           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


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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.




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                                             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



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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


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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,

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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


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       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.




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