
NO. 07-02-0275-CV



IN THE COURT OF APPEALS



FOR THE SEVENTH DISTRICT OF TEXAS



AT AMARILLO



PANEL E



SEPTEMBER 20, 2002



______________________________





IN RE OLIVIA MORRIS, M.D.





_________________________________





Before REAVIS and JOHNSON, JJ, and BOYD, SJ.
(footnote: 1)
	In this original proceeding, relator Olivia Morris, M.D., asks us to mandamus the Honorable David Gleason, Judge of the 47
th
 District Court of Potter County, Texas.  The action arises out of an underlying suit filed by Donna and Ralph York, (the Yorks) the real parties-in-interest, against relator.  In the suit, which is a health care liability claim filed under the Texas Medical Liability and Insurance Improvement Act (the Act), the real parties-in-interest seek recovery for damages resulting from relator’s alleged negligent acts in the care and treatment of Donna.  
See
 Tex. Rev. Stat. Ann. art. 4590i (Vernon Supp. 1999).  The question presented is whether respondent, pursuant to article 4590i §13.01(g) of the Texas Revised Civil Statutes, erroneously granted the real parties-in-interest a 30- day extension of time within which to file an amended expert report.  

Article 4590i requires that not later than the 180
th
 day after the date on which a health liability claim is filed, the plaintiff must furnish counsel for each defendant physician one or more expert reports together with a 
curriculum vitae
.  
Id. 
§13.01(d)
.  
If the claimant fails to do so within the required time, the statute provides that on the motion of the affected physician, the court 
shall
 enter an order dismissing the cause of action with prejudice.  
Id
. § 13.01(e)(3).

Subsection (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. 1999).

Subsection (l) of the statute provides that if, after hearing, 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 statutorily defined, an expert report means a written report that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.  
Id
. § 13.01(r)(6).  

The parties do not dispute that the Yorks filed a report from an expert on May 24, 2001, which was within 180 days of the filing of the underlying suit.  On February 5, 2002, relator moved to dismiss the lawsuit on the basis that the report failed to identify the appropriate standard of care, and that deficiency made the report less than a good faith effort to comply with the statute.  Thus, relator alleged, because the 180-day period had passed, section 13.01(e) of the statute required the dismissal of the lawsuit with prejudice. 

 The Yorks responded to the dismissal motion by denying the report was inadequate and, in the alternative, asked for an extension of time pursuant to section 13.01(g) of the statute.  The trial court subsequently entered orders granting a 30-day grace period within which to comply with the statute, and finding that although the submitted expert report was inadequate under the statute, the failure to file an adequate report was the result of accident or mistake.

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, and the cost or delay of having to go through trial and the appellate process does not render the remedy inadequate.  
Id
. at 842.

To support her contention that she has no adequate remedy at law and is entitled to have this court consider her right to mandamus, relator relies upon 
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 because the statute expressed a specific purpose of addressing frivolous claims filed against medical practitioners by requiring dismissal if a proper expert report was not filed, a remedy by direct appeal was inadequate and mandamus would be available in a proper case.  
Id
. at 929-30.  We agree with that decision and will consider whether mandamus is available in this case.

The gist of relator’s complaint is that the 30-day grace period provided for in subsection (g) only applies in the instance of a failure to timely file an expert report, but does not apply in instances in which the court determines that the report by an expert, although timely filed, is inadequate.  In support of her position, relator argues that the plain meaning of the term “deadline” as used in subsection (g) means the latest time by which something must be done and that interpretation must be applied.  Thus, she reasons, because the 180-day time period for filing an expert report is the only deadline referred to in subsection (d), the 30-day grace period permitted under subsection (g) can only refer to instances in which no report was filed.  Therefore, she concludes, had the legislature intended for a grace period to apply to subsection (l) inadequacies, it would have provided so in the statute.

In 
American Transitional Care Centers of Texas, Inc. v. Palacios, 
46 S.W.3d 873 (Tex. 2001), the court pointed out that if “a trial court determines that an expert report does not meet these statutory requirements and the time for filing a report has passed, it must then dismiss with prejudice the claims against the defendant who has challenged the report.”  
Id
. at 877.  In that case, the plaintiff had failed to file an expert report within the 180-day period.  The trial court granted an extension of time within which to file a report  and a report was filed.  Subsequently, the trial court granted the Care Center’s motion to dismiss on the ground that the filed report was still not adequate.  
Id. 
at 876.
  
A majority of the court of appeals reversed the dismissal on the basis that the amended report was sufficient to show a good faith effort to comply.  Thus, the question before the supreme court was whether the trial court abused its discretion in dismissing the suit.  The high court held no abuse of discretion was shown, reversed the court of appeals, and affirmed the dismissal.  The court was not faced with the question before us today, namely, whether the subsection (g) relief is available in instances in which the trial court has found the initial report inadequate, but also found the failure was not intentional or the result of conscious indifference, but the result of an accident or mistake.

In 
Whitworth v. Blumenthal
, 59 S.W.3d 393 (Tex.App.--Dallas 2000
, pet. dism’d by agr.) (en banc), the court addressed the same question as that before us.
(footnote: 2)  In the face of a strong dissent, the majority determined that if a report failed to meet the statutory requirements, by definition, it was not an “expert report.”  
Id. 
at 399.  Therefore, no “expert report” had been filed within the 180-day period, which constituted a failure to meet a deadline set out in subsection (d).  
Id.  
That failure triggered consideration of the 30-day grace period provided for in subsection (g).  En route to its conclusion, the majority also noted the provision in subsection (g) that it applied “notwithstanding any other provision” of section 13.01.  
Id.
 at 398-99.  We agree with that reasoning. 

Other courts of appeal have also found, or intimated that subsection (g) is applicable in situations in which a timely filed expert report fails to meet the statutory requirements.  
See Rittmer v. Garza
, 65 S.W.3d 718, 724 (Tex.App.--Houston [14
th
 Dist.] 2001, no pet.) (finding failure to grant extension of time to amend expert report was not an abuse of discretion where any purported accident or mistake was not identified); 
In re Collom
, 62 S.W.3d at 930 (finding that because the expert report was deficient and the failure was not the result of accident or mistake, the trial court was required to dismiss the lawsuit); 
Hightower v. Saxton
, 54 S.W.3d 380 (Tex.App.--Waco 2001, no pet.) (suggesting defects in an expert report can be cured by seeking subsection (g) grace period); 
Gutierrez v. Waller
, 50 S.W.3d 61, 65-66 (Tex.App.--Corpus Christi 2001, pet. granted) (finding discretion was abused in denying motion for 30-day grace period to cure defective report where testimony as to mistake was not controverted).  We also note that relator does not challenge the trial court’s finding that the failure to comply with the deadline was not the result of conscious indifference, but was the result of an accident or a mistake.  Thus, that issue is not before us and we express no opinion on it.

Thus, we conclude the trial court did not abuse its discretion in granting a 30-day grace period, nor did it have a ministerial duty to dismiss the Yorks’ complaint with prejudice.  Thus, relator is not entitled to mandamus relief and her petition must be, and is, denied. 

John T. Boyd

Senior Justice



Reavis, J., concurs.







Publish.

FOOTNOTES
1:John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. 


2:Contrary to the parties here, in 
Blumenthal 
the parties agreed that subsection (g) was applicable.
  
The court addressed the issue because it was raised by the dissent.  
See Blumenthal
, 59 S.W.3d at 398.


