                             NUMBER 13-09-00350-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

GULF COAST MEDICAL CENTER, LLC,
TONY TODD, CRNA, DAN MADSEN, M.D.
AND SOUTH TEXAS MEDICAL CLINICS, P.A.,                                     Appellants,

                                            v.

JACQUELINE TEMPLE AND MARCUS
BANKS, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF
MARKASIA BANKS, A DECEASED MINOR CHILD,                                      Appellees.


                    On appeal from the 23rd District Court
                         of Wharton County, Texas.


                         MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Garza and Benavides
               Memorandum Opinion by Justice Garza
       Appellants, Gulf Coast Medical Center, LLC (“Gulf Coast”), Tony Todd, CRNA, Dan

Madsen, M.D. and South Texas Medical Clinics, P.A. (“STMC”), challenge the trial court’s

denial of their motions to dismiss the suit brought by appellees, Jacqueline Temple and

Marcus Banks, individually and as representatives of the estate of Markasia Banks, a

deceased minor child. Specifically, appellants argue that the trial court had no discretion

to deny their motions because appellees failed to timely serve an expert medical report.

See TEX . CIV. PRAC . & REM . CODE ANN . § 74.351 (Vernon Supp. 2009). We reverse and
remand.

                                                I. BACKGROUND

          On November 7, 2005, four-year-old Markasia Banks was admitted to Gulf Coast,

a hospital in Wharton, Texas, to undergo a routine adenoidectomy.1                               Dr. Madsen

performed the surgery and Todd assisted. Markasia was discharged from the hospital after

the surgery, but was re-admitted several hours later due to complications. She died later

that day. On November 6, 2007, appellees, Markasia’s parents, filed suit alleging that

appellants were negligent in their care and treatment of Markasia.2

          In March of 2008, each appellant filed a motion to dismiss appellees’ suit, claiming

that (1) appellees were required to file an expert medical report pursuant to section 74.351

of the civil practice and remedies code, but that (2) appellees failed to do so prior to March

5, 2008, which was the deadline for the service of such a report. See id. § 74.351(a)

(stating that a claimant in a health care liability claim shall serve an expert medical report

not later than the 120th day after the date the original petition was filed).

          On March 19, 2008, appellees served an expert report prepared by Dennis R.

Taylor, M.D., stating: (1) what he believed to be the standard of care applicable to each

defendant; (2) that the defendants breached that standard of care; and (3) that “[i]f the

standard of care had been followed, [Markasia’s] death would in reasonable probability not

have occurred and an innocent child would not have died.” In responding to appellants’

motions to dismiss, appellees argued that the case had been abated for sixty days due to

appellants’ failure to provide an authorization form for the release of protected health

information. See id. § 74.052(a) (Vernon 2005). According to appellees, this abatement

caused the 120-day deadline for the filing of an expert medical report to be extended by

sixty days, to May 5, 2008, thereby rendering Dr. Taylor’s report timely. Appellees also


          1
          An adenoidectom y is the surgical rem oval of adenoids, also known as pharyngeal tonsils, which are
collections of lym phoid tissue on the roof and posterior wall of the nasopharynx. IDA G. D O X , ET AL .,
A TTOR NEY ’S ILLU STR ATED M ED IC AL D IC TIO N AR Y A16, T51 (1997).
          2
              Appellees also nam ed Triad Hospitals, Inc. (“Triad”) as a defendant. Triad is not a party to this
appeal.

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argued in their response to appellants’ motions to dismiss that chapter 74 of the civil

practice and remedies code, which includes the expert report requirement, violates the due

process clause of the fourteenth amendment to the United States Constitution and the due

course of law provision of the Texas Constitution. See U.S. CONST . amend. XIV; TEX .

CONST . art. I, § 19.3

        After a hearing, the trial court denied appellants’ motions to dismiss without

explaining its reasoning, and this interlocutory appeal followed. See TEX . CIV. PRAC . &

REM . CODE ANN . § 51.014(a)(9) (Vernon 2008) (permitting appeal of interlocutory order

denying all or part of a motion to dismiss for failure to serve an expert report in a health

care liability claim). On appeal, appellants urge by six issues that the trial court erred by

denying their motions to dismiss.4 Specifically, they argue: (1) appellees were required

to serve an expert medical report; (2) appellees failed to timely serve such a report; (3)

appellees’ failure to comply with the statutory medical authorization requirement did not toll

or extend the expert report deadline; (4) the expert report eventually served by appellees

was inadequate; (5) the expert report requirements are valid under the United States and

Texas Constitutions; and (6) appellees are not entitled to a thirty-day extension of time in

which to file a compliant expert report.

                                           II. STANDARD OF REVIEW

        We review a trial court’s order denying a motion to dismiss for failure to comply with

the expert report requirement under an abuse of discretion standard. NCED Mental


        3
            Appellees m ade the following colorful argum ent in their response to appellants’ m otions to dism iss:

        It is a well known fact that [civil practice and rem edies code chapter] 74 was ram -rodded
        through the Legislature by a right-wing legislator hell bent on denying consum ers and
        com m on people their day in court. The bill’s sponsor is no longer in the Legislature for good
        reason. The Plaintiffs’ position is that this bill will not stand the light of day once it is
        exam ined by im partial Justices. It basically give[s] health care facilities, doctors, and nurses
        the right to kill people and not be held accountable for their actions as it is im possible to
        investigate the claim s and deal with the m any tim e constraints. . . . To deny these Plaintiffs
        their day in Court would be a great travesty and would lead fair-m inded citizens to believe that
        we operate under a Hitler-like or Stalin-like governm ent where due process is denied its
        citizens.
         4
           Separate appellate briefs were filed by (1) Gulf Coast, (2) Todd, and (3) Dr. Madsen and STMC
jointly. Each brief raises substantially the sam e issues.

                                                         3
Health, Inc. v. Kidd, 214 S.W.3d 28, 32 (Tex. App.–El Paso 2006, no pet.) (applying abuse

of discretion standard to trial court’s denial of motion to dismiss); Kendrick v. Garcia, 171

S.W.3d 698, 702 (Tex. App.–Eastland 2005, pet. denied) (same); see Am. Transitional

Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001) (applying abuse of

discretion standard to trial court’s granting of motion to dismiss). A trial court abuses its

discretion if it acts in an arbitrary or unreasonable manner or without reference to any

guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,

241-42 (Tex. 1985). However, a trial court has no discretion in determining what the law

is or in applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992);

Baylor Univ. Med. Ctr. v. Biggs, 237 S.W.3d 909, 916 (Tex. App.–Dallas 2007, pet.

denied). Therefore, when the issues are purely questions of law, we effectively conduct

a de novo review. See Pallares v. Magic Valley Elec. Coop., Inc., 267 S.W.3d 67, 69-70

(Tex. App.–Corpus Christi 2008, pet. ref’d) (applying a de novo standard of review to the

issue of whether chapter 74 is applicable to plaintiff’s claims); see also Johnson v. City of

Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989) (holding that “matters of statutory

construction are questions of law for the court to decide rather than issues of fact”);

Neasbitt v. Warren, 22 S.W.3d 107, 109 (Tex. App.–Fort Worth 2000, no pet.) (stating that

the issue of the expert report requirement’s applicability is a “pure question of law”).

                                       III. DISCUSSION

A.     Health Care Liability Claim

       By their first issue, appellants argue that the claims asserted by appellees are

subject to the expert report requirement of chapter 74 of the civil practice and remedies

code. We must therefore determine whether appellees’ claims are “health care liability

claims” as defined in the statute. See TEX . CIV. PRAC . & REM . CODE ANN . § 74.351(a).

       A “health care liability claim” is defined as:

       a cause of action against a health care provider or physician for treatment,
       lack of treatment, or other claimed departure from accepted standards of
       medical care, or health care, or safety or professional or administrative
       services directly related to health care, which proximately results in injury to
       or death of a claimant, whether the claimant’s claim or cause of action

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       sounds in tort or contract.

Id. § 74.001(a)(13) (Vernon 2005). A “health care provider” is “any person, partnership,

professional association, corporation, facility, or institution duly licensed, certified,

registered, or chartered by the State of Texas to provide health care.”                Id. §

74.001(a)(12)(A). This includes a “health care institution” such as a hospital, as well as

any “employee, independent contractor, or agent” thereof.          Id. § 74.001(a)(11)(G),

(a)(12)(A)(vii), (a)(12)(B)(ii).

       Appellees concede that Gulf Coast, Dr. Madsen, and STMC are “health care

providers,” but argue that “there is no evidence in the record that Todd was a registered

nurse at the time of the events giving rise to this case.” Appellees do not dispute, however,

that Todd was an “employee, independent contractor, or agent” of Gulf Coast and/or

STMC. See id. § 74.001(a)(12)(B)(ii). We therefore conclude that Todd is a “health care

provider” under the statutory definition.

       We next turn to the specific nature of appellees’ claims. In their first amended

petition, appellees claimed that Dr. Madsen was negligent in:

       a.      Failing to recognize that the deceased child should never have been
               discharged so quickly after the surgery;

       b.      Failing to properly supervise the CRNA, [Tony Todd];

       c.      Failing to monitor the deceased child’s condition; and in

       d.      Failing to treat the deceased child’s condition properly.

       Appellees claimed that Todd was negligent in:

       a.      Failing to supervise the administration of the drugs used to put the
               child to sleep;

       b.      Failing to ascertain the fact that the child should not have been
               discharged so quickly;

       c.      Failure to give the proper drugs in the correct amount of dosage;

       d.      Failure to monitor the deceased child’s condition; and in

       e.      Failure to treat the deceased child’s condition properly.

       Finally, appellees claimed that Gulf Coast and STMC were negligent in:


                                              5
       a.     Failure to properly supervise their employees;

       b.     Failure to properly supervise the administration of the drugs used to
              put the child to sleep;

       c.     Discharging the deceased child long before it was safe;

       d.     Abandoning the deceased child;

       e.     Failure to monitor the deceased child’s condition;

       f.     Failure to treat the deceased child’s condition properly; and in

       g.     Failure to provide the medical nursing care reasonably required for
              the deceased child’s condition.

       All of the claims made against appellants, including those alleging negligent

supervision, involve alleged “departure[s] from accepted standards of medical care, or

health care, or safety or professional or administrative services directly related to health

care.” See id. § 74.001(a)(13); Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842,

848 (Tex. 2005) (noting that a cause of action alleges a departure from accepted standards

of medical care or health care only if the act or omission complained of is “an inseparable

part of the rendition of medical services”); Ponce v. El Paso Healthcare Sys. Ltd., 55

S.W.3d 34, 39 (Tex. App.–El Paso 2001, pet. denied) (noting that “the training and

supervision of occupational therapists to provide the required care is necessarily governed

by an acceptable standard of medical care, health care, or safety”).

       Appellees argue that no expert testimony would be needed to prove their claims at

trial, and therefore, that the expert report requirement should not apply to those claims.

We disagree. While we may consider whether expert testimony is necessary to prove a

claim in determining whether a claim is a “health care liability claim,” see Diversicare, 185

S.W.3d at 851, this is only one factor we take into account when making that

determination. In this case, the claims made by appellees are clearly subject to the

requirements of chapter 74 under the plain language of the statute, and so we need not

consider whether or not expert testimony would in fact be necessary to prove those claims

at trial. See id.; Hunsucker v. Fustok, 238 S.W.3d 421, 427 (Tex. App.–Houston [1st. Dist.]

2007, no pet.) (“[E]xpert testimony may or may not be necessary at trial but . . . the expert

                                             6
report is always necessary at the discovery phase for a health care liability claim even to

proceed to trial.”) (citing Murphy v. Russell, 167 S.W.3d 835, 838-39 (Tex. 2005))

(emphasis in original).

       We conclude that appellees’ claims against all appellants are “health care liability

claims” under the statutory definition.      See TEX . CIV. PRAC . & REM . CODE ANN . §

74.001(a)(13). Therefore, the expert report requirement applied to these claims. See id.

§ 74.351. We sustain appellants’ first issue.

B.     Timeliness of the Report

       By their second issue, appellants contend that the trial court erred in denying their

motions to dismiss because appellees failed to serve an expert medical report within 120

days of filing suit. See id. § 74.351(a). By their third issue, appellants argue that the 120-

day deadline for filing such a report was not tolled or extended due to appellees’ failure to

provide appellants with required pre-suit notice and medical authorization forms. See id.

§§ 74.051(a) (Vernon 2005), 74.052. We agree.

       Section 74.051(a) of the civil practice and remedies code provides:

       Any person or his authorized agent asserting a health care liability claim shall
       give written notice of such claim by certified mail, return receipt requested,
       to each physician or health care provider against whom such claim is being
       made at least 60 days before the filing of a suit in any court of this state
       based upon a health care liability claim. The notice must be accompanied
       by the authorization form for release of protected health information as
       required under Section 74.052.

Id. § 74.051. Section 74.052(a) provides as follows:

       Notice of a health care claim under Section 74.051 must be accompanied by
       a medical authorization in the form specified by this section. Failure to
       provide this authorization along with the notice of health care claim shall
       abate all further proceedings against the physician or health care provider
       receiving the notice until 60 days following receipt by the physician or health
       care provider of the required authorization.

Id. § 74.052(a) (emphasis added).

       Noting that appellees had failed to comply with the notice and authorization

requirements, Todd filed a notice of abatement on February 1, 2008, stating in part that “all

further proceedings against this defendant in this matter are hereby ABATED for a period


                                              7
of 60 days following receipt of the required authorization by this Defendant.” On appeal,

Todd argues in part that the abatement did not serve to toll or extend the expert report

deadline because the case was abated only as to “proceedings against” Todd, see id.

(emphasis added), and the service of an expert report by appellees would not constitute

such a proceeding. Further, Gulf Coast, Dr. Madsen and STMC note correctly on appeal

that the trial court never entered an order of abatement in this case. They also contend

that any abatement that may have taken effect due to Todd’s notice of abatement did not

apply to them specifically because those appellants “never requested, received, or agreed

to any abatement in the case.” In response, appellees urge that, according to the plain

language of the statute, an abatement takes effect automatically upon a plaintiff’s failure

to provide the required medical authorization. See id. Moreover, appellees contend that

all parties to the suit were “prohibited from proceeding in any manner” during the period of

abatement, and therefore, the “only reasonable conclusion” is that “the 120-day period for

serving [an expert] report was extended by the period of abatement.”

       Assuming, without deciding, that (1) section 74.052 imposes an abatement

automatically upon the plaintiff’s failure to comply with the authorization requirement, and

(2) such an abatement applies to all parties to the suit, we nevertheless conclude that such

an abatement does not serve to toll or extend the 120-day expert report deadline. See

Emeritus Corp. v. Highsmith, 211 S.W.3d 321, 330 (Tex. App.–San Antonio 2006, pet.

denied); Estate of Regis v. Harris County Hosp. Dist., 208 S.W.3d 64, 69 (Tex.

App.–Houston [14th Dist.] 2006, no pet.); Hagedorn v. Tisdale, 73 S.W.3d 341, 348-49

(Tex. App.–Amarillo 2002, no pet.). In Hagedorn, the parties to a medical liability suit

agreed to a sixty-day abatement order because the plaintiff had not complied with the

notice requirement provided in the predecessor to chapter 74. 73 S.W.3d at 347. The

Amarillo court noted that, although abatement is the proper remedy for failure to comply

with the notice requirement, “some courts have found it permissible for certain actions to

be taken during an abatement, such as the joinder of parties and the dismissal of the

cause of action.” Id. at 347-48 (citing De Checa v. Diagnostic Ctr. Hosp., Inc., 852 S.W.2d

                                             8
935, 938 n.5 (Tex. 1993); United Oil & Minerals, Inc. v. Costilla Energy, Inc., 1 S.W.3d 840,

846 (Tex. App.–Corpus Christi 1999, no pet.)). The court concluded that the abatement

order did not extend the deadline for filing an expert medical report. Id. at 348-49. The

court explained its ruling by noting that the legislature could not have intended to allow

plaintiffs to benefit by their failure to comply with the notice and authorization requirements:

       We are disturbed by the fact that, if an abatement for failure to give the
       required notice under the act automatically extends the deadline for filing the
       medical expert report, a plaintiff would in fact be rewarded with additional
       time for the filing of his report by his failure to comply with the statutory notice
       requirement. In other words, a health care provider would be placed in the
       position of having to choose whether to seek an abatement for the failure of
       the plaintiff to give him the statutorily required 60-day notice or to hold the
       plaintiff to the statutorily required deadline for filing the expert report. We
       cannot believe that the intent of the legislature to discourage frivolous
       lawsuits and encourage settlement of claims would be served by such a
       construction, since the legislature has determined that failing to timely file an
       expert report means that the claim is either frivolous or at best has been
       prematurely brought.

Id. at 348 (citing Am. Transitional Care Ctrs. of Tex. v. Palacios, 46 S.W.3d 873, 878 (Tex.

2001)).

       Appellees rely on Campbell v. Kosarek, 44 S.W.3d 647 (Tex. App.–Dallas 2001, pet.

denied), in arguing that the statutory abatement served to toll the expert report deadline.

In Campbell, the court found that a sixty-day abatement order rendered by the trial court

served to extend the expert medical report deadline by sixty days. Id. at 650. However,

Campbell is readily distinguishable from the instant case because the abatement order

there was entered pursuant to a provision of the insurance code. See id. at 648. The

abatement imposed in Campbell had nothing to do with the notice and authorization

requirements of chapter 74, and we consider the case unpersuasive for that reason.

Instead, we are compelled to follow the more persuasive precedent of Hagedorn, 73

S.W.3d at 348-49, and its progeny and conclude that any abatement caused by appellees’

failure to comply with the statutory notice or authorization requirement did not serve to toll

or extend the deadline for the serving of an expert medical report. See id.; see also

Emeritus Corp., 211 S.W.3d at 330 (following Hagedorn); Estate of Regis, 208 S.W.3d at

69 (same).

                                                9
        We conclude that appellees’ expert report was untimely.5 Appellants’ second and

third issues are sustained.

C.      Constitutionality of Expert Report Requirement

        By their fifth issue, appellants argue that the expert report requirement imposed by

chapter 74 is constitutional under the United States and Texas Constitutions. See U.S.

CONST . amend. XIV; TEX . CONST . art. I, § 19. We agree.

        When reviewing the constitutionality of a statute, we begin with a presumption that

the statute is constitutional. Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003); see TEX .

GOV’T CODE ANN . § 311.021(1) (Vernon 2005). The party challenging the constitutionality

of a statute then bears the burden of demonstrating that it fails to meet constitutional

requirements. Walker, 111 S.W.3d at 66 (citing Spring Branch Indep. Sch. Dist. v. Stamos,

695 S.W.2d 556, 558 (Tex. 1985)).

        Every court that has considered whether the expert report requirement passes

constitutional muster has concluded that it does. See, e.g., Wilson-Everett v. Christus St.

Joseph, 242 S.W.3d 799, 802-804 (Tex. App.–Houston [1st Dist.] 2007, pet. denied)

(section 74.351 does not violate separation of powers provision of Texas Constitution);

Thoyakulathu v. Brennan, 192 S.W.3d 849, 855-56 (Tex. App.–Texarkana 2006, no pet.)

(due process does not require “exceptions [to the expert report requirement] that would

encompass any conceivable complication in order to pass constitutional muster”); Herrera

v. Seton Nw. Hosp., 212 S.W.3d 452, 461-62 (Tex. App.–Austin 2004, no pet.) (section

74.351 does not violate due course of law provision of Texas Constitution); Perry v.

Stanley, 83 S.W.3d 819, 825 (Tex. App.–Texarkana 2003, no pet.) (same); Mocega v.

Urquhart, 79 S.W.3d 61, 64 (Tex. App.–Houston [14th Dist.] 2002, pet. denied)

(predecessor to section 74.351 did not violate open courts provision of Texas Constitution);

Gill v. Russo, 39 S.W.3d 717, 718-19 (Tex. App.–Houston [1st Dist.] 2001, pet. denied)

(same); Schrop v. Baptist Mem’l Health Sys., 5 S.W.3d 727, 736-37 (Tex. App.–San

        5
          Because we find that the expert report was not tim ely filed, we need not address appellants’ fourth
issue arguing that content of the report is inadequate. See T EX . R. A PP . P. 47.1.

                                                     10
Antonio 1999, no pet.) (dismissal of claim due to failure to comply with expert report

requirement, even if claim is meritorious, does not offend due process); Horsley-Layman

v. Angeles, 968 S.W.2d 533, 537 (Tex. App.–Texarkana 1998, no pet.) (overruling

constitutional challenges to cost bond and expert report requirements); see also Etheredge

v. McCarthy, No. 05-05-00164-CV, 2006 Tex. App. LEXIS 5492, at *2-3 (Tex. App.–Dallas

June 27, 2006, no pet.) (mem. op.) (dismissal imposed as a direct result of plaintiff’s failure

to file an expert report in compliance with the statutory deadline was appropriate and did

not violate the due process clause).

       Appellees primarily argue on appeal that the objective of the expert report

requirement is to discourage and dispose of frivolous claims, see Walker, 111 S.W.3d at

66, and, because their claim is not frivolous, the statute is unconstitutional as applied to

them. We recognize that injustice may result when a meritorious claim is dismissed with

prejudice by virtue of a technical deficiency, such as the failure to timely file an expert

medical report in a health care liability claim. However, we are not at liberty to craft

exceptions to the expert report requirement every time the objective of that requirement is

frustrated. See id. (“We do not believe the Constitution requires prior notice that the law

is serious about a clearly stated consequence for failing to comply with its terms.”); see

also Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 520 (Tex. 1995) (quoting

Smith v. Davis, 426 S.W.2d 827, 831 (Tex. 1968)) (“The wisdom or expediency of the law

is the Legislature’s prerogative, not ours.”). Following the precedent of our sister courts,

we conclude that the expert report requirement in chapter 74 of the civil practice and

remedies code does not violate the due process clause of the fourteenth amendment to

the United States Constitution or the due course of law provision of the Texas Constitution.

       Appellants’ fifth issue is sustained.

D.     Entitlement to Thirty-Day Extension

       By their sixth issue, appellants contend that, should we find that appellees failed to

timely comply with the expert medical report requirement, appellees are not entitled to a

thirty-day extension of time to file a compliant expert report. Again, we agree. Section

                                               11
74.351(c) of the civil practice and remedies code provides that “[i]f an expert report has not

been served within the period specified by Subsection (a) because elements of the report

are found deficient, the court may grant one 30-day extension to the claimant in order to

cure the deficiency.” TEX . CIV. PRAC . & REM . CODE ANN . § 74.351(c). We have concluded

that appellees failed to comply with the expert report deadline, but this is not because

elements of an otherwise-timely-filed report were found deficient. Instead, appellees

simply failed to serve any report whatsoever within the 120-day period. Accordingly, the

trial court is without authority to grant appellees a thirty-day extension under section

74.351(c). See id. Appellants’ sixth issue is sustained.

                                      IV. CONCLUSION

       We reverse the judgment of the trial court denying appellants’ motions to dismiss,

and we remand the cause to the trial court to (1) award reasonable attorney’s fees and

costs of court to appellants, and (2) dismiss the suit against appellants with prejudice. See

id. § 74.351(b).




                                                  DORI CONTRERAS GARZA,
                                                  Justice

Delivered and filed the
21st day of January, 2010.




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