, we must determine whether the trial court abused its discretion by granting

Cord 30 additional days to file an adequate expert report. See In re Entergy Corp., 142

S.W.3d 316, 320 (Tex. 2004) (holding that before mandamus can issue, the applicant must

show that the trial court clearly abused its discretion); Walker v. Gutierrez, 111 S.W.3d 56,

63 (Tex. 2003) (holding that the appropriate standard of review when assessing whether

the trial court erred in granting an extension is one of abused discretion). According to

Covenant, such an abuse occurred because the failure to timely provide an adequate report

resulted not from an accident or mistake, as contemplated by art. 4590i, §13.01(g), but

rather intentional or consciously indifferent conduct.2 Moreover, the conduct consisted of




         2
             Article 459 0i, §13 .01(g ) provided that:

                     Notwithstanding any oth er provision of this sec tion, if a cla imant has faile d to com ply
                     with a deadline established by Subsection (d) of this section and after hearing the
                     court finds that the failure of the claim ant or claim ant’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 claim ant to com ply w ith
                     that su bse ction . . . .

                     T E X . R E V . C IV . S T A T . A N N . art. 4590i, §13.01(g) (V ernon Sup p. 2003 ).

W e recognize that this article can now be found at T E X . C IV . P R A C . & R E M . C O D E A N N . §§74.001-74.507
(Verno n 200 5).

                                                                  2
a purported mistake of law concerning the qualifications or ability of a registered nurse to

opine about what caused the injury at issue.

       The expert in question (Paula L. Antognoli, Ph.D., R.N., C.N.A.A.) was, and is, a

registered nurse with a doctorate in philosophy. In her report, she generally described the

length of time she practiced nursing, her duties, and the areas of her “clinical expertise.”

The latter included “medical/surgical, critical care, emergency and trauma care, and

surgical services . . . .” So too did she state that the “enclosed vita attests to my

qualifications as a result of my education and experience to render an opinion about the

standard of care applicable to this case.” (Emphasis added). Nowhere in the report or

vitae, however, did she expressly represent that her qualifications also enabled her to

address causation.

       One suing another for medical malpractice must

       [n]ot 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 . . . (1) furnish to
       counsel for each physician . . . 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 . . . .

TEX . REV . CIV . STAT. ANN . art. 4590i, §13.01(d) (Vernon Supp. 2003). For a report to satisfy

art. 4590i, §13.01(d), it must be written by an expert and provide a fair summary of that

expert’s opinions regarding the applicable standard of care, its breach, and the causal

relationship between the breach and injury. Chisholm v. Maron, 63 S.W.3d 903, 906 (Tex.

App.–Amarillo 2001, no pet.). So too must it and the attached vitae establish the expert’s

qualifications as an expert. Id. That is, it must show that the declarant is qualified as an

expert on the subject about which he speaks. Id. at 906-07; accord In re Windisch, 138

S.W.3d 507, 511 (Tex. App.–Amarillo 2004, orig. proceeding).

                                                3
       Next, while expert testimony is normally required to establish the elements of a

medical malpractice claim, see Hood v. Phillips, 554 S.W.2d 160, 165-66 (Tex. 1977), that

rule has its exceptions. For instance, under some circumstances it may not be necessary

to prove causation. Schneider v. Haws, 118 S.W.3d 886, 892-93 (Tex. App.–Amarillo

2003, no pet.); Traut v. Beaty, 75 S.W.3d 661, 668 (Tex. App.–Texarkana 2002, no pet.).

Those circumstances include situations wherein the relationship between the act and result

is a topic that can be accessed simply through the exercise of a factfinder’s general

experience and common sense. Id.

       At bar, Cord sued Covenant and a licensed vocational nurse (LVN). His complaints

were founded upon alleged breaches of standards applicable to the nursing profession.

Being that the standards of care at issue pertained to nursing, as opposed to the practice

of medicine by a physician, Cord had a registered nurse (Antognoli) review the supposed

misfeasance and draft a report per §13.01(d), art. 4590i. In her report, Antognoli not only

described the acts she deemed misfeasance but also opined about the applicable

standards of care which a nurse was to follow, their breach, and the causal relationship

between their breach and injury suffered by Cord.           Furthermore, in explaining her

qualifications as an expert, she said nothing about her ability to discuss the topic of

causation. Instead, she simply represented that her education and experience enabled her

“to render an opinion about the standard of care . . . .” Thereafter, the trial court found the

report deficient; it apparently believed that she either was not qualified as an expert to

opine about causation or did not illustrate that she was so qualified. Nonetheless, it

eventually gave Cord 30 more days to file a report satisfying the requirements of §13.01(d).



                                              4
         Implicit in the decision to extend Cord more time is the finding that neither he nor his

attorney acted intentionally or with conscious indifference when tendering the initial report.3

Indeed, one of Cord’s attorney’s testified that they did not so act but thought a nurse such

as Antognoli was qualified to opine about the results of one’s failure to abide by standards

of care recognized in the field of nursing. And, while admitting that Antognoli may not have

been qualified to discuss the “extent of the brain damage” suffered by Cord, he nonetheless

thought her capable of analyzing the effect one’s inability to breathe would have on one’s

well-being. Indeed, he informed the trial court that with regard to the failure to “monitor a

patient, if a patient stops breathing, you probably don’t even need to be a nurse to say

that’s going to cause harm.”

         Given the statement of Cord’s attorney, there is evidence of record upon which the

trial court could have found (when deciding whether to grant additional time) that counsel

likened the element of causation to be of the kind mentioned in Schneider and Traut; that

is, of the type that requires no expert testimony. In other words, the trial court had before

it evidence of a purported mistake made by Cord’s attorney which influenced his decision

to have Antognoli draft the report. The alleged mistake consisted of the belief that a

registered nurse could opine not only about the duties imposed on nurses but also the

injuries caused others by the misconduct of nurses. More importantly, that nurses could

so testify in certain situations found support in the law, as illustrated by Schneider and




         3
              Again, statute permits the trial court to grant the extension if it concludes that the claimant’s actions
were neither intentional nor the result of conscious indifference but rather ac cidental or a mistake. T E X . R E V .
C IV . S T A T . A N N . art.4590i, §13 .01(g) (Ve rnon S upp. 20 03).

                                                          5
Traut.4 Since evidence of such a belief appears of record and the belief has arguable basis

in the law, the trial court had basis to conclude that the mistake of counsel was accidental

as opposed to intentional or consciously indifferent. And, because of that we cannot say

it acted unreasonably or abused its discretion in granting Cord a 30-day extension. Davis

v. Huey, 571 S.W.2d 859, 862 (Tex. 1978) (holding that when findings of fact and

conclusions of law are not filed, the judgment must be upheld on any legal theory supported

in the record).

        To the extent Covenant suggests that Walker v. Gutierrez mandates a different

result, we would disagree. Walker involved a situation wherein the report omitted one or

more elements required by §13.01(r)(6) of the Revised Civil Statutes. And, because statute

clearly dictated that the report cover each element, the Supreme Court hesitated to excuse

non-compliance with settled law. Walker v. Gutierrez, 111 S.W.3d at 64; see also In re

Zimmerman, 148 S.W.3d 214, 217 (Tex. App.–Texarkana 2004, orig. proceeding). Yet,

unlike the circumstance in Walker, authority here exists that enables a complainant to

utilize a non-expert’s opinion on causation in certain cases. So too does the record hold

evidence indicating that Cord and his attorneys thought that authority applied. So, we

cannot say that the mistake, if any, by Cord implicated settled law known to Cord and

contrary to his position.

        Accordingly, the petition for writ of mandamus is denied.


                                                                      Brian Quinn
Campbell, J., dissenting.                                             Chief Justice


        4
          Whether the acts and inju ry inv olve d in the case at bar evince one of those situations is not a matter
befo re us at this tim e.

                                                        6
