
 



 
 



NUMBERS 13-05-204-CV and 13-05-205-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG

 

ARMANDO RAMOS, SR., ET AL.,				        Appellants,

v. 

DR. IAN RICHARDSON AND
VALLEY BAPTIST MEDICAL CENTER,				Appellees.

 
 
On appeal from the 404th District Court 
of Cameron County, Texas

 

MEMORANDUM OPINION


Before Justice Yañez, Rodriguez, and Vela

Memorandum Opinion by Justice Vela



 
	This is an appeal from a trial court order granting motions to dismiss in favor of Ian
Richardson, M.D. and Valley Baptist Medical Center, appellees, and against appellants,
Armando Ramos, Armando Ramos, Jr., Laura Ramos, and Gloria Serna, individually, next
of kin, friends and representatives of the estate of Elva Ramos (collectively "appellants" or
"the Ramos Family") in an action for medical malpractice.  Because we find that the Ramos
Family failed to comply with the expert report requirements of section 74.351 of the Texas
Civil Practice and Remedies Code, we find no abuse of discretion and affirm the judgments
of the trial court.							
I.
Background

A.  Claims against Valley Baptist Medical Center and Dr. Richardson
	The Ramos Family raises three issues on appeal.  We analyze them together
because all issues concern the adequacy of the expert report and the timeliness of the
health care providers' objections filed in response  pursuant to section 74.351 of the Texas
Civil Practice and Remedies Code.  Tex. Civ. Prac. & Rem. Code Ann. § 74.351 (Vernon
Supp. 2007).  Appellants claim that the trial court abused its discretion in granting
appellees' motions to dismiss.  The Ramos Family urges that they properly and timely
complied with section 74.351 and that appellees' objections to the expert report were
untimely both as to adequacy and qualifications.  
B.  Procedural Background
	On January 7, 2004, Armando Ramos, an inmate at the Texas Department of
Corrections, filed a pro se lawsuit on behalf of the Ramos Family, alleging that Dr.
Richardson was negligent in the care of Elva Ramos during an emergency room visit to
Valley Baptist and that Valley Baptist was negligent in providing competent medical care,
including properly training medical staff.  The claim is that appellees' negligence caused
the death of Elva Ramos. 
	Both Valley Baptist and Dr. Richardson were served with amended petitions on
January 7, 2005, one year after the suit was filed.  There is nothing in the record to suggest
that either Dr. Richardson or Valley Baptist was served with the original petition.  Dr.
Richardson filed his original answer and a motion to dismiss on January 24, 2005.  His
motion to dismiss was filed within 21 days of service and contained objections to both the
sufficiency of the expert report and the qualifications of the expert.  Valley Baptist filed its
original answer and motion to dismiss on January 25, 2005, eighteen days after service. 
On the same day, Valley Baptist also filed its motion to dismiss, objections to the adequacy
of the Ramos Family's expert report and a challenge to the qualifications of their expert. 
	The Ramos Family urges that the objections to the report were not timely because
they served an expert report on March 29, 2004, a report that included the unsworn
declaration of Chester William Ingram, Jr., a fellow inmate.  Ingram was serving time in the
penitentiary for aggravated kidnapping and his license to practice medicine had been
suspended by the Texas State Board of Medical Examiners on September 17, 1991.  The
filing letter shows that Ingram's report was served by mail on Valley Baptist, but not served
on Dr. Richardson.  However, it was filed approximately ten months before either health
care provider had been served with the lawsuit.  The report was not accompanied by
Ingram's curriculum vitae.


II. 
Standard of Review

	In resolving the issue of whether the trial court's decision to dismiss was proper, we
apply an abuse of discretion standard of review.  Am. Transitional Care Ctrs. of Tex. Inc.
v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001); see also Meyers v. Golden Palms Retirement
& Health Ctrs., Inc., No. 13-06-289, 2007 WL 1500819 at *2 (Tex. App.-Corpus Christi
May 24, 2007, pet. denied) (mem. op.).  Under this standard, we determine whether the
trial court acted arbitrarily or without reference to any guiding rules or principles.  Walker
v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).  We may not reverse a trial court's
discretionary ruling simply because we might have decided it differently.  Id. 
		  				III.		
					Applicable Law

	Section 74.351 of the Texas Civil Practice and Remedies Code requires a claimant
in a health care liability case to file an expert report with curriculum vitae not later than the
120th day after the claim was filed.  Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon
Supp. 2007).  According to the statute, an expert report is "a written report by an expert
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 or
health care provider failed to meet the standards, and the causal relationship between that
failure and the injury, harm, or damages claimed."  Id. § 74.351(r)(6) (Vernon Supp. 2007). 
	An expert must be qualified in order to give an opinion about whether the physician
or health care provider departed from the standard of care.  In order to be qualified, a
physician must be practicing medicine at the time the testimony is given or was practicing
medicine at the time the claim arose, must have knowledge of the accepted standards of
medical care for the diagnosis, care or treatment of the illness, injury or condition involved
in the claim, and must be qualified on the basis of training or experience to offer an expert
opinion regarding those accepted standards of medical care.  Id. § 74.401(a)(1),(2),(3)
(Vernon 2005).
	After an expert report and accompanying curriculum vitae are filed, any health care
provider, whose conduct is implicated in a report, must file and serve any objection to the
sufficiency of the report not later than the 21st day after the date the report is served or all
objections are waived.  Id. § 74.351(a). 
 IV.  
Legal Analysis

A.  Did appellees waive the right to complain about the Ingram report? 
	Our review of the record in this case shows that the trial court did not abuse its
discretion in dismissing the cases in favor of the health care providers.  The Ramos Family
suggests that appellees have waived their rights to complain about the Ingram report
because neither Dr. Richardson nor Valley Baptist timely filed their objections.  We
disagree.  The statute required the Ramos Family to serve the expert report and curriculum
vitae on the defendants within 120 days of filing their claim.  Id. § 74.351(a).  The Ramos
Family did not comply with the statute. 
	 The filing letter and report, sent on March 24, 2004,can not be used to show waiver
on Dr. Richardson's part.  The record does not reflect that Dr. Richardson was served with
the report as he was not named in the March 2004 letter.  The letter was sent only to Valley
Baptist Medical Center and an entity called "Western Litigation Specialist."  Clearly, the
Ramos Family did not meet the requirements of the statute because they did not serve a
report on Dr. Richardson with regard to the care allegedly rendered by him within 120 days
after filing their claim, and they never served Dr. Richardson with a curriculum vitae. 
Further, the Ramos Family never served Dr. Richardson with the original petition and did
not serve him with the amended petition until January 7, 2005, well past the 120 days
allowed by the statute.  Dr. Richardson did not waive his right to object to the adequacy of
Ingram's report. 
	Valley Baptist also did not waive its right to complain about the adequacy of the
Ingram report.  Although a letter and unsworn declaration were purportedly served on
Valley Baptist in March 2004, the hospital was not served with the lawsuit until January 7,
2005.  Again, there was no curriculum vitae served with the March 2004 report.  
	Service of citation is the formal process by which a plaintiff gives a defendant notice
that it has been sued.  Tex. Nat. Res. Conserv. Comm'n  v. Sierra Club, 70 S.W.3d 809,
813 (Tex. 2002).  The statute governing health care liability claims defines a health care
liability claim as "a cause of action against a health care provider or physician."  Tex. Civ.
Prac. & Rem. Code Ann. § 74.001(a)(13) (Vernon 2005).  Valley Baptist should not have
been required to respond and object to a report before it was served with the lawsuit.  The
statute assumes that the report be served on a "party."  Id. § 74.351(a).  If a potential party
were required to submit to the trial court's jurisdiction before being served, it would be
required to waive issues regarding jurisdiction and service requirements.  A defendant
should not be required to waive proper service of process in order to protect its rights under
chapter 74 of the Texas Civil Practice and Remedies Code.  The purpose of the statute is
to reduce frivolous medical malpractice claims.  See Wickware v. Sullivan, 70 S.W.3d 214,
219 (Tex. App.-San Antonio 2001, no pet.).  Requiring a health care provider to respond
to an expert report before being served with a lawsuit would not advance the purpose of
the statute or the rules of civil procedure generally.  
B.  The report was inadequate
	 Because appellees' objections were timely made, the trial court had the discretion
to dismiss the case.  The statute requires appellants to serve a curriculum vitae for each
report.  It is mandatory.  See Pena v. Methodist Healthcare System of San Antonio, Ltd.,
220 S.W.3d 52, 54 n.2 (Tex. App.-San Antonio 2006, no pet.).  The Ramos Family did not
comply.  The defect was properly objected to by both appellees and supports dismissal.
	The trial court also had the discretion to dismiss the cause because the report
offered was not prepared by a qualified expert.  An expert report must be rendered by one
qualified as an expert.  Chisholm v. Maron, 63 S.W.3d 903, 907 (Tex. App.-Amarillo 2001,
no pet.).  In order to be qualified, the report must be prepared by a physician who is
licensed to practice and practicing at the time of the testimony or when the claim arose. 
Tex. Civ. Prac. & Rem. Code Ann. § 74.401(Vernon 2005).  Here, the evidence offered in
appellees' respective motions to dismiss established that Chester William Ingram, the
author of the report, was not a physician as he was not licensed to practice medicine in
Texas.   He was a fellow inmate who had lost his medical license long before the incident
made the basis of the claim at issue.  Appellees established that Ingram was not practicing
medicine at the time the claim arose. 

V. 
Conclusion

	In summary, the trial court did not abuse its discretion in deciding that the case
should be dismissed for failure to present a timely and adequate report, with curriculum
vitae, pursuant to Chapter 74 of the Texas Civil Practice and Remedies Code.  We
overrule all of appellants' issues and affirm the judgments of the trial court.
 
 
 
								ROSE VELA
								Justice

Memorandum Opinion delivered and 
filed this 24th day of April, 2008.
