          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                          NO. 03-02-00544-CV



                                     Julia F. Hernandez, Appellant

                                                      v.

       Veronica K. Piziak, M.D. and Scott & White Memorial Foundation d/b/a Scott &
                            White Memorial Hospital, Appellees


          FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
               NO. 183,231-B, HONORABLE RICK MORRIS, JUDGE PRESIDING




                               MEMORANDUM OPINION


                 Julia F. Hernandez appeals the district court=s dismissal of a medical malpractice lawsuit

against Veronica K. Piziak, M.D. and Scott & White Memorial Foundation d/b/a Scott & White Memorial

Hospital (Aappellees@). In two issues, Ms. Hernandez contends that the district court abused its discretion in

failing to grant her an extension of time to file a supplemental expert report and then in dismissing her suit.

For the reasons that follow, we affirm the district court=s judgment.


                                             BACKGROUND
                 As a result of taking the drug Rezulin in 1997 and 1998 as prescribed for diabetes by Dr.

Piziak, Ms. Hernandez suffered adverse effects. She initially sued Warner Lambert, the manufacturer of

Rezulin. That suit was removed to federal court and transferred to the multidistrict litigation pending in the

Southern District of New York. She then filed this medical malpractice lawsuit in October 2000 against Dr.

Piziak and Scott & White. On April 27, 2001, in support of her allegations and to comply with statutory

requirements, Ms. Hernandez=s attorney filed an expert report prepared by Dr. Robert M. Bernstein and

dated March 8, 2001. See Texas Medical Liability and Insurance Improvement Act, Tex. Rev. Civ. Stat.

Ann. art. 4590i, ' 13.01(d)(1) (West Supp. 2003). The report states as follows:


        My opinion, based on reasonable medical probability, is that Ms. Hernandez= treatment
        was below the standard of care regarding appropriate monitoring of liver function studies
        during the time Ms. Hernandez was taking Rezulin. The reason for this opinion is that the
        manufacturer=s published recommendations regarding liver function monitoring during
        Rezulin therapy were not met. This opinion assumes that the manufacturer=s published
        recommendations were in fact received by Dr. Priziak [sic] at the time they were published
        and disseminated.

        It is also noteworthy that Ms. Hernandez had had chronically abnormal liver function
        studies since at least 1987, and the diagnosis of chronic hepatitis C was not made until late
        1998, after Rezulin therapy had been discontinued.


The report makes no mention of Scott & White.

                 On March 21, 2002, appellees filed a motion to dismiss, asserting that Ms. Hernandez

failed to comply with the Aexpert report@ requirements of section 13.01 of article 4590i. Specifically, the

appellees argued that the report was deficient because it did not state with sufficient specificity: the standard

of care the appellees were required to meet; the manner in which the care rendered failed to meet that

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standard; and the causal relationship between any such failure to meet that standard and the injury, harm,

and damages claimed by Ms. Hernandez.

                 On March 22, 2002, the court clerk notified the parties that the case was to be dismissed

for want of prosecution. In response to the district court=s notice, Ms. Hernandez filed a Motion to Retain,

advising the court of the multidistrict litigation and requesting that the case be retained on the court=s docket

or, in the alternative, that the case be abated. After a hearing on April 5 on all parties= motions, the district

court granted appellees= motion to dismiss. Ms. Hernandez appeals the dismissal, raising two issues:

whether the district court abused its discretion in refusing to grant Ms. Hernandez an extension of time to

cure the inadequacy of Dr. Bernstein=s expert report, and whether appellees waived their right to complain

about the adequacy of the report by delaying the filing of their motion to dismiss.


                                           TIME EXTENSIONS

                 Ms. Hernandez first argues that the trial court erred in denying her motion for an extension

of time under section 13.01(g), because the uncontroverted evidence establishes that the failure to file a

complying report was neither intentional nor the result of conscious indifference. We disagree.

                 The Texas Medical Liability and Insurance Improvement Act sets forth explicit

requirementsCas to substance and timingCfor the filing of expert reports. Within one hundred and eighty

days after filing a health care liability claim, a claimant Amust provide counsel for each physician or health

care provider one or more expert reports.@ Tex. Rev. Civ. Stat. Ann. art. 4590i, ' 13.01(d)(1) (West

Supp. 2003). In this context, an expert report means



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        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. ' 13.01(r)(6).

                 If the claimant fails to comply with the 180-day deadline or to seek an extension of time to

file, after a hearing the court must grant a grace period of 30 days under section 13.01(g) upon a showing

that the claimant or claimant=s attorney has some excuse of accident or mistake, establishing Athat the failure

. . . was not intentional or the result of conscious indifference.@ Id. ' 13.01(g). In the context of section

13.01(g), an accident or mistake is characterized by a person=s inadequate knowledge of the facts or an

Aunexpected happening that precludes compliance with the statute.@ De Leon v. Vela, 70 S.W.3d 194,

201 (Tex. App.CSan Antonio 2001, pet. denied). We review the trial court=s ruling on a motion for

extension of time to file a complying report under an abuse of discretion standard. American Transitional

Care Ctrs. of Texas, Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex. 2001).

                 By filing her report on April 27, 2001, Ms. Hernandez initially complied with the deadlines

specified in section 13.01(d). However, because the report itself was inadequate, we must determine

whether she was entitled to an extension of time to cure the defects in the initial report. Ms. Hernandez

urges that her actions and those of her attorney


        were not intentional or the result of conscious indifference but were a good faith effort to
        meet the requirements of 4590i. If there are any deficiencies in the report regarding the
        causation and damages it was because of accident or mistake on the part of the Plaintiff=s

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        counsel and was not intentional or result of conscious indifference. It was only when
        Defendants moved for dismissal that Plaintiff=s counsel realized that Dr. Bernstein=s report
        was not specific on the issue of causation and damages.


                 Ms. Hernandez=s motion for extension of time stated: AIt appears, upon close review of Dr.

Bernstein=s report, that it does not specifically mention causation and damages. Plaintiff=s counsel originally

thought that it did as Dr. Bernstein was asked to address those issues.@ It went on to state that counsel,

Awhile concentrating on the [multidistrict litigation] issues against the drug manufacturer,@ tried to comply

with the report requirements of 4590i. Ms. Hernandez=s counsel testified at the April 5 hearing that he had

Aseen thousands of [medical expert] reports@ and thought that Dr. Bernstein=s report was adequate when it

was filed. He further testified that he did not look at the report again until the appellees filed their motion to

dismiss. Upon his second review of the report, he Abelieve[d] that the court could rule that the issue of

causation and damages is not specifically stated.@

                 We conclude that the district court did not abuse its discretion in concluding that Ms.

Hernandez was not entitled to an extension under section 13.01(g). Neither Ms. Hernandez=s motion for

extension of time nor the testimony of her counsel at the hearing establishes sufficient facts to demonstrate

Ainadequate knowledge of the facts or an unexpected happening that precludes compliance with the statute.@

De Leon, 70 S.W.3d at 201. Ms. Hernandez=s counsel established only that he perhaps did not pay close

enough attention to Dr. Bernstein=s report when he filed it. He made no showing of any inadequate

knowledge or unexpected event. We conclude, therefore, that Ms. Hernandez failed to allege sufficient

facts of accident or mistake that would require the district court to grant an extension under section



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13.01(g). Accordingly, we hold that the district court did not abuse its discretion in denying Ms.

Hernandez=s request for an extension of time to cure the inadequacy of Dr. Bernstein=s expert report.

Palacios, 46 S.W.3d at 877.


                                                 WAIVER

                 In her second issue, Ms. Hernandez contends that appellees waived their right to complain

about the report by delaying the filing of their motion to dismiss until approximately three hundred days after

Ms. Hernandez filed Dr. Bernstein=s report. Ms. Hernandez rests her argument on Langley v. Jernigan

from our sister court in Waco. 76 S.W.3d 752, 757 (Tex. App.CWaco 2002, pet. filed). The facts in

Langley are distinguishable. In Langley, the defendant had Aconsiderable involvement in discovery,@ filed a

motion for summary judgment on an issue unrelated to the expert report, filed an amended answer that

deleted a reference to the statutory inadequacy of the report, and then finally objected to the report 646

days after the lawsuit was filed. Id. at 757-58. The court held that defendant had waived his right to

complain, concluding that defendant=s conduct Amisled Appellants, which worked an inequity on them.@ Id.

at 758.

                 Unlike the defendant in Langley, appellees did nothing to mislead Ms. Hernandez into

thinking that they would not challenge Dr. Bernstein=s report. Ms. Hernandez produced Dr. Bernstein=s

report to appellees on April 27, 2001. Then, it appears from the record that little or no activity occurred in

the case until March 21, 2002, when appellees filed their motion to dismiss on the grounds that Dr.

Bernstein=s report was inadequate and the court placed the case on the dismissal docket.



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                In any event, other courts do not support the Langley holding. See, e.g., Kidd v. Brenham

State Sch., No. 14-01-00082-CV, slip op. at 5, 2002 Tex. App. LEXIS 5124, at *8-9 (Tex.

App.CHouston [14th Dist.] July 18, 2002, pet. denied); Gonzalez v. El Paso Hosp. Dist., 68 S.W.3d

712, 717 (Tex. App.CEl Paso 2001, no pet.); Chisholm v. Maron, 63 S.W.3d 903, 908 (Tex.

App.CAmarillo 2001, no pet.) (all holding that section 13.01 places no time limitation on challenging expert

report). Accordingly, we hold that appellees did not waive their right to challenge the adequacy of Dr.

Bernstein=s report and overrule Ms. Hernandez=s second issue.

                We decline to address Ms. Hernandez=s constitutional challenges to article 4590i because

Ms. Hernandez, in failing to raise the issues below, did not preserve the challenges for our review. See

Tex. R. App. P. 33.1; Texas Water Comm=n v. Brushy Creek Mun. Util. Dist., 917 S.W.2d 19, 23-24

(Tex. 1996) (to preserve a constitutional challenge for appeal, a party must raise the issue in the

proceedings below). Even assuming that Ms. Hernandez properly preserved the issues, we have

previously addressed them in McGlothlin v. Cullington.            See 989 S.W.2d 449, 452-53 (Tex.

App.CAustin 1999, pet. denied) (expert report requirements of article 4590i do not violate due

process provisions of the United States and Texas Constitutions).


                                            CONCLUSION

                We hold the district court acted within its discretion in dismissing the suit. We further

hold the district court did not err in denying an extension of time in which to file a complying expert

report because the motion requesting an extension failed to allege sufficient facts that the failure to file




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a complying report was the result of Aan accident or mistake.@ Accordingly, we affirm the judgment of

the district court.




                                              __________________________________________

                                              Jan P. Patterson, Justice

Before Justices Kidd, Yeakel and Patterson

Affirmed

Filed: February 6, 2003




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