Constancio v. Bray

266 S.W.3d 149, 2008 Tex. App. LEXIS 6652, 2008 WL 4093377
CourtCourt of Appeals of Texas
DecidedSeptember 5, 2008
Docket03-06-00583-CV
StatusPublished
Cited by29 cases

This text of 266 S.W.3d 149 (Constancio v. Bray) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Constancio v. Bray, 266 S.W.3d 149, 2008 Tex. App. LEXIS 6652, 2008 WL 4093377 (Tex. Ct. App. 2008).

Opinions

OPINION

G. ALAN WALDROP, Justice.

Pifi Constancio, individually and on behalf of the estate of Ruben Constancio, deceased, appeals the district court’s dismissal of her medical malpractice claims against Dr. James Bray for failure to serve an expert report as required by chapter 74 of the civil practice and remedies code. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351 (West Supp.2008). Constancio raises two issues on appeal: (1) the district court abused its discretion in dismissing her claims because the expert report she served was adequate under chapter 74, and (2) although the district court granted her an extension to amend the expert report to cure deficiencies, the court abused its discretion by only granting her a 7-day extension of the 120-day deadline for serving an expert report rather than the statutorily required 30-day extension period.

We conclude that the expert report in question is deficient and affirm the district court’s finding on that issue. However, we also conclude that the district court erred in granting Constancio an extension to cure the deficiencies in her expert report that did not conform with the requirements of section 74.351. Although we affirm the district court’s finding that Constancy's expert report at issue at the time of the hearing on the motion to dismiss does not satisfy the requirements of section 74.351, the defect is such that it may be curable.1 It appears from the record that the district court may have intended to exercise its discretion to grant Constan-cio the full relief available under the statute with respect to an extension to cure pursuant to section 74.351(c). In light of our opinion that the manner in which the district court granted the extension in this cause did not conform to the statute, we reverse the order of dismissal and remand this cause for the district court to consider — in its discretion — whether to grant Constancio an extension that complies with section 74.351(c) for the purpose of curing the deficiency in her expert report.

Factual and Procedural Background

In December 2003, Constancy’s husband, Ruben, died of cardiorespiratory arrest at Shannon West Texas Memorial Hospital. He had been under the care of Dr. James Bray. On February 3, 2006, Constancy sued Dr. Bray for alleged medical negligence in his care and treatment of Ruben.2 Her original petition alleged that Dr. Bray was negligent in the following respects: “(a) ordering Ativan, morphine and Phenergan to be administered to Ruben Constancio, ... in [the] face of respiratory distress; (b) not coming in to evalu[154]*154ate the patient in [the] face of respiratory distress and deterioration; (c) decreasing the frequency of nursing assessments and vital sign checks in the face of patient’s deterioration and respiratory distress.”

On the same day she filed her original petition — February 3, 2006 — Constancio filed and served the expert report and curriculum vitae of Dr. Steven Hata pursuant to section 74.351 of the civil practice and remedies code setting forth Dr. Hata’s opinions regarding Ruben’s treatment. Dr. Bray filed a motion objecting to the adequacy of this expert report on February 22, 2006, claiming that “Dr. Hata’s report fails to set forth Mr. Constancio’s symptoms and conditions, what the standard of care called for Dr. Bray to do in treating those specific symptoms and conditions, that the applicable standard of care was breached by Dr. Bray in his treatment of Mr. Constancio and that same caused Mr. Constancio’s death.” In response, Constancio claimed that the report was sufficient as written and, in the alternative, requested that the district court grant her “a thirty (30) day extension of the 120-day deadline” in the event the court found the expert report deficient.

On May 10, 2006, 96 days after the original petition was filed, the district court held a hearing on the adequacy of the expert report and found that it was deficient as to causation and the standard of care. At the end of the hearing, the district court announced that it would grant an extension under section 74.351(c) and Constancio would have 30 days from the date of the hearing, or until June 10, 2006, to cure the deficiencies in the expert report. The district court entered an order reflecting this ruling on May 15, 2006.

On May 26, 2006, 112 days after the filing of the original petition, Constancio filed and served an amended expert report and curriculum vitae of Dr. Steven Hata setting forth Dr. Hata’s opinions regarding Ruben’s treatment. Dr. Bray filed a motion to dismiss Constancio’s claims on June 8, 2006, arguing that “the report still fails to identify the standard of care applicable to James Bray, M.D. in treating the decedent, Ruben Constancio and how any breach of the standard of care by James Bray, M.D. in treating the decedent, ... proximately caused the death of Ruben Constancio.” Constancio responded that the report was sufficient as written and, in the alternative, requested that the court give her an “extension until thirty days from June 2, 2006, as provided by 74.351(c).”3 After conducting a hearing on the motion to dismiss on June 14, 2006 — 131 days from the filing of the original petition — the district court sent a letter to the parties announcing that he intended to grant Dr. Bray’s motion to dismiss because the amended expert report “fails to provide an adequate causational connection between the alleged standard of care, the alleged breach thereof, and the death of Mr. Constancio.”

On August 10, 2006, Constancio requested an “additional twenty-three days, or until August 19, 2006, to file an expert report” on the basis that the original extension granted by the district court did not conform to statutory requirement of allowing a full 30 days of extension. This request for additional time was denied by the district court on August 10, 2006. [155]*155Nevertheless, on August 17, 2006, Con-stancio filed and served a second amended report and curriculum vitae of Dr. Steven Hata setting forth his opinions regarding Ruben’s treatment. On August 18, 2006, the district court entered an order dismissing Constancio’s claims against Dr. Bray with prejudice and once again denied Con-stancio’s request for the previous extension to be expanded to a full 30 days. The district court’s order of dismissal stated that the first amended report “fails to set forth that any failure to meet the standard of care by Dr. James Bray in his treatment of the decedent, Ruben Constancio, caused Ruben Constancio’s death.” The court also awarded $5,000 in attorneys’ fees to Dr. Bray. The district court did not consider or rule on the question of whether the second amended report served on August 17, 2006, was deficient.

Adequacy of the First Amended Expert Report

Section 74.351 of the civil practice and remedies code requires a claimant pursuing a health care liability claim to serve one or more expert reports on each party no later than the 120th day after the filing of the original petition. Id. § 74.351(a). The expert report must provide “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. § 74.351(r)(6).

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Cite This Page — Counsel Stack

Bluebook (online)
266 S.W.3d 149, 2008 Tex. App. LEXIS 6652, 2008 WL 4093377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/constancio-v-bray-texapp-2008.