                                    NO. 07-02-0275-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL E

                                  SEPTEMBER 20, 2002

                          ______________________________


                               IN RE OLIVIA MORRIS, M.D.


                        _________________________________


Before REAVIS and JOHNSON, JJ, and BOYD, SJ.1


       In this original proceeding, relator Olivia Morris, M.D., asks us to mandamus the

Honorable David Gleason, Judge of the 47th District Court of Potter County, Texas. The

action arises out of an underlying suit filed by Donna and Ralph York, (the Yorks) the real

parties-in-interest, against relator. In the suit, which is a health care liability claim filed

under the Texas Medical Liability and Insurance Improvement Act (the Act), the real

parties-in-interest seek recovery for damages resulting from relator’s alleged negligent acts

in the care and treatment of Donna. See Tex. Rev. Stat. Ann. art. 4590i (Vernon Supp.

1999). The question presented is whether respondent, pursuant to article 4590i §13.01(g)



       1
        John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
of the Texas Revised Civil Statutes, erroneously granted the real parties-in-interest a 30-

day extension of time within which to file an amended expert report.


       Article 4590i requires that not later than the 180th day after the date on which a

health liability claim is filed, the plaintiff must furnish counsel for each defendant physician

one or more expert reports together with a curriculum vitae. Id. §13.01(d). If the claimant

fails to do so within the required time, the statute provides that on the motion of the

affected physician, the court shall enter an order dismissing the cause of action with

prejudice. Id. § 13.01(e)(3).


       Subsection (g) of the statute provides:


       Notwithstanding any other provision of this section, if a claimant has failed
       to comply with a deadline established by Subsection (d) of this section and
       after hearing the court finds that the failure of the claimant or the claimant’s
       attorney was not intentional or the result of conscious indifference but was
       the result of an accident or mistake, the court shall grant a grace period of
       30 days to permit the claimant to comply with that subsection. A motion by
       a claimant for relief under this subsection shall be considered timely if it is
       filed before any hearing on a motion by a defendant under Subsection (e) of
       this section.


Tex. Rev. Civ. Stat. Ann. art. 4590i § 13.01(g) (Vernon Supp. 1999).


       Subsection (l) of the statute provides that if, after hearing, it appears to the court that

a tendered report does not represent a good faith effort to comply with the definition of an

expert report contained in subsection (r)(6), the court shall grant a motion seeking

dismissal. As statutorily defined, an expert report means a written report that provides a



                                                2
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 failed to meet

the standards, and the causal relationship between that failure and the injury, harm, or

damages claimed. Id. § 13.01(r)(6).


       The parties do not dispute that the Yorks filed a report from an expert on May 24,

2001, which was within 180 days of the filing of the underlying suit. On February 5, 2002,

relator moved to dismiss the lawsuit on the basis that the report failed to identify the

appropriate standard of care, and that deficiency made the report less than a good faith

effort to comply with the statute. Thus, relator alleged, because the 180-day period had

passed, section 13.01(e) of the statute required the dismissal of the lawsuit with prejudice.


       The Yorks responded to the dismissal motion by denying the report was inadequate

and, in the alternative, asked for an extension of time pursuant to section 13.01(g) of the

statute. The trial court subsequently entered orders granting a 30-day grace period within

which to comply with the statute, and finding that although the submitted expert report was

inadequate under the statute, the failure to file an adequate report was the result of

accident or mistake.


       To be entitled to mandamus relief, relator must show that the trial court clearly

abused its discretion or violated a ministerial duty. Walker v. Packer, 827 S.W.2d 833, 842

(Tex. 1992) (orig. proceeding). An abuse of discretion occurs when the trial court’s

decision is so arbitrary or unreasonable as to amount to a clear and prejudicial error. Id.



                                             3
There must also be no adequate remedy at law, and the cost or delay of having to go

through trial and the appellate process does not render the remedy inadequate. Id. at 842.


       To support her contention that she has no adequate remedy at law and is entitled

to have this court consider her right to mandamus, relator relies upon In re Collom &

Carney Clinic Ass’n, 62 S.W.3d 924 (Tex.App.--Texarkana 2001, no pet.). In that case,

the court held that because the statute expressed a specific purpose of addressing

frivolous claims filed against medical practitioners by requiring dismissal if a proper expert

report was not filed, a remedy by direct appeal was inadequate and mandamus would be

available in a proper case. Id. at 929-30. We agree with that decision and will consider

whether mandamus is available in this case.


       The gist of relator’s complaint is that the 30-day grace period provided for in

subsection (g) only applies in the instance of a failure to timely file an expert report, but

does not apply in instances in which the court determines that the report by an expert,

although timely filed, is inadequate. In support of her position, relator argues that the plain

meaning of the term “deadline” as used in subsection (g) means the latest time by which

something must be done and that interpretation must be applied. Thus, she reasons,

because the 180-day time period for filing an expert report is the only deadline referred to

in subsection (d), the 30-day grace period permitted under subsection (g) can only refer

to instances in which no report was filed. Therefore, she concludes, had the legislature

intended for a grace period to apply to subsection (l) inadequacies, it would have provided

so in the statute.


                                              4
       In American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873

(Tex. 2001), the court pointed out that if “a trial court determines that an expert report does

not meet these statutory requirements and the time for filing a report has passed, it must

then dismiss with prejudice the claims against the defendant who has challenged the

report.” Id. at 877. In that case, the plaintiff had failed to file an expert report within the

180-day period. The trial court granted an extension of time within which to file a report

and a report was filed. Subsequently, the trial court granted the Care Center’s motion to

dismiss on the ground that the filed report was still not adequate. Id. at 876. A majority

of the court of appeals reversed the dismissal on the basis that the amended report was

sufficient to show a good faith effort to comply. Thus, the question before the supreme

court was whether the trial court abused its discretion in dismissing the suit. The high court

held no abuse of discretion was shown, reversed the court of appeals, and affirmed the

dismissal. The court was not faced with the question before us today, namely, whether the

subsection (g) relief is available in instances in which the trial court has found the initial

report inadequate, but also found the failure was not intentional or the result of conscious

indifference, but the result of an accident or mistake.


       In Whitworth v. Blumenthal, 59 S.W.3d 393 (Tex.App.--Dallas 2000, pet. dism’d by

agr.) (en banc), the court addressed the same question as that before us.2 In the face of

a strong dissent, the majority determined that if a report failed to meet the statutory



       2
      Contrary to the parties here, in Blumenthal the parties agreed that subsection (g)
was applicable. The court addressed the issue because it was raised by the dissent. See
Blumenthal, 59 S.W.3d at 398.

                                              5
requirements, by definition, it was not an “expert report.” Id. at 399. Therefore, no “expert

report” had been filed within the 180-day period, which constituted a failure to meet a

deadline set out in subsection (d). Id. That failure triggered consideration of the 30-day

grace period provided for in subsection (g). En route to its conclusion, the majority also

noted the provision in subsection (g) that it applied “notwithstanding any other provision”

of section 13.01. Id. at 398-99. We agree with that reasoning.


       Other courts of appeal have also found, or intimated that subsection (g) is applicable

in situations in which a timely filed expert report fails to meet the statutory requirements.

See Rittmer v. Garza, 65 S.W.3d 718, 724 (Tex.App.--Houston [14th Dist.] 2001, no pet.)

(finding failure to grant extension of time to amend expert report was not an abuse of

discretion where any purported accident or mistake was not identified); In re Collom, 62

S.W.3d at 930 (finding that because the expert report was deficient and the failure was not

the result of accident or mistake, the trial court was required to dismiss the lawsuit);

Hightower v. Saxton, 54 S.W.3d 380 (Tex.App.--Waco 2001, no pet.) (suggesting defects

in an expert report can be cured by seeking subsection (g) grace period); Gutierrez v.

Waller, 50 S.W.3d 61, 65-66 (Tex.App.--Corpus Christi 2001, pet. granted) (finding

discretion was abused in denying motion for 30-day grace period to cure defective report

where testimony as to mistake was not controverted). We also note that relator does not

challenge the trial court’s finding that the failure to comply with the deadline was not the

result of conscious indifference, but was the result of an accident or a mistake. Thus, that

issue is not before us and we express no opinion on it.



                                             6
       Thus, we conclude the trial court did not abuse its discretion in granting a 30-day

grace period, nor did it have a ministerial duty to dismiss the Yorks’ complaint with

prejudice. Thus, relator is not entitled to mandamus relief and her petition must be, and

is, denied.


                                                John T. Boyd
                                                Senior Justice

Reavis, J., concurs.



Publish.




                                            7
                                      NO. 07-02-0275-CV

                                 IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                            PANEL E

                                    SEPTEMBER 20, 2002

                             ______________________________


                                 IN RE OLIVIA MORRIS, M.D.


                           _________________________________


                                   CONCURRING OPINION



Before REAVIS and JOHNSON, JJ, and BOYD, SJ.3


       Although I concur with the decision of the majority that the request for mandamus

relief should be denied, I write separately to explain the reasons why I agree that the relief

sought should be denied without any prejudice to consideration of the applicability of Article

4590i, section 13.01(g) (Vernon Supp. 2002) upon ordinary appeal.




       3
           John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.


                                                8
        Real parties filed their medical malpractice suit on March 3, 2001, and their expert

report on May 24, 2001. Then, on February 5, 2002, relator filed her motion to dismiss the

action contending that the expert report, although timely filed, did not satisfy the

requirements of the Act because it did not identify the appropriate standard of care. In

response, real parties filed an amended expert report on February 16, 2002, followed by

a response to relator’s motion to dismiss and a motion for an extension of time to file

expert reports under section 13.01(g); 4 however, relator did not file a written response to

real parties’ motion for an extension.


       After hearing the two motions and testimony of counsel for real parties at a hearing

on April 19, 2002, the trial court signed an order on April 19, 2002, finding:


       the failure of the claimants or their attorneys to file an expert report in
       compliance with Article 4590i was not intentional or the result of conscience
       indifference, but was the result of an accident or a mistake. . . .


       It is therefore ordered that the Plaintiffs are granted a grace period of 30 days
       from the date of this order to comply with the requirements of Article 4590i,
       Section 13.01 regarding the filing of an expert report.


Then, on April 24, 2002, the trial court signed an order finding that


       1. The expert report of Frank L. Barnes, M.D., dated January 27, 2001, is
       inadequate and does not satisfy the requirements of Tex. Rev. Civ. Stat. Ann.
       art. 4590i.




       4
           Bearing certificate of service date of April 17, 2002.

                                                9
       2. Plaintiffs have filed an amended report of Frank L. Barnes, M.D., dated
       February 16, 2002, and leave is hereby granted for such filing under Tex.
       Rev. Civ. Stat. Ann. art 4590i, §13.01(g). The adequacy of the newly filed
       report is not before the Court at this time and no ruling is made with respect
       thereto.


Although relator did not challenge real parties’ motion for an extension grounded on

accident or mistake by exception, motion, or objection in the trial court, and by her petition

does not challenge the form of the order signed April 19, 2002, or either of the findings by

the trial court of “accident or mistake” in effect, relator’s request for mandamus relief

suggests that the conclusions of accident or mistake are irrelevant.


                                          The Act/Article 4590i


       In response to the medical malpractice insurance crisis, the Legislature enacted the

Medical Liability and Insurance Improvement Act. The stated purpose of the act is “to

improve and modify the system by which health care liability claims are determined” without

unduly restricting a “claimant’s rights any more than necessary to deal with the crisis . . . .”

§ 1.02(b)(3).


       In relevant part, subsection (d) places a burden on the claimant to


       Not later than the later of the 180 th day after the date on which a health care liability claim is
       filed or the last da y of any exten ded period es tablished u nde r Subse ction (f) or (h ) of this
       sec tion, the claim ant shall . . .


                (1) furnish to counsel for each physician or health care provider one or m ore
                expert reports, with a curriculum vitae of each expert listed in the report; or


                (2) voluntarily nonsuit the action against the physician or health care provider.


                                                       10
In order to comply with subsection (d), the claimant must either timely file the expert report5

per the statutory definition or nonsuit the action. Subsection (e) then provides:


       If a c laim ant has failed . . . to com ply with S ubsectio n (d ) of this sectio n within the tim e
       required, the court shall, on the motion of the affected physician . . . enter an order awarding
       as sanction s against the claim ant or the claim ant’s attorney:


                (1) the rea sonable atto rney’s fees and costs of court incurred by that
                defend ant;


                (2) the forfeiture of any cost bond respecting the claimant’s claim against that
                defendant to the extent necessary to pay the award; and


                (3) the dism issal of the action of the claim ant against that defe nda nt with
                prejudice to the claim’s refiling.



The sufficiency of an expert’s report is not tested by special exception under Tex. R. Civ.

P. 91, but instead is reviewed by motion. Subsection (l) provides:


       A court shall grant a m otion challenging the adequacy of any expe rt report only if it appears
       to the court, after he aring, that the repo rt doe s no t repre sen t a good faith effort to com ply with
       the definition of an expert report in Subsection (r)(6) of this section.



                              30 Day Extension Under Section 13.01(g)


       In addition to extensions of time authorized by subsections (f) and (h), subsection (g)

provides:




        5
        Section 13.01(r)(6) defines expert report as 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.

                                                         11
       Notwithstanding any other pro vision of this section, if a claimant has failed to comply with a
       deadline established by Subsection (d) of this section and after hearing the court finds that the
       failure of the claimant or the claim ant’s attorney was not inten tion al or the re sult of conscious
       indifference but was the result of an accident or mistake, the court shall grant a grace period
       of 30 days to permit the claimant to com ply with that subsection. A motion by a claimant for
       relief under this subsection shall be considered timely if it is filed be fore an y hearing on a
       motion by a defendant under Subsection (e) of this section.



Because the Act does not define the terms “accident” or “mistake,” nor address the

distinction between a mistake of law distinguished from a mistake of fact, we are guided by

the ordinary usage of such terms.                  The terms “accident” and “mistake” constitute

conclusions and are not synonymous. As commonly understood, an accident is an

unforseen and unexpected event that occurs independently of any participation by the party

affected by it, and is not the proximate result of the party’s own act. Henry S. Miller

Company v. Evans, 452 S.W.2d 426, 432 (Tex. 1970).


       In contrast however, mistake is an “erroneous mental condition, conception, or

conviction, induced by ignorance, misapprehension, or misunderstanding of the truth, but

without negligence, and resulting in some act or omission done or suffered erroneously by

one or both the parties to a transaction, but without its erroneous character being intended

or known at the time.” Id. Also, a mistake may be a mistake of fact or a mistake of law,

which happens when the actor, having full knowledge of the facts, comes to an erroneous

conclusion as to the legal effect of the facts and is a mistaken opinion or inference arising

from an incorrect exercise of the judgment upon the facts. Blacks Law Dictionary 1001 (6th

ed. 1990). Moreover, although relief may be available for a mistake of fact, it is generally

not available for a mistake of law.                See Payne v. Baldock, 287 S.W.2d 507, 510

(Tex.Civ.App.--Eastland 1956, writ ref’d n.r.e).

                                                       12
       According to Transitional Care v. Palacios, 46 S.W.3d 873, 880 (Tex. 2002), and

Bowie Memorial Hosp. v. Wright, 79 S.W.3d 48, 54 (Tex. 2002), when a challenge to an

expert’s report is sustained, and the 180-day deadline has passed, the trial court is required

to dismiss the suit. However, these two cases are not controlling because they were not

mandamus proceedings with limited records common to original proceedings, but

proceeded as ordinary appeals upon dismissals by the trial court. Moreover, the dismissals

were not required notwithstanding the trial court’s findings of “accident” or “mistake” as

presented here.


       Although the April 19, 2002 order uses the terms “accident” or “mistake” as they

appear in subsection (g), it does not state the facts supporting the trial court’s conclusions

of either or both. Accordingly, I concur with the decision of the majority that relator has not

shown that the trial court violated a ministerial duty or clearly abused its discretion.



                                                   Don H. Reavis
                                                     Justice


Publish.




                                              13
