July 3, 2009        By Ty Bailey

In In re Columbia Medical Center (http://www.supreme.courts.state.tx.us/historical/2009/jul/060416.pdf) and In re Baylor Medical Center at Garland (http://www.supreme.courts.state.tx.us/historical/2009/jul/060491.pdf), the Court has revamped the method in which a trial court can set aside a jury verdict.  In both of these medical malpractice cases, the respective defendant hospital prevailed at trial.  Then, the trial judges in each case set aside the verdicts by granting each plaintiff’s motion for new trial.  The orders were granted “in the interest of justice” without giving further reasoning.  The defendants each filed a writ of mandamus.  The Dallas Court of Appeals denied the writs.  The Supreme Court, however, conditionally granted relief in both cases.  The Court said the trial court must give some basis for its decision to set aside a jury verdict – just as an appellate court must – and sent each case back to the trial court with instructions for the trial court “to specify the reasons it refused to enter judgment on the jury verdict…”  In both cases, four justices dissented (http://www.supreme.courts.state.tx.us/historical/2009/jul/060416d.pdf) complaining that the majority was crafting a new procedural rule by judicial fiat.

In Hernandez v. Ebrom (http://www.supreme.courts.state.tx.us/historical/2009/jul/070240.pdf), the Court issued a lengthy opinion on the issue of whether a health care provider can appeal the denial of a motion to dismiss after judgment is entered, if the provider did not file an interlocutory appeal.  The Court held that a provider’s decision to forego an interlocutory appeal does not foreclose the ability to appeal the trial court’s denial when the plaintiff later nonsuits before trial.  Three justices dissented (http://www.supreme.courts.state.tx.us/historical/2009/jul/070240d.pdf) and wrote that because one of the Legislature’s goals with implementing the interlocutory appeal was to dispense with frivolous cases quickly, a health care provider waives the right to later appeal a trial court’s decision if he does not immediately appeal.

May 15, 2009              By Ty Bailey

Today, the Texas Supreme Court issued a new opinion dealing with Chapter 74 of the Texas Civil Practice and Remedies Code, the statute governing medical malpractice cases in Texas.  Under Chapter 74, a plaintiff has 120 days to file an expert report against each named defendant.  The failure to file an expert report results in a dismissal of the claims, as well as the awarding of attorneys’ fees and costs as a sanction for failing to comply with the requirement.  In Crites v. Collins (http://www.supreme.courts.state.tx.us/historical/2009/may/070315.pdf), the plaintiffs failed to file an expert report within the 120-day deadline.  However, they voluntarily nonsuited Dr. Crites at the 134-day mark.  The day after the nonsuit was filed with the court, Dr. Crites filed a motion to dismiss and motion for costs seeking to recover his attorneys’ fees.  Two weeks later, the trial court signed an order dismissing the case pursuant to the previously-filed notice of nonsuit filed by the plaintiffs.  Over a month later, the trial court conducted a hearing on Dr. Crites’ motion to dismiss.  The court denied the request for attorneys’ fees on the basis that the case had previously been nonsuited by the plaintiffs.  Dr. Crites then appealed the denial of his motion.  The Dallas Court of Appeals affirmed the trial court’s decision.  In a per curiam opinion, the Texas Supreme Court reversed the court of appeals.  Despite the fact that the nonsuit was filed prior to the motion for sanctions and is effective upon filing, the Court held that Chapter 74 does not allow a plaintiff to avoid sanctions by voluntarily nonsuiting the case.  According to the Court, “…a motion for sanctions under…Chapter 74 survives a nonsuit, regardless of whether the movant brings the motion before or after the nonsuit, provided the motion is filed within the trial court’s plenary jurisdiction.”

This opinion will certainly give plaintiffs’ attorneys pause before they file a lawsuit without having an expert report already in hand.

January 27, 2009                     By Ty Bailey

In Badiga v. Lopez (http://www.supreme.courts.state.tx.us/historical/2009/jan/050801.pdf), the Court held that a defendant health care provider can file an immediate, interlocutory appeal when a trial court denies a motion to dismiss (and grants a 30-day extension for the plaintiff), if the plaintiff fails to provide an expert report within the 120-day deadline.  This opinion clears up the apparent discrepancy in section 51 of the Civil Practice and Remedies Code regarding the right to interlocutory appeals.  Specifically, section 51 provides that a defendant may file an interlocutory appeal of a trial court’s denial of a motion to dismiss, but it prohibits the interlocutory appeal of an order granting a 30-day extension to cure a deficient report.  In the present case, the trial court denied the motion to dismiss and granted the motion for 30-day extension, despite the fact that the plaintiff failed to file an expert report within the statutory deadline.  The defendant argued that he had a right to an interlocutory appeal because the motion to dismiss was denied, but the plaintiff argued that the defendant could not appeal because the motion for extension was granted.  In holding that a right to appeal exists, the Court distinguishes its holding in Ogletree v. Matthews, whereby it held the denial of a motion to dismiss and the granting of an extension to cure a deficient report were inseparable, and therefore, an interlocutory appeal was not permissible.  Because there was not a timely report to “cure,” the Court held that the defendant had the right to appeal the denial of the dismissal immediately.  Interestingly, Justice Brister (joined by Justice Medina) issued a dissenting opinion (http://www.supreme.courts.state.tx.us/historical/2009/jan/050801d.pdf).  He wrote that the Court improperly read a distinction into the statute (“nor report” versus “deficient report”) that did not exist.  That is, he believes section 51 prohibits an appeal of the granting of an extension whether or not the extension was proper.

In In re Mary Louise Watkins, M.D. (http://www.supreme.courts.state.tx.us/historical/2009/jan/060653.pdf), the Court offers the clearest roadmap to date on the Court’s mindset on the issue of whether a report can be so deficient as to constitute no report at all.  After filing a health care liability claim against Dr. Watkins, the plaintiff provided a document “purported to be an expert report” within the 120-day deadline.  The defendant physician objected to the report, and the trial court granted a 30-day extension to cure the report.  The plaintiff provided a new report, and the defendant did not challenge it.  However, the defendant did file both an interlocutory appeal and an original proceeding (writ of mandamus) in the court of appeals seeking to have the case dismissed on the grounds that the initial report was so clearly deficient as to be no report at all.  The appellate court dismissed the interlocutory appeal for lack of jurisdiction and denied the mandamus relief.  The defendant then sought a review of the denial of mandamus relief by the Texas Supreme Court but did not appeal the appellate court’s jurisdictional dismissal of the interlocutory appeal.  Justice Brister’s majority opinion affirmed the appellate court’s denial of mandamus relief on the basis that an interlocutory appeal is available – therefore, mandamus is not necessary – if no report was served.  The Court basically said to the defendant, you picked the wrong vehicle to get here.  The defendant could have pursued the interlocutory appeal and was mistaken to appeal only the denial of mandamus relief.  However, the illuminating part of the decision is the language used in the three concurring opinions.  Each of the concurrences agrees with the denial of mandamus relief, but each also addresses the sufficiency (or the lack thereof) of the original “report.”  Justice Johnson (http://www.supreme.courts.state.tx.us/historical/2009/jan/060653c2.pdf) writes, “The document referred to in this case as an expert report is not a deficient statutory expert report; it is not a statutory expert report at all.”  [UPDATE: Justice Johnson withdrew his concurrence and issued a new concurring opinion on May 1, 2009 (http://www.supreme.courts.state.tx.us/historical/2009/may/060653c2.ri.pdf)].  Justice Willet (http://www.supreme.courts.state.tx.us/historical/2009/jan/060653c3.pdf) writes, “I agree with Justice Johnson that since the ‘report’ in this case was ‘not a statutory report at all.’ Dr. Watkins was entitled to immediately appeal the trial court’s refusal to dismiss the lawsuit against her…Given the startling frequency of ‘no report vs. deficient report’ cases, I regret that Dr. Watkins’ failure to appeal the court of appeals’ erroneous dismissal prevents us from squarely (and finally) deciding whether this is a deficient-report case (where an extension is discretionary) or a no-report case (where dismissal is mandatory.  I believe it is the latter.”  Finally, in a third concurrence Chief Justice Jefferson (joined by Justice O’Neill) (http://www.supreme.courts.state.tx.us/historical/2009/jan/060653c1.pdf) issued a one-paragraph opinion that quotes from the report in question.  The tone of this concurrence indicates Justices Jefferson and O’Neill would find the report merely deficient but not so lacking as to be “no report at all.”