
NUMBER 13-00-171-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
___________________________________________________________________

BERTHA GUTIERREZ, A/K/A BEATRICE BARGAS, AND PEDRO
GUTIERREZ, INDIVIDUALLY AND AS REPRESENTATIVE OF THE 
ESTATE OF ANNA GUTIERREZ, DECEASED, Appellants,

v.

GEOFFREY S. WALKER, M.D., HARRY F. GROSS, JR., M.D., 
RENAL PHYSICIANS OF NORTH TEXAS, L.C.; MID-CITIES 
NEPHROLOGY ASSOCIATION, P.A.; D/B/A IRVING DIALYSIS CENTER,
AND MARK MEICHES , M.D. Appellees.
___________________________________________________________________
On appeal from the 44th District Court
of Dallas County, Texas.
___________________________________________________________________
O P I N I O N
Before Justices Dorsey, Rodriguez, and Hill (1)
Opinion by Justice Hill

Bertha Gutierrez, a/k/a Beatrice Bargas, and Pedro Gutierrez, individually and as representative of the estate of Anna
Gutierrez, deceased, appeal from the trial court's order dismissing their medical malpractice action against Geoffrey S.
Walker, M. D.; Renal Physicians of North Texas, L. C.; Mid-Cities Nephrology Association, P. A., d/b/a Irving Dialysis
Center; and Mark Meiches, M. D.  Presenting five issues, appellants contend that:  (1) the trial court abused its discretion
by requiring them to prove that an expert report that they filed under the Medical Liability and Insurance Improvement Act
was made in good faith; (2) there is no evidence, or, alternatively, factually insufficient evidence to support the trial court's
finding that their expert reports did not represent a good-faith effort to comply with the Medical Liability and Insurance
Improvement Act; (3) the trial court erred in dismissing their case without evidence of the culpable mental state required by
the due process clause of the United States Constitution; (4) the trial court erred in refusing to rule upon their request for a
grace period under the Medical Liability and Insurance Improvement Act; and (5) the trial court abused its discretion by
denying their request for a grace period because  appellees did not attempt to controvert appellants' evidence of mistake. 
We reverse and remand for further proceedings because the trial court abused its discretion by denying appellants' request
for a thirty-day grace period in which to file a sufficient expert's report, where there is uncontroverted evidence that the
failure to timely file a sufficient report was due to mistake and was not intentional or the result of conscious indifference.
This medical malpractice case arises out of the death of Anna Gutierrez, a one-day-old infant born to Bertha Gutierrez. 
Article 4590i, section 13.01(d) of the Texas Revised Civil Statutes  requires the timely filing of expert reports for each
physician or health care provider against whom a claim is asserted.  Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(d)
(Vernon Supp. 2001).  Under that section, these reports are due not later than the later of the 180th day after the date on
which the claim was filed or the last day of an extension granted by the trial court for good cause shown or an extension
agreed to in writing by the parties or their counsel that has been filed with the court.  See Tex. Rev. Civ. Stat. Ann. 4590i §
13.01(d) (Vernon 1999).  Appellants sought and obtained such an extension to file the report, based upon their assertion
that they had not yet been able to depose the defendants.  The order for extension provided that all such reports were to be
filed on or before 30 days after January 20, 1999.  Subsequently, appellants, on February 22, 1999, filed expert reports with
respect to Drs. Walker, Goss, and Meiches.  Several months thereafter, appellees filed a joint motion to dismiss appellants'
claims, asserting that the reports filed by the appellants did not represent a good faith effort to comply with the
requirements of article 4590i, section 13.01(r)(6), and that the experts were not qualified as experts under section
13.01(r)(5). See id. § 13.01(r)(5), § 13.01 (r)(6)   In their fifth issue presented on appeal, appellants contend that the trial
court abused its discretion by denying their request for a grace period because appellees did not controvert evidence that
their failure to file an adequate expert report was a mistake.  Appellants sought a thirty-day grace period in the event that
the trial court should find that they had not timely filed the required expert reports.  Article 4590i, section 13.01(g) provides
that the trial court is to grant such a motion if, after hearing, the court finds that the failure of the claimant or the claimant's
attorney to timely comply with the expert report requirement was not intentional or the result of conscious indifference but
was the result of an accident or mistake.  See id. § 13.01(g).
James W. Mills, III, appellants' attorney at trial, testified that this case was the second medical malpractice claim that he
had handled.  He said that the experts' reports contained everything that he had advised them was legally required, and that
they used the same format that he had used in his earlier case.  He indicated that no objections had been posed to his reports
in the earlier case.  Mills also testified that, to the best of his recollection, at the time he did this he was going on what he
believed article 4590i required that he have.  He stated that to the best of his recollection he had not compared the reports
with the actual requirements of the statute. 
On cross-examination, Mills acknowledged that he is board certified in personal injury and civil trial law. He indicated that
he had attended CLE courses, some of which probably included discussions of medical malpractice cases.  He stated that at
the time the suit was filed he was basically familiar with the requirements of article 4590i, including those having to do
with expert reports.  He indicated that he became aware of the requirements either by reviewing the statute or by discussing
it at the time the legislation came about.  While he acknowledged that he would generally read something filed by a defense
attorney in a case, he did not recall reading appellees' response to his prior motion for extension of time. In their response to
appellants' motion for extension of time, the appellees stated that,
[T]he expert report must state that the plaintiff has obtained a written opinion from an expert who has knowledge of the
accepted standards of care for the diagnosis in question and that the acts and omissions of the physician or healthcare
provider were negligent and a proximate cause of the injury claimed.  Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(r)(6)
(Vernon Supp. 1999).  These statutory provisions are mandatory and provide no exceptions except upon agreement of the parties.


The trial court granted appellees' motion to dismiss appellants' claims, thereby 
denying  appellants' motion requesting a thirty-day grace period.  We hold that the trial court abused its discretion in
denying  appellants' motion for a thirty-day grace period because, while appellees presented evidence that appellants'
counsel was basically familiar with the requirements of article 4590i, including expert reports, appellees presented no
evidence that Mills, appellants' attorney, knew the specific requirements of an expert report but failed to file reports that
met those requirements.  See Roberts v. Medical City Dallas Hospital, Inc., et al., 988 S.W.2d 398, 403-04 (Tex.
App.--Texarkana 1999, pet. denied). 
Appellees contend that the trial court did not abuse its discretion in denying appellants a grace period because they had
controverted appellants' evidence that the failure to file adequate expert reports was a mistake.  They refer us to testimony
by Mills that he was aware of the requirements of article 4590i and that he ordinarily would have read documents filed by
the appellees.  They argue that they included the requirements of the statute regarding expert reports in their response to the
appellants' motion for an extension of time to file reports.  While Mills testified that he was basically familiar with the
requirements of article 4590i with respect to expert reports, he also indicated that he was mistaken as to the specific
requirements of article 4590i, section 13.01(r)(6), believing that the reports he filed were in compliance with the statute. 
An "expert report" is defined in article 4590i 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.


Tex. Rev. Civ. Stat. Ann. art. 4590i, § 13.01(r)(6) (Vernon Supp. 1999).
The expert reports filed by appellants were deficient in that they did not set forth the expert's opinions regarding the
applicable standard of care, the manner in which the care rendered failed to meet the standard, nor the causal relationship
between that failure and the injury, harm, or damages claimed. Transitional Care Centers, Inc. v. Palacios, No. 99-1311,
2001 Tex. LEXIS 45 (Tex. May 10, 2001). Instead, the reports merely set forth the treatment afforded to the patient and the
expert's conclusion that, based upon reasonable medical probability, the treatment afforded represented a significant
deviation from standard medical care and that this negligence was a proximate cause of the infant's death.
While appellees, in their response to appellants' motion for extension of time to file expert reports, made reference to the
definition of expert report contained in article 4590i, §13.01(r)(6), they made no mention of the requirement that the report
set forth the expert's opinion as to the standard of care, how the defendant failed to meet the standard, and the causal
relationship between the failure and the injury, harm, or damages claimed.  If the requirements of an expert report were the
same as those reflected in appellees' response, appellants' reports would have met the requirements.
Appellees state in their brief that Mills admitted in his testimony that appellees' counsel had advised him that his expert
reports were wholly inadequate.  When asked if any of the objections to his expert reports were raised prior to the deadline,
Mills testified that he and appellees' counsel had numerous arguments about a lot of different things, but that he did not
recall whether the expert report was one or not.  He did indicate that appellees' counsel told him that he was not happy with
his reports and that appellees' counsel was filing motions for summary judgment as a means of obtaining additional
information, information that Mills testified he thought was over and above the requirements of article 4590i.
The appellees rely upon at least two cases, Knie v. Piscun, 23 S.W.3d 455 (Tex. App.--Amarillo 2000, pet. denied), and
Nguyen v. Kim, 3 S.W.3d 146 (Tex. App.--Houston [14th Dist.] 1999, no pet.).  We find both of these cases to be
distinguishable.  In Knie, the plaintiff failed to timely file any expert report. Knie, 23 S.W.3d at 462.  In seeking a grace
period, Knie asserted that she was unaware of the requirement that she file such a report, while her attorney, whom she
acquired after the deadline had passed, indicated that he had a misunderstanding of the application of section 13.01(a) to
indigents.  Id.at 462-63.  The court held that the trial court did not abuse its discretion in denying the plaintiff a grace
period, where the plaintiff was ignorant of the law, as opposed to making a mistake of law, and where any mistake by her
attorney as to the law did not occur until after the deadline for filing the expert report had passed, and therefore did not
retroactively satisfy the mistake or accident requirement of section 13.01(g).  Id. at 464-65.  In the case at bar, appellants'
counsel was mistaken as to the necessary contents of  an expert report, not ignorant of the requirement that he file one. 
Also, he was employed by appellants and made this mistake prior to the deadline for filing the report.
In Nguyen, the court held that the trial court did not abuse its discretion by denying the plaintiff a grace period, where the
plaintiff failed to file any expert report at all.  Nguyen, 3 S.W.3d at 154.  The court noted that prior to the deadline for filing
the report, defense counsel had written plaintiff's counsel advising of the impending deadline, and that plaintiff's counsel
had responded that he had an expert report, but neither filed it nor provided opposing counsel with a copy of it.  The court
held that this constituted evidence controverting the plaintiff's claim that their failure to file the report was an accident or
mistake, not intentional or the result of conscious indifference.  In the case at bar, there is no evidence that appellees
notified appellants of the deficiencies in their reports, nor that appellants were aware of the deficiencies.  As previously
noted, there is no definite indication that appellees' counsel told appellants' counsel of the deficiencies, and the statement in
the appellees' response to appellants' request for an extension of time to file the reports did not mention the three requisites
of an expert's report that were missing from appellants' reports.  Because we do not accept appellees' contention that Mills'
testimony as to his mistake was controverted, we sustain  appellants' contention in issue five that the trial court abused its
discretion by not granting them a thirty-day grace period.  In view of our determination of this issue, we need not address
the contentions raised by appellants in issues one, two, three, and four.
We reverse the judgment and remand this cause to the trial court for further proceedings. 


______________________________
JOHN HILL,
Senior Justice


Publish .
Tex. R. App. P. 47.3(b).


Opinion delivered and filed
this 14th day of June, 2001.   
1. Senior Justice John Hill assigned to this court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't
Code Ann. § 74.003 (Vernon 1998).
