                             NUMBER 13-09-00495-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


PADRE BEHAVIORAL HEALTH SYSTEM,
LLC, ET AL.,                                                                 Appellants,

                                             v.

LECIA L. CHANEY, ET AL.,                                                      Appellees.


                    On appeal from the 357th District Court
                         of Cameron County, Texas.


                                     OPINION

    Before Chief Justice Valdez and Justices Garza and Benavides
                   Opinion by Chief Justice Valdez

       Appellants, Padre Behavioral Health System, LLC; Padre Behavioral Hospital, in its

assumed and common name; Continuum Padre, LLC; Samuel Ganz, D.O.; and James M.

May, M.D., appeal from the trial court’s denial of motions to dismiss the lawsuit brought by,

Lecia L. Chaney, individually and as independent executrix of the estate of Stuart A.
Chaney, deceased, and as next friend of Elizabeth Chaney and Elliott Chaney, minors; and

Ernie J. Chaney, M.D., individually. By one issue, appellants argue that the trial court erred

in denying their motions to dismiss because appellees failed to serve on appellants an

expert report within 120 days of filing suit. See TEX . CIV . PRAC . & REM . CODE ANN . §

74.351(a) (Vernon Supp. 2009). We affirm.

                                                I. BACKGROUND

        This appeal arises from the death of Stuart as a result of allegedly negligent care

for Stuart’s opioid dependence and the dispensing of excessive prescriptions for treatment

of a painful foot condition.1 Appellees filed their original petition on May 27, 2008,

asserting health care liability claims against Los Ebanos Pharmacy, LLC; Los Ebanos

Pharmacy, in its assumed or common name; Robert J. De La Chica, R. Ph.; Richard J.

Stachowiak, R. Ph.; Price Village Pharmacy, in its assumed or common name; Juan

Humberto Cavazos, R. Ph.; Jesus A. Caquias, M.D.; and Price Village Family Medical

Clinic, Inc.2 Appellants were not joined as parties to the suit until appellees filed their third

amended petition on January 8, 2009.

        The crux of this appeal pertains to the timeliness of appellees’ service of expert

reports on appellants. The record reflects that appellees served appellants with the expert

reports of Cheryé C. Callegan, M.D., and Paul W. Diabel, M.D., on April 16, 2009.

        1
           In appellees’ third am ended petition and in an expert report provided by Cheryé C. Callegan, M.D.,
it was alleged that Padre Behavioral Hospital was negligent in refusing to treat Stuart when he first presented
him self on October 29, 2006. Stuart was later adm itted to the hospital at 8:45 a.m . on October 30, 2006, with
an adm itting diagnosis of opioid dependence. W hile at the hospital and under the care of Drs. Ganz and May,
Stuart was evaluated, and it was observed that Stuart had blue lips, was m um bling, had slurred speech, and
had labored breathing. Stuart was quickly assessed by nurses, who determ ined that Stuart was sim ply going
through withdrawals, and was placed in a room at the hospital. Later, at 5:25 p.m . on October 30, 2006,
Stuart was discovered unresponsive on the bathroom floor in his room . At 6:10 p.m . on the sam e day, Stuart
was pronounced dead of congestive heart failure.


        2
            None of the defendants listed in appellees’ original petition are parties to this appeal.
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Appellants filed numerous objections and motions to dismiss appellees’ claims, alleging,

among other things, that appellees did not timely serve the expert reports of Drs. Callegan

and Diabel within the 120-day period provided by law. See id. § 74.351(b). Specifically,

appellants asserted that the 120-day period began to run from the date appellees filed their

original petition, May 27, 2008, not from the date of appellees’ third amended petition. See

id. § 74.351(a). Therefore, based on appellants’ contention, appellees were required to

serve their expert reports on or about September 24, 2008, a date which preceded

appellants’ addition as a party in the case. The trial court denied appellants’ objections

and motions to dismiss, and this accelerated interlocutory appeal ensued. See TEX . R.

APP. P. 28.1; see also TEX . CIV . PRAC . & REM . CODE ANN . § 51.014(a)(9) (Vernon 2008)

(providing for interlocutory appeal of an order denying all or part of relief sought by a

motion brought under section 74.351(b) of the civil practice and remedies code).

                                  II. STANDARD OF REVIEW

       We review a trial court's decision to deny a motion to dismiss a health care liability

claim under an abuse of discretion standard. See Jernigan v. Langley, 195 S.W.3d 91, 93

(Tex. 2006); see also Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873,

878 (Tex. 2001). A trial court abuses its discretion if it acts in an arbitrary or unreasonable

manner or without reference to any guiding rules or principles. Walker v. Gutierrez, 111

S.W.3d 56, 62 (Tex. 2003); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,

241-42 (Tex. 1985). To the extent resolution of this issue requires interpretation of the

statute, we apply a de novo standard of review. See Pallares v. Magic Valley Elec. Coop.,

267 S.W.3d 67, 69-70 (Tex. App.–Corpus Christi 2008, pet. denied) (citing Buck v. Blum,

130 S.W.3d 285, 290 (Tex. App.–Houston [14th Dist.] 2004, no pet.); Ponce v. El Paso

Healthcare Sys., Ltd., 55 S.W.3d 34, 36 (Tex. App.–El Paso 2001, pet. denied)).
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                                        III. ANALYSIS

       By their sole issue, appellants argue that appellees did not timely serve their expert

reports with the 120-day period prescribed by section 74.351(a); thus, the trial court

abused its discretion in denying appellants’ motions to dismiss. See TEX . CIV. PRAC . &

REM . CODE ANN . § 74.351(a). Specifically, appellants argue that the 120-day period began

when appellees filed their original petition, even though appellants were not named as

parties at that time. See id. According to appellees, the 120-day period began to run when

appellants were first named as parties to the suit in appellees’ third amended petition filed

on January 8, 2009, and therefore, the appellees’ service of their expert reports on April

16, 2009, was well within the 120-day period. See id.

A.     Applicable Law

       1.     Statutory Construction

       The legislature has directed that “[i]n interpreting a statute, a court shall diligently

attempt to ascertain legislative intent and shall consider at all times the old law, the evil,

and the remedy.” TEX . GOV’T CODE ANN . § 312.005 (Vernon 2005). Statutes must be

construed as written, and legislative intent determined, if possible, from their express

terms. Simonson v. Keppard, 225 S.W.3d 868, 879 (Tex. App.–Dallas 2007, no pet.)

(citing Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001)). Chapter 74, in its

entirety, rather than provisions in isolation, must be considered, and meaning given to each

provision consistent with all others. Id.

       Courts presume that the entire statute is to be effective and a just and reasonable

result is intended. Id. “Even if a statute is unambiguous, courts may consider the statute’s

objective; circumstances of its enactment; its legislative history; . . . [and] consequences


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of a particular construction . . . .” Univ. of Tex. Health Sci. Ctr. at Houston v. Gutierrez, 237

S.W.3d 869, 873 (Tex. App.–Houston [1st Dist.] 2007, pet. denied) (citing Simonson, 225

S.W.3d at 880). Any words used or omitted are presumed used and omitted purposefully.

Id. (citing Simonson, 225 S.W.3d at 880; Cameron v. Terrell & Garrett, Inc., 618 S.W.2d

535, 540 (Tex. 1981)). When the legislature enacted chapter 74, it made several findings.

See TEX . CIV. PRAC . & REM . CODE ANN . § 74.001 historical note (Vernon 2005) [Act of June

2, 2003, 78th Leg., R.S., ch. 204, §10.11, 2003 Tex. Gen. Laws 847, 884].                   The

legislature’s findings included: (1) the number of health care liability claims had increased

inordinately since 1995; (2) a medical malpractice crisis existed in Texas; and (3) the crisis

had caused a material adverse effect on the delivery of medical and health care in Texas.

Id. Thus, the legislature enacted chapter 74 to reduce the excessive frequency, severity,

and costs of health care liability claims. Id.; see Gutierrez, 237 S.W.3d at 873 (citing In re

Raja, 216 S.W.3d 404, 406 (Tex. App.–Eastland 2006, pet. denied)).

       2.     Chapter 74 of the Texas Civil Practice and Remedies Code

       The parties do not dispute that appellants are health care providers and that

appellees’ claims are health care liability claims within the context of chapter 74 of the civil

practice and remedies code. See TEX . CIV. PRAC . & REM . CODE ANN . § 74.001(a)(11)-(13)

(Vernon 2005). A plaintiff asserting a health care liability claim must provide each

defendant physician and health care provider an expert report containing the expert's

curriculum vitae and

       a fair summary of the expert's opinions as of the date of the report regarding
       the 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.


                                               5
Id. § 74.351(a), (r)(6); see Palacios, 46 S.W.3d at 877. Specifically, section 74.351(a)

provides that:

              In a health care liability claim, a claimant shall, not later than the 120th
       day after the date the original petition was filed, serve on each party or the
       party’s attorney one or more expert reports, with a curriculum vitae of each
       expert listed in the report for each physician or health care provider against
       whom a liability claim is asserted.

TEX . CIV. PRAC . & REM . CODE ANN . § 74.351(a) (emphasis added); see Fulp v. Miller, 286

S.W.3d 501, 506-07 (Tex. App.–Corpus Christi 2009, no pet.). If claimant fails to serve an

expert report on the defendant physician or health care provider within the period specified

by subsection (a) of section 74.351, then, on the motion of the affected physician or health

care provider, the trial court shall dismiss claimant’s claim with prejudice and award

reasonable attorney’s fees and costs of court to the affected physician or health care

provider. See TEX . CIV. PRAC . & REM . CODE ANN . § 74.351(b). On appeal, appellants do

not challenge the sufficiency of appellees’ expert reports; instead, appellants challenge the

timeliness of appellees’ service of their expert reports under the language of section

74.351(a) governing when such reports should be filed.

B.     Methodist Charlton Medical Center v. Steele

       In arguing that the 120-day period began to run when appellees filed their original

petition, appellants rely heavily on the Dallas Court of Appeals’s reasoning in Methodist

Charlton Medical Center v. Steele, 274 S.W.3d 47, 50-51 (Tex. App.–Dallas 2008, pet.

denied). In Steele, plaintiffs filed suit against several parties on September 21, 2006,

alleging that defendants “failed to promptly assess, triage, and treat” Felicia Steele in the

emergency room, which resulted in Felicia “having permanent neurologic deficits from a

stroke . . . .” Id. at 48. Plaintiffs timely served their expert reports on the parties named


                                               6
in the original petition. Id. Plaintiffs later amended their petition to add Methodist Dallas

Medical Center (“Methodist”) as a defendant and served expert reports on Methodist on

February 14, 2007. Id. Plaintiffs amended their petition a second time, on June 11, 2007,

to add direct claims against all of the defendants for negligent hiring, supervision, training,

and retention. Id. at 49. However, plaintiffs failed to serve expert reports regarding the

newly-added direct claims. Id. Defendants filed motions to dismiss the newly-added direct

claims, alleging that “the trial court was required to dismiss those claims because appellees

failed to serve expert reports addressing the additional causes of action within 120 days

after the original petition was filed.” Id. The trial court denied the motions to dismiss, and

defendants filed an interlocutory appeal. Id.

       In analyzing whether the trial court abused its discretion in denying defendants’

motions to dismiss for failing to timely file expert reports on the newly added direct claims,

the Dallas Court of Appeals engaged in a discussion about the construction of section

74.351(a) and the legislature’s intent in promulgating that section. The Steele court noted

that “[t]he plain language of the statute [section 74.351(a)] requires appellees to serve an

expert report on each physician or health care provider against whom a liability claim is

asserted within 120 days of filing their original petition. The plain language of the statute

also requires such a report for each health care liability claim.” Id. at 50 (emphasis in

original.) The court went on to hold that the trial court was required to dismiss the newly

added direct claims because plaintiffs failed to file an expert report addressing those

claims. Id. In dicta, the court further noted the following in rejecting appellees’ argument

that this interpretation of the statute was contrary to the intent of the legislature:

       The purpose behind section 74.351(a)’s adoption was, among other things,
       to remove unwarranted delay and expense, to accelerate the disposition of

                                              7
       non-meritorious cases, and to give hard-and-fast deadlines for the serving
       of expert reports. The 2003 amendments created a statute-of-limitations-
       type deadline within which expert reports must be served. This strict 120-day
       deadline can lead to seemingly harsh results. Nonetheless, the legislature
       imposed the deadline as part of its effort to reduce excessive frequency . . .
       of health care liability claims.

               The purpose behind the 2005 amendment to section 74.351(a),
       requiring expert reports to be served within 120 days of filing the original
       petition rather than within 120 days of filing a health care liability claim, was
       to clarify the timing of when an expert report is due. The legislative intent is
       that the timing for expert reports be triggered by the filing of the lawsuit. The
       effect of the 2005 amendment not only clarifies the timing of when an expert
       report is due, it also necessarily limits the time for a party to add claims
       without the possibility of dismissal for failing to serve an expert report 120
       days from filing the original petition. Thus, this amendment leads to even
       harsher results than the 2003 amendments. Nevertheless, the deadline
       again serves the legislature’s effort to reduce excessive frequency . . . of
       health care liability claims.

              The goals of accelerating the disposition of non-meritorious cases and
       having hard-and-fast deadlines for service of expert reports, as well as the
       purpose of requiring service of an expert report at all, would be completely
       undermined if, as appellees suggest, a party had only to wait more than 120
       days after filing their petition, amend the petition adding new claims, and
       then avoid having to serve an expert report regarding the amended claims.
       Neither the plain language of section 74.351(a) nor the legislative purpose
       behind it supports such a reading, and we reject appellees’ argument to the
       contrary.

Id. at 50-51 (internal citations and quotations omitted).

       We do not believe the Steele case is persuasive in this matter. First, in Steele, the

court of appeals addressed a situation where plaintiff added new claims against pre-

existing defendants after the 120-day period had passed against those pre-existing

defendants. Thus, the focus of the inquiry in Steele was on the newly added claims, not

on any newly-added parties, as here.         In fact, the Steele court noted that plaintiffs

amended their petition to add the new claims against Methodist, a party that had been

added previously as a party to the suit, 236 days after plaintiffs’ original petition had been

filed. Id. at 49. In the present case, appellees amended their petition to add new claims
                                              8
against appellants, making them new parties to the suit, and timely served the reports

within 120 days of filing their “original petition” specifically asserting liability against

appellants. Further, plaintiffs in Steele failed to serve any expert reports regarding their

newly added claims, and the court of appeals analyzed whether plaintiffs were required to

submit expert reports on the newly added claims and when such reports would be due;

whereas appellees, in the instant case, filed expert reports within 120 days of appellants

being joined as parties to the suit. Id. at 49-51.

C.     Osonma v. Smith

       Appellees, on the other hand, direct us to a case from the San Antonio Court of

Appeals, which recently addressed a situation virtually identical to the case at bar. See

Osonma v. Smith, No. 04-08-00841-CV, 2009 Tex. App. LEXIS 4959, at **3-6 (Tex.

App.–San Antonio July 1, 2009, pet. denied) (mem. op.). In Osonma, plaintiff “filed her

original petition naming as defendants Methodist Hospital, The Hand Center, P.A. d/b/a

The Hand Center of San Antonio, and David W. Person, M.D.” on January 22, 2008. Id.

at *3. However, plaintiff amended her petition on April 3, 2008, adding Timothy Osonma,

M.D., and his employer, IPC, as defendants. Id. Plaintiff subsequently served her expert

reports on Dr. Osonma and IPC on June 2, 2008. Id. On appeal, Dr. Osonma and IPC

argued that plaintiff’s expert reports were untimely served because the 120-day period was

triggered by plaintiff’s filing of her original petition on January 22, 2008. Id. at **3-4. In

concluding that plaintiff’s expert reports were timely served, the Osonma court noted the

following:

               Section 74.351(a)’s requirement that a plaintiff serve an expert report
       explaining each defendant physician or health care provider’s liability within
       120 days from the filing of the original petition does not necessarily refer to
       the first-filed petition in the lawsuit; it refers to the first-filed petition naming
       that defendant physician or health care provider as a party to the lawsuit.
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               Further, we note that adopting Dr. Osonma and IPC’s interpretation
       of the statute would lead to absurd results: after more than 120 days after
       filing a lawsuit even if the statute of limitations period had not expired, a
       plaintiff could never add another physician or health care provider as a
       defendant because she would never be able to timely serve an expert report
       on such a defendant.

Id. at *4. The Osonma court further examined the legislature’s intent in amending section

74.351(a) to substitute the language “the original petition was filed” for “the claim was filed”

by referencing the following bill analysis written by the Civil Practices Committee regarding

the bill amending section 74.351(a):

       Since the passage of H.B. [House Bill] 4 in the 78th Session, there has been
       some confusion regarding the timing of when an expert report is due on a
       medical malpractice case. Some have argued that the report is due 120
       days from the date of the statutory notice letter, instead of 120 days from the
       date of the filing of the original petition. It was the intent of H.B. 4 that the
       report be triggered by the filing of the lawsuit.

Id. at *5 (quoting House Comm. on Civil Practices, Bill Analysis, Tex. H.B. 2645, 79th Leg.,

R.S. (2005)). In reconciling the language contained in section 74.351(a) and the bill

analysis written by the Civil Practices Committee, the Osonma court noted that:

       It appears that the legislature was concerned about arguments that the
       report would be due 120 days from the date of the statutory notice letter; we
       find no support for Dr. Osonma and IPC’s argument that in amending section
       74.351(a), the legislature sought to clarify that the 120-day period was
       triggered by the first-filed petition, even if the defendant physician or health
       care provider was not named as a party in that first-filed petition.

Id. at **5-6. As a result, the Osonma court concluded that the 120-day period began to run

when defendants were first named as parties to the suit, and therefore, plaintiff timely

served defendants with her expert reports. See id. at *6.

D.     Discussion

       We agree with the San Antonio Court of Appeals’ reasoning in Osonma that the

120-day period is triggered by the first-filed petition naming the defendant physician or

health care provider. Accordingly, we hold that the 120-day period in the case at bar

                                              10
began to run when appellants were first named as defendants on January 8, 2009;

therefore, appellees’ April 16, 2009 service of their expert reports on appellants was timely.

       To hold otherwise, as stated by the Osonma court, “would lead to absurd results:

after more than 120 days after filing a lawsuit, even if the statute of limitations period had

not expired, a plaintiff could never add another physician or health care provider as a

defendant because she would never be able to timely serve an expert report on such a

defendant.” Id. at *4. In fact, if we were to conclude, in this case, that the 120-day period

as applied to appellants was triggered by appellees’ original petition filed May 27, 2008,

which was within the applicable two-year limitations period, see TEX . CIV. PRAC . & REM .

CODE ANN . § 74.251(a) (Vernon 2005), then appellees would have been precluded from

joining other responsible parties to the litigation and asserting potentially meritorious claims

that were uncovered later in the discovery process.            We do not believe such an

interpretation was intended by the legislature, and appellants have not directed us to any

relevant authority that the legislature intended as such. See Palacios, 46 S.W.3d at 879

(stating that the purpose of the expert report is to: (1) inform the defendant of the specific

conduct the plaintiff has called into question; and (2) provide a basis for the trial court to

conclude whether the claims have merit); see also Schmidt v. Dubose, 259 S.W.3d 213,

218 (Tex. App.–Beaumont 2008, no pet.) (recognizing the trial court serves as a

gatekeeper with respect to section 74.351(a)’s expert-report requirement and noting that

subsequent expert reports and opinions are governed by the rules of discovery set forth

generally in the rules of civil procedure); Gutierrez, 237 S.W.3d at 873.

       Furthermore, contrary to appellants’ assertions, we do not believe that the impact

of our holding frustrates the legislature’s purpose to “remove unwarranted delay and

expense, to accelerate the disposition of non-meritorious cases, and to give hard-and-fast
                                            11
deadlines for the serving of expert reports” so long as each affected physician or health

care provider, in a health care liability claim, is provided an expert report, delineating the

applicable standard of care, how that standard of care was breached, and how the breach

of the standard of care proximately caused the injuries sustained, within 120 days of the

claimant’s lawsuit against the particular defendant. See TEX . CIV. PRAC . & REM . CODE ANN .

§ 74.351(a), (r)(6); Steele, 274 S.W.3d at 50 (citing Intracare Hosp. N. v. Campbell, 222

S.W.3d 790, 797 (Tex. App.–Houston [1st Dist.] 2007, no pet.)); see also Osonma, 2009

Tex. App. LEXIS 4959, at **4-6. We therefore conclude that the trial court did not abuse

its discretion in denying appellants’ motions to dismiss. See Jernigan, 195 S.W.3d at 93;

see also Palacios, 46 S.W.3d at 878. We overrule appellants’ sole issue on appeal.

                                      IV. CONCLUSION

       Having overruled appellants’ sole issue on appeal, we affirm the judgments of the

trial court denying appellants’ motions to dismiss.




                                                  ROGELIO VALDEZ
                                                  Chief Justice


Delivered and filed the
11th day of March, 2010.




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