In Re Watkins
In Re Watkins
Opinion of the Court
delivered the opinion of the Court,
Gary Jones filed this suit against Dr. Mary Louise Watkins, alleging she injured his eye in the course of treating a lesion on his face. Within 120 days of filing, he served what he purported to be an expert report.
Dr. Watkins then filed an interlocutory appeal and an original proceeding in the court of appeals asserting the trial court abused its discretion in granting an extension, and seeking an order of dismissal. The court of appeals dismissed the interlocutory appeal for want of jurisdiction and denied mandamus relief.
We hold we cannot. The separate writings join issue again today on the question whether the item served was a deficient report or no report at all. But here it does not matter. If no report was served, interlocutory appeal was available,
Accordingly, the petition for mandamus is denied.
Chief Justice JEFFERSON filed a concurring opinion, in which Justice O’NEILL joined.
. See Tex. Civ. Prac. & Rem.Code § 74.351(a).
. See id. § 74.35 l(r)(6); Am. Transitional Care Ctrs. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001) (holding report must disclose the treatment challenged and the reasons claims are meritorious to constitute a good-faith effort).
. See Tex. Civ. Prac. & Rem.Code § 74.351(c); see also id. § 74.351(Z) (providing motion to dismiss should be granted if “the report does not represent an objective good faith effort to
. Badiga v. Lopez, 274 S.W.3d 681, 683 (Tex. 2009).
. Tex. Civ. Prac. & Rem.Code § 51.014(a)(9); see Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex. 2007).
. See In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex. 2008).
. Tex.R.App. P. 52.8(d).
Concurring Opinion
joined by Justice O’NEILL, concurring.
I join the Court’s opinion but write separately to elaborate upon the report that was served in this case. The report was written by a physician specializing in treatment of the eyes. He states that he treated Jones for injuries sustained after acetic acid was splashed into Jones’s right eye during a procedure at Dr. Watkins’s office for a facial lesion. The report notes that Jones suffered an epithelial defect and corneal stromal scar, and it discusses the “high likelihood of permanent scarring” Jones faced. It describes a course of treatment with the eye specialist (including a separate visit to a cornea specialist), and concludes that while Jones’s situation was stable, he suffered a corneal scar in the right eye.
concurring.
I withdraw my concurring opinion delivered January 23, 2009, and substitute the following in its place.
In regard to a health care liability claim, “Expert report” means 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. Crv. PRAC. & Rem.Code § 74.351(r)(6). The definition requires that for a document to qualify as a statutory expert report, it must demonstrate three things: (1)
In Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex. 2007), the Court held that if a deficient report was served, an extension order — even when combined with a motion to dismiss — was not subject to interlocutory appeal. In Ogletree, the trial court determined that the report was deficient, denied defendant’s motion to dismiss, and granted an extension to cure the report. Id. at 318. The report was not accompanied by a curriculum vitae and was allegedly deficient because its author was a radiologist and not qualified to render legally valid opinions about the standard of care applicable to the urologist defendant. Id. But there, the report demonstrated a physician, albeit one with different medical specialization from the defendant, held and expressed opinions that the defendant violated standards of care and caused damage to the plaintiff. The Court referred to the report as deficient. Id. at 321.
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. While the document is authored by a physician, it does not show that as of the date of the report the author held any opinion as to (1) applicable standards of care for the treatment in question, (2) the manner in which care rendered by the defendant physician faded to meet the standards, or (3) the causal relationship between that failure and the harm claimed.
The report before us does not purport to have any relationship to a health care liability or malpractice case. As the trial judge noted, the document is no more than a status report. In it, the author gives the history taken from the plaintiff that acetic acid “intended for a facial lesion splashed into his right eye,” sets out physical findings from examinations, reports the plaintiffs condition as stable, and gives recommendations for future treatment and a prognosis.
The Court said in Ogletree that “[i] f no report is served within the 120 day deadline provided by 74.351(a), the Legislature denied trial courts the discretion to deny motions to dismiss or grant extensions, and a trial court’s refusal to dismiss may be immediately appealed.” 262 S.W.3d at 319-20 (emphasis added); see Tex. Crv. PRAC. & Rem.Code § 74.351(b) (stating that a trial court “shall” dismiss a claim when expert reports are not served within 120 days); id. § 51.014(a)(9) (authorizing interlocutory appeal of the denial of a motion to dismiss filed under section 74.351(b)). The Court has followed through on our statement in Ogletree by holding that when no report is served, but a trial court denies a motion to dismiss and grants an extension to cure, an interlocutory appeal is available to challenge the denial of the motion to dismiss. Badiga v. Lopez, 274 S.W.3d 681, 683 (Tex. 2009).
The Court is not faced with a deficient report as was the case in Ogletree; the
concurring.
A few days ago we held in Badiga v. Lopez that interlocutory appeal is available if no expert report was served,
The issue is at once recurring and elusive. For the third time in barely a year we encounter an issue that we cannot reach: whether any health-related document, no matter how irrelevant its content, suffices to warrant an unreviewable thirty-day extension. The issue arose originally, but only indirectly, in Ogletree v. Matthews, when the Court noted in passing that medical-expert reports are either absent or deficient,
A few months later in Lewis v. Funder-burk, the Court confronted “an actual sighting of this rare bird, a species that in my view merits extinction, not conservation.”
Unfortunately, as noted above, today’s case has a procedural hurdle that prevents us from reaching the marquee “no report vs. deficient report” issue. In the court of appeals, Dr. Watkins filed a “joint petition for writ of mandamus and interlocutory appeal alleging that the trial court abused its discretion when it denied her motion to dismiss.”
Accordingly, the only question here is whether we should review the order by mandamus, which, as the Court notes, is unnecessary if no report was served because the statute explicitly authorizes interlocutory appeal in such eases. The most interesting issue, proeedurally unreachable, is whether Jones served a deficient report or, as I believe, no report at all. The trial court’s assessment of Jones’s proffered “report” is to the point:
I don’t think it complies with the statute.... I don’t feel that it does meet the standard.... It needs to be in compliance with the statute.... [A]ll that [the document] is saying is reciting when [he] went to the doctor, what the doctor did, then [he] got laser treatment, and then [his] vision improved, but, you know, it wasn’t back to where it was. It’s just a narrative. It’s not an expert’s report as to the standard of care as required by the statute at all, not even close.
We have held that something cannot constitute “an objective good faith effort”
On this point, Jones’s briefing is notable, casting his case as so cut-and-dry that the common-law res ipsa loquitor doctrine ap
Nonetheless, despite the trial court’s own “not even close” determination, despite its express finding that the “report” was “just a narrative” and not an expert report, and despite a statute that mandates dismissal when no report has been served, the trial court granted a thirty-day extension. That is, something lacking every statutory element was nonetheless deemed to satisfy the statutory criteria. As we held in Badiga, section 51.014(a)(9) authorizes an interlocutory appeal from a dismissal-denial when no report has been filed.
Had Dr. Watkins challenged the court of appeals’ dismissal of her interlocutory appeal, this case, like Badiga, would have presented the issue we expressly reserved in Ogletree: whether there can be interlocutory review of a denied dismissal motion when there is no report as opposed to (and note this locution) “a report that implicated a provider’s conduct but was somehow deficient.”
The statute by its terms denies Jones a post-deadline opportunity to supply the elements mandated by section 74.351(c). Jones had such an opportunity; he had exactly 120 days from the time he filed his lawsuit,
If Texas courts adopt a relaxed approach to the mandatory-dismissal statute, rushed claimants’ lawyers facing an imminent 120-day expert-report deadline can rifle through the casefile and submit the first provider-generated document they find — or just copy the entire medical file and stamp “report” atop it — confident that if they can coax an extension from the trial court, it will be bulletproof, and they can procure an actual report later. In fact, the court of appeals’ decision is already being cited as precedent for the notion that bare-bones material like this, however devoid of the statutory elements, can avert dismissal.
I concede that courts, this one included, cannot decree with micrometer-like precision when something falls from deficient to so-deficient-it’s-absent. Each case has its own distinct facts, but judges are not incapable of applying indistinct lines, or at minimum prescribing the outer ones. One bright-line marker seems beyond reasonable objection: when a “report” contains none of the statutorily prescribed contents. There must exist an agreed outer fringe, and the superficial document in this case lies beyond it. The Legislature, aiming to weed out unsupported and inadequately investigated claims, enacted a rigid statute: missed deadlines mean dismissed claims. If a document bears zero resemblance to the statute — containing nothing that makes a report a report — it cannot receive an extension.
I regret we are unable (again) to resolve this issue once and for all. It is no small matter to short-circuit the Legislature’s deadlines for bringing medical-negligence claims by declaring unreviewable a trial court’s decision to judicially amend the statute and excuse any medical-related piece of paper, no matter how untethered to chapter 74’s criteria. Courts should not adopt a “no harm, no foul” approach to statutory violations. Denying interlocutory relief in such cases invites additional flouting of the Legislature’s rules. I remain where I have been: If a report is missing, not just amiss, courts are remiss if they do not dismiss.
All that said, because I believe Dr. Watkins was entitled to bring an interlocutory
. 274 S.W.3d 681, 683 (Tex. 2009).
. 279 S.W.3d at 634 (footnote omitted).
. How else do you describe something that omits all three required statutory elements? Three strikes usually sends you to the dugout, not to first base.
. 279 S.W.3d at 634 (Johnson, J., concurring).
. 192 S.W.3d 672, 674 ("We conclude that a petition for writ of mandamus is the appropriate means to address this complaint; therefore, we dismiss the interlocutoiy appeal ... for want of jurisdiction.”).
. 262 S.W.3d 316, 320 (Tex. 2007).
. Id. at 322 (Willett, J., concurring).
. Id. at 323.
. Id. at 324.
. 253 S.W.3d 204, 209 (Tex. 2008) (Willett, J., concurring).
.Id. at 206 (majority opinion).
. Id. at 208.
. Absent appellate enforcement of chapter 74’s mandatory-dismissal provision in no-report cases, such sightings will doubtless proliferate. If trial courts grant extensions even in no-report cases when dismissal is statutorily required, thus lowering the "threshold over which a claimant must proceed to continue a lawsuit,” Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (per curiam), chapter 74 defendants may soon identify with the seaside residents of Bodega Bay, besieged by avian attacks. The Birds (Universal Pictures 1963).
. Id. at 674.
. Tex. Civ. Prac. & Rem.Code § 74.351(Z).
. Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 879 (Tex. 2001).
. See Tex Civ. Prac. & Rem.Code § 74.351(a).
. 279 S.W.3d at 635 (Johnson, J., concurring).
. 167 S.W.3d 835, 839 (Tex. 2005) (per cu-riam).
. Wade v. Methodist Hosp., No. 01-02-01272-CV, 2004 WL 2749565, at *8 (Tex. App.-Houston [1st Dist.] Dec. 2, 2004, no pet.) (mem. op.).
. Given its disposition, the Court does not address this argument, though as a general rule, res ipsa loquitor is inapplicable in medical-malpractice cases. Palacios, 46 S.W.3d at 880 (citing the predecessor to section 74.201, which strictly limits the doctrine "to the limited classes of cases to which it applied as of August 29, 1977”).
. Badiga v. Lopez, 274 S.W.3d 681, 683 (Tex. 2009).
. Ogletree v. Matthews, 262 S.W.3d 316, 320 n. 2 (Tex. 2007) (emphasis added).
. Lewis v. Funderburk, 253 S.W.3d 204, 211 (Tex. 2008) (Willett, J., concurring).
. See Tex Civ. Peac. & Rem.Code § 74.351(a).
. In re Padilla, 242 S.W.3d 549, 552 (Tex. App.-El Paso 2007, orig. proceeding).
. Funderburk, 253 S.W.3d at 210 (Willett, J„ concurring).
Reference
- Full Case Name
- In Re Mary Louise WATKINS, M.D., Relator
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