                                   NO. 07-02-0335-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL E

                                  FEBRUARY 20, 2003

                          ______________________________


                           IN RE PABLO S. RODRIGUEZ M.D.

                        _________________________________


Before QUINN and REAVIS, JJ., and BOYD, S.J.1


                                         OPINION


       In this original proceeding, relator Pablo S. Rodriguez, M.D. seeks a writ of

mandamus requiring respondent the Honorable Patrick A. Pirtle, Judge of the 251st District

Court of Potter County, Texas, to vacate an order granting an extension of time to file an

expert report required by the Texas Medical Liability and Insurance Improvement Act (the

Act) and to dismiss the suit underlying this action. See Tex. Rev. Civ. Stat. Ann. art. 4590i

(Vernon Supp. 2003). In the underlying suit, Mary Lopez, the independent administratrix




       1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Tex. Gov’t Code Ann. § 75.002(a)(1) (Vernon Supp. 2003).
of the Estate of Ruben E. Grimaldo, the real party-in-interest (the real party), sought

recovery against relator.


       Article 4590i requires that a plaintiff must furnish the counsel for a defendant

physician one or more expert reports, together with a curriculum vitae for each expert, not

later than the 180th day after the date on which a health care liability claim is filed. Id.

§13.01(d). If the claimant fails to do so within the required time, on the motion of the

affected physician, the statute provides that the court shall enter an order dismissing the

cause of action with prejudice. Id. §13.01(e)(3).


       However, subsection 13.01(g) of the statute provides:


       Notwithstanding any other provision of this section, if a claimant has failed
       to comply with a deadline established by Subsection (d) of this section and
       after hearing 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. A motion by
       a claimant for relief under this subsection shall be considered timely if it is
       filed before any hearing on a motion by a defendant under Subsection (e) of
       this section.


Tex. Rev. Civ. Stat. Ann. art. 4590i §13.01(g) (Vernon Supp. 2003).


       Subsection (l) of the statute provides that after a hearing, if it appears to the court

that a tendered report does not represent a good faith effort to comply with the definition

of an expert report contained in subsection (r)(6), the court shall grant a motion seeking

dismissal. As defined in the statute, an “expert report” means a written report that provides



                                              2
a fair summary of the expert’s opinions as of the date of the report regarding: 1) applicable

standards of care, 2) the manner in which the care rendered by the physicians failed to

meet the standards, and 3) the causal relationship between that failure and the injury,

harm, or damages claimed. Id. §13.01(r)(6).


       A brief discussion of the procedural history of this matter is necessary. From the

mandamus petition and response, it appears that the suit underlying this proceeding was

filed by the real party against Grand Medical Clinic, Inc., Leonardo E. Salcedo, M. D., and

Susan Baltz on March 12, 2001. On May 4, 2001, Dr. Salcedo sought indemnity from

relator Dr. Rodriguez. On May 9, 2001, seeking to meet the expert report requirement of

the statute, the real party filed a report from Dr. George Cole and, on May 10, 2001, filed

an amended petition in which they included relator as a party defendant. On January 15,

2002, relator moved to dismiss the underlying suit because the report filed by the real party

failed to meet the requirements of section 13.01(r)(6) of article 4590i in that: 1) it did not

show it had been prepared by an expert as the term is defined in the statute; 2) it did not

state with specificity the applicable standard of care and how it was breached by the health

provider, and 3) it did not demonstrate a causal link between the conduct complained of

and the alleged injury. Thus, relator contended, because the 180-day period within which

a proper report might be filed had expired, section 13.01(e) of the statute required the

dismissal of the lawsuit with prejudice.


       On January 31, 2002, the real party responded by denying the report was

inadequate, and in the alternative, sought an extension of time pursuant to section


                                              3
13.01(g). The trial court subsequently concluded the filed report was inadequate, but

because the failure to file an adequate report was the result of accident or mistake, granted

a 30-day grace period within which to file an adequate report. That is the order that gives

rise to this proceeding.


       We hold the trial court was correct in its determination that the report was

inadequate and did not meet the statutory requirements.          Thus, we must decide if

respondent abused his discretion in granting the real party a 30-day extension of time

within which to file an amended expert report, and if so, if relator is entitled to the

mandamus relief he seeks.


       To be entitled to mandamus relief, relator must show that the trial court clearly

abused its discretion or violated a ministerial duty. Walker v. Packer, 827 S.W.2d 833, 842

(Tex. 1992) (orig. proceeding). An abuse of discretion occurs when the trial court’s

decision is so arbitrary or unreasonable as to amount to a clear and prejudicial error. Id.

There must also be no adequate remedy at law. In that connection, the cost or delay of

having to go through trial and the appellate process does not necessarily make that

procedure inadequate. Id.


       To support his contention that he has no adequate remedy at law and is entitled to

bring this mandamus proceeding, relator relies upon the reasoning employed by the court

in In re Collom & Carney Clinic Ass’n, 62 S.W.3d 924 (Tex. App.–Texarkana 2001, no

pet.). In that case, the court held that the statute had the specific purpose of eliminating



                                             4
frivolous claims filed against medical practitioners by requiring dismissal if an expert report

sufficiently showing the claim was not frivolous was not timely filed. Because of this

purpose, the court concluded, a remedy by direct appeal was inadequate and mandamus

would be available in a proper case. Id. at 929-30. As we did in In re Olivia Morris, M.D.

(Tex. App.–Amarillo 2002) (orig. proceeding) (not yet reported), we agree with that decision

and the court’s reasoning.      Thus, we will determine whether mandamus remedy is

available in this case.


       In arguing his entitlement to the writ, relator emphasizes the reason a report is

required to set out an expert’s opinion that the specific conduct called into question was

not proper, is to provide a basis for the trial court to conclude that the plaintiff’s claim has

merit. See American Transitional Care v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001). He

then posits that an inadequate report is akin to no report and because the real party’s

report, even though timely filed was inadequate, the trial court should have dismissed the

suit. In considering that argument, we must determine if the trial court was justified in

determining that the real party established that her failure to timely file an adequate report

was the result of an accident or mistake and was not intentional or the result of conscious

indifference.


       While the statute itself does not define what constitutes intentional acts or conscious

indifference, those terms have been discussed in a default judgment context. See

Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939). There

appears to be a consensus among the courts of appeal that in suits such as this one, the


                                               5
legislature intended the courts to construe those terms in a manner similar to their

application in the default judgment context. See Whitworth v. Blumenthal, 59 S.W.3d 393,

400 (Tex. App.–Dallas 2001, pet. filed); Finley v. Steenkamp, 19 S.W.3d 533, 539 (Tex.

App.–Fort Worth 2000, no pet.); Schorp v. Baptist Mem. Health Sys., 5 S.W.3d 727, 731

(Tex. App.–San Antonio 1999, no pet.); Nguyen v. Kim, 3 S.W.3d 146, 150-51(Tex.

App.–Houston [14th Dist.] 1999, no pet.); Layman v. Angeles, 968 S.W.2d 533, 536 (Tex.

App.–Texarkana 1998, no pet.); and McClure v. Landis, 959 S.W.2d 679, 681 (Tex.

App.–Austin 1997, pet. denied).


      As a result, these courts hold that a trial court’s decision regarding a grace period

is reviewable for an abuse of discretion. See, e.g., Chisholm v. Maron, 63 S.W.3d 903,

906 (Tex. App.–Amarillo 2001, no pet.); Martinez v. Battelle, 41 S.W.3d 685, 690 (Tex.

App.–Amarillo 2001, no pet.); Knie v. Piskun, 23 S.W.3d 455, 461 (Tex. App.–Amarillo

2000, pet. denied); Layman, 968 S.W.2d at 535; Estrello v. Elboar, 965 S.W.2d 754, 757

(Tex. App.–Fort Worth 1998, no pet.); and McClure, 959 S.W.2d at 681. This is the same

standard of review used by the supreme court in the default judgment context. See

Craddock v. Sunshine Bus Lines, 133 S.W.2d at 126.


      The burden of establishing that inadequacy of an expert report was not intentional

or the result of conscious indifference, but was the result of an accident or mistake rests

with the claimant. Reittmer v. Garza, 65 S.W.3d 718, 724 (Tex. App.–Houston [14th Dist.]

2001, no pet.); Finley, 19 S.W.3d at 539; Schorp, 5 S.W.3d at 731; Layman, 968 S.W.2d

at 536; McClure, 959 S.W.2d at 681; and Carey Cruthcer, Inc. v. Mid-Coast Diesel Servs.,


                                            6
Inc. 725 S.W.2d 500, 502 (Tex. App.–Corpus Christi 1987, no writ). In determining

whether there was intentional disregard or conscious indifference, an appellate court must

look to the knowledge and acts of the party who has suffered the consequences of the

error and asked for relief. Strackbein v. Prewitt, 671 S.W.2d 37, 39 (Tex. 1984); Layman,

968 S.W.2d at 536; Nguyen, 3 S.W.3d at 151.


       At the hearing on relator’s motion to dismiss, the real party’s attorney was the only

witness who testified. He testified that he recognized the importance of an adequate

expert report in cases such as this and he was an experienced personal injury attorney.

He had examined Dr. Cole’s report and, in his opinion, it was sufficient to meet the

statutory requirements. If it was not sufficient, he candidly admitted, it was a mistake on

his part. Thus, to resolve this proceeding, we must decide if the real party’s attorney’s

belief that Dr. Cole’s report met the statutory requirements is sufficient to justify the

§13.01(g) grace period granted by the trial court. This particular question was not

addressed in Morris because the relator there did not challenge the trial court finding that

the failure to file an adequate expert report was not intentional, but the result of an accident

or mistake.


       In Bank One, Texas, N.A. v. Moody, 830 S.W.2d 81, 85 (Tex. 1992), albeit in a

default judgment context, the court specifically held that a mistake of law may constitute

an accident or mistake. In Knie v. Piskun, 23 S.W.3d at 464-65, we interpreted the holding

in Bank One as establishing that a mistake of law, as contrasted to ignorance of the law,

can be sufficient to meet the accident or mistake standard explicated in Craddock. In


                                               7
Roberts v. Medical City Dallas Hospital, Inc., 988 S.W.2d 398, 403 (Tex. App.–Texarkana

1999, pet. denied), the court held that an attorney’s mistaken belief about what the statute

required generally is sufficient excuse to justify granting the grace period.


       Suffice it to say, after considering all of the above authorities and the testimony of

the real party’s attorney, we cannot say the trial judge abused his discretion in determining

that any deficiencies in the submitted report were not the result of conscious indifference,

but the result of accident or mistake. He was therefore justified in granting the grace period

within which to file an amended report.


       Accordingly, relator is not entitled to mandamus relief and his petition must be, and

is hereby, denied.



                                                  John T. Boyd
                                                  Senior Justice




                                              8
