                                     NO. 07-05-0462-CV

                                IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL E

                                       MARCH 1, 2006

                            ______________________________


                     IN RE COVENANT HEALTH SYSTEM, RELATOR


                          _________________________________


Before REAVIS and CAMPBELL, JJ. and BOYD, S.J.1


                   OPINION ON PETITION FOR WRIT OF MANDAMUS


      Relator Covenant Health System seeks a writ of mandamus to compel the

Honorable Sam Medina, Judge of the 237th District Court of Lubbock County, to dismiss

Mary Borchardt’s medical negligence claim pursuant to section 74.351(b) of the Texas Civil

Practice and Remedies Code. We deny the request for mandamus relief.


      Borchardt filed suit against Covenant and filed two expert reports and curriculum

vitae pursuant to section 74.351(a) of the Code. One report was by a doctor specializing

in family medicine and the other from a legal nurse consultant. Covenant filed a motion to


      1
          John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
dismiss Borchardt’s suit contending she had failed to satisfy the expert reporting

requirements of the statute. Borchardt filed a response asserting the expert reports were

adequate to satisfy the statute and, alternatively, filed a request for a 30-day extension

pursuant to section 74.351(c) should the court find the reports were deficient. Following

a hearing, the trial court signed an order denying Covenant’s motion to dismiss and

granting Borchardt a 30-day extension to cure deficiencies in previously filed expert reports

and to file an additional expert report from a neurosurgeon.


       Covenant contends the trial court abused its discretion in failing to dismiss

Borchardt’s suit because there was no good faith effort to serve an expert report that

satisfied section 74.351(r)(6). Absence of a good faith effort, Covenant argues, required

dismissal with prejudice, and the granting of a 30-day extension was a “clear abuse of

discretion, warranting issuance of a writ of mandamus.” Borchardt responds that a decision

to grant a 30-day extension is not subject to review by mandamus.


                                   Standard of Review


        Mandamus, as distinguished from an ordinary appeal, is an extraordinary remedy

available only in limited circumstances where the trial court violates a duty imposed by law

or clearly abuses its discretion and when there is no other adequate remedy at law. CSR

Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996); Walker v. Packer, 827 S.W.2d 833, 840

(Tex. 1992). The party seeking relief must establish both the absence of an adequate

remedy by appeal and the trial court’s abuse of discretion. See In re Bay Area Citizens

                                             2
Against Lawsuit Abuse, 982 S.W.2d 371, 375 (Tex. 1998); CSR Ltd. v. Link, 925 S.W.2d

591, 596 (Tex. 1996). A court of appeals acts in excess of its writ power when it grants

mandamus relief absent these circumstances. Johnson v. Fourth Court of Appeals, 700

S.W.2d 916, 917 (Tex. 1985). According to In re Bristol-Myers Squibb Co., 975 S.W.2d

601, 605 (Tex. 1998),


       in determining whether mandamus should issue, we cannot plumb the
       subjective reasoning of the trial court. We must focus on the record that was
       before the court and whether the decision was not only arbitrary but also
       amounted “to a clear and prejudicial error of law.”


       A trial court’s ruling on a motion to dismiss a health care liability claim is reviewed

for clear abuse of discretion. See Bowie Memorial Hospital v. Wright, 79 S.W.3d 48, 52

(Tex. 2002); American Transitional Care v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001). See

also Kendrick v. Garcia, 171 S.W.3d 698, 702-03 (Tex.App.–Eastland 2005, pet. filed)

(utilizing the abuse of discretion standard of Palacios to review denial of a motion to dismiss

under section 74.351). A trial court abuses its discretion if it acts in an arbitrary or

unreasonable manner without reference to any guiding rules or principles. Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S.,

106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). There is no abuse, however, simply because a

trial court may decide a matter within its discretion differently than an appellate court. Id.

When reviewing matters committed to the trial court’s discretion, a court of appeals may

not substitute its own judgment for that of the trial court, thus insulating the trial court’s

decision from appellate second guessing. Bowie, 79 S.W.3d at 52.

                                              3
       A relator challenging a trial court’s ruling as an abuse of discretion labors under a

heavy burden. Johnson, 700 S.W.2d at 917. The relator must establish that under the

circumstances of the case, the facts and law permit the trial court to make but one decision.

Id. This determination is essential because mandamus will not issue to control the action

of a lower court in a matter involving the exercise of discretion. Id.


           Relying on Palacios, Covenant contends that if a trial court determines that an

expert report does not meet the requirements of section 74.351(r)(6), it must dismiss the

claim against the defendant with prejudice. Palacios, however, was decided under former

article 4590i, section 13.01,2 which has been codified at section 74.351 of the Texas Civil

Practice and Remedies Code. Among other things, Palacios addressed subsections (l) and

(r)(6) of former section 13.01, whereas section 74.351(c) provides:


       If 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.


(Emphasis added). In its petition for writ of mandamus, Covenant concedes Borchardt’s

expert reports were “deficient” in two respects.




       2
           See Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 1, 1995 Tex. Gen. Laws 985.

                                              4
       In construing the current statute, our objective is to give effect to legislative intent.

Continental Cas. Ins. Co. v. Functional Restoration Associates, 19 S.W.3d 393, 398 (Tex.

2000). In our analysis, we consider the plain and ordinary meaning of the statute’s words

and examine the entire statute, not only the questioned sections. Tex. Gov’t Code Ann. §

311.011(a) (Vernon 2005); Fitzgerald v. Advanced Spine Fixation Systems, Inc., 996

S.W.2d 864, 865 (Tex. 1999). Further, it is a rule of statutory construction that every word

of a statute must be presumed to have been used for a purpose and every word excluded

presumed to have been excluded for a purpose. See Laidlaw Waste Systems (Dallas), Inc.

v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995); Walter v. City of Georgetown, 86

S.W.3d 249, 255 (Tex.App.--Austin 2002, pet. denied).


       If an expert report has not been timely served, section 74.351(b) provides that upon

the health care provider’s motion, the trial court shall award attorney fees and costs and

dismiss the claim with prejudice.3 However, the Legislature expressly provided that

dismissal of the suit is “subject to Subsection (c),” which authorizes the trial court to grant

one 30-day extension to cure a deficient expert report.4




       3
      The term ”shall” imposes a duty and is mandatory. Tex. Gov’t Code Ann. §
311.016(2). See also Harris County Appraisal Dist. v. Consolidated Capital Properties, 795
S.W.2d 39, 41 (Tex.App.--Amarillo 1990, writ denied).
       4
        Section 51.014(a)(9) of the Code provides that an interlocutory appeal may not be
taken from an order granting an extension of time. Added by Act of June 2, 2003, 78th
Leg., R.S., ch. 204, § 1.03, 2003 Tex. Gen. Laws 849.

                                               5
        The relief a court grants under subsection (b) is always “subject to Subsection (c).”

See Academy of Oriental Medicine, L.L.C. v. Andra, 173 S.W.3d 184, 188 (Tex.App.–Austin

2005, no pet.); Natural Gas Pipeline Co. of America v. Law, 65 S.W.3d 121, 126 (Tex.App.-

-Amarillo 2001, pet. denied) (holding that the words “subject to” mean “subordinate to,”

“subservient to,” or “limited by”). The term “may” as used in subsection (c) vests the trial

court with discretion to grant a 30-day extension. See Tex. Gov’t Code Ann. § 311.016(1).

See also Hardy v. Marsh, 170 S.W.3d 865, 870-71 (Tex.App.–Texarkana 2005, no pet.)

(construing “may” in section 74.351(c) as vesting the trial court with discretion to grant an

extension).


       Unlike the former statute, the Legislature omitted from subsection (c) terms such

as “good cause,” “accident,” or “mistake” in vesting the trial court with discretion to grant

an extension. Thus, Covenant has failed to demonstrate a clear abuse of discretion by the

trial court in granting Borchardt a 30-day extension and denying its motion to dismiss.


       Additionally, Covenant has not satisfied the second prong for entitlement to

mandamus relief by establishing it has no adequate remedy at law. As Borchardt points

out, Covenant filed a second motion to dismiss challenging the “cured” expert reports that

is still pending in the trial court. Should Covenant obtain a favorable ruling, the case is

subject to dismissal with prejudice.     We conclude Covenant has not demonstrated

entitlement to mandamus relief.




                                             6
      We have not overlooked other issues raised by Covenant. However, we are not

authorized to render advisory opinions on issues not necessary to final disposition of this

proceeding. See Tex. R. App. P. 47.1; Valley Baptist Medical Center v. Gonzalez, 33

S.W.3d 821, 822 (Tex. 2000).


      Accordingly, the petition for writ of mandamus is denied.



                                         Don H. Reavis
                                           Justice




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