Elida Ramirez, Individually and as Representative of the Estate of Enriqueta Gomez, Cruz Gomez, Diana Contreras, Guadalupe Salazar, Joe Gomez, Josefa Gomez, Juan Gomez, Leo Gomez, Manuela G. Reyna, Palbo Gomez, Pedro Gomez, and Virginia Gonzalez v. Doctors Hospital at Renaissance, Ltd.

Opinion

NUMBER 13-09-00076-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

ELIDA RAMIREZ, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF ENRIQUETA GOMEZ, DECEASED, CRUZ GOMEZ, DIANA CONTRERAS, GUADALUPE SALAZAR, JOE GOMEZ, JOSEFA GOMEZ, JUAN GOMEZ, LEO GOMEZ, MANUELA G. REYNA, PABLO GOMEZ, PEDRO GOMEZ, AND VIRGINIA GONZALEZ, Appellants,

v.

DOCTORS HOSPITAL AT RENAISSANCE, LTD., Appellee.

On appeal from the County Court at Law No. 4 of Hidalgo County, Texas. OPINION Before Justices Garza, Benavides, and Vela Opinion by Justice Benavides Appellants, Elida Ramirez, individually and as representative of the estate of

Enriqueta Gomez, Deceased, Cruz Gomez, Diana Contreras, Guadalupe Salazar, Joe

Gomez, Josefa Gomez, Juan Gomez, Leo Gomez, Manuela G. Reyna, Pablo Gomez,

Pedro Gomez, and Virginia Gonzalez (collectively “Ramirez”), appeal the trial court’s

order granting attorneys’ fees in favor of appellee, Doctors Hospital at Renaissance, Ltd.

(the “hospital”) after their health care liability claims were dismissed. See TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(b) (Vernon Supp. 2010). By a single issue, Ramirez

argues that the trial court erred by awarding attorneys’ fees based on Ramirez’s failure to

file an expert report because the hospital failed to provide medical records in a timely

manner. See id. § 74.051(d) (Vernon 2005). We affirm.

I. BACKGROUND

This is the second time this case has been before this Court. See Doctors Hosp.

at Renaissance, Ltd. v. Ramirez, No. 13-07-00608-CV, 2008 Tex. App. LEXIS 5124

(Tex. App.–Corpus Christi July 10, 2008, no pet.) (mem. op.) (“Ramirez I”).1 In Ramirez

I, we addressed the trial court’s dismissal of Ramirez’s health care liability claims for

failure to file an expert report. Id. at **5-6. The order at issue in Ramirez I dismissed

1 The factual background of this case is set forth in Ramirez I and will not be repeated here except as necessary to explain the basis of our holding. See TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”). 2 Ramirez’s claims and awarded attorneys’ fees to the hospital in the event that Ramirez

appealed but not for fees incurred in obtaining the dismissal by the trial court. Id. at

**3-4. The hospital argued on appeal that this was error, and we agreed. Id. at *13.

We reversed the trial court’s judgment and remanded to the trial court to determine the

appropriate amount of attorneys’ fees. Id.

We noted in Ramirez I that Ramirez argued that the trial court improperly granted

the motion to dismiss because the hospital “willfully, knowingly, and intentionally failed to

provide medical records on four occasions,” preventing Ramirez from filing an expert

report within 120 days of filing suit. Id. at *3 n.2. We held, however, that Ramirez

waived this argument by failing to file a notice of appeal. Id. (citing TEX. R. APP. P.

25.1(c) (“A party who seeks to alter the trial court's judgment or other appealable order

must file a notice of appeal. . . . The appellate court may not grant a party who does not

file a notice of appeal more favorable relief than did the trial court except for just

cause.”)).

On remand, the trial court awarded the hospital attorneys’ fees of $22,000 in the

trial court, $6,000 if the award was unsuccessfully appealed to this Court, $5,000 if

Ramirez files a petition for review with the Texas Supreme Court, and $4,000 if the

petition is granted. This appeal ensued.2

2 The trial court signed the order granting attorneys’ fees on November 20, 2008. Ramirez did not file a notice of appeal until January 12, 2009. Thus, the hospital filed a motion to dismiss, arguing the notice of appeal was untimely. See TEX. R. APP. P. 26.1. Thereafter, Ramirez filed a rule 306a(5) motion in the trial court, which the trial court granted, finding that Ramirez’s counsel did not receive notice or acquire actual knowledge of the judgment until January 5, 2009. See TEX. R. CIV. P. 306a(5). The 3 II. ANALYSIS

By a single issue, Ramirez argues that the hospital waived its entitlement to

attorneys’ fees by failing to provide medical records as required by section 74.051(d) of

the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. §

74.051(d).3 The hospital argues that Ramirez waived this argument by failing to file a

cross-appeal in Ramirez I. Assuming, without deciding, that this issue is properly

before us, we disagree that the failure of a defendant to produce medical records

excuses a health care liability plaintiff’s duty to file a timely expert report.

Ramirez contends that the hospital’s failure to provide the medical records is

conduct inconsistent with an intent to rely upon the protections of chapter 74, including

the right to dismissal under section 74.351. See TEX. CIV. PRAC. & REM. CODE ANN. §

74.351(a)-(b). However, a claimant’s efforts to obtain medical records under section

74.051 do not serve to toll or extend the expert report deadline. See Estate of Regis v.

Harris County Hosp. Dist., 208 S.W.3d 64, 68 (Tex. App.–Houston [14th Dist.] 2006, no

pet.) (holding that the plaintiff was not entitled to an equitable extension of the deadline

appellate timetable, therefore, did not start until January 5, 2009, and the notice of appeal was timely. Accordingly, we deny the motion to dismiss. 3 Section 74.051(d) provides:

All parties shall be entitled to obtain complete and unaltered copies of the patient's medical records from any other party within 45 days from the date of receipt of a written request for such records; provided, however, that the receipt of a medical authorization in the form required by Section 74.052 executed by the claimant herein shall be considered compliance by the claimant with this subsection.

TEX. CIV. PRAC. & REM. CODE ANN. § 74.051(d) (Vernon 2005).

4 for filing her medical report on the basis that she made a good-faith effort to obtain her

medical records from the defendant and the defendant did not provide them); see also

Garza v. Saenz, No. 13-09-00111-CV, 2010 Tex. App. LEXIS 1615, at *1 (Tex.

App.–Corpus Christi Mar. 4, 2010, no pet.) (mem. op.); Gulf Coast Med. Ctr., LLC v.

Temple, No. 13-09-00350-CV, 2010 Tex. App. LEXIS 405, at *14 (Tex. App.–Corpus

Christi Jan. 21, 2010, no pet.) (mem. op.); Offenbach v. Stockton, 285 S.W.3d 517, 521

(Tex. App.–Dallas 2009, no pet.) (noting that section 74.351 does not contain a “good

faith” or “due diligence” exception to the 120-day expert report deadline).

A claimant’s efforts to obtain medical records under section 74.051 do not affect a

court’s mandate to award attorneys’ fees in the case of dismissal, either. Although the

Texas Supreme Court in Garcia v. Gomez left open the possibility that “discovery

sanctions might offset an award of fees and costs under section 74.351(b),” it refused to

excuse the failure to file an expert report where the trial court has not made a finding of

discovery abuse. 319 S.W.3d 638, 643 (Tex. 2010). Because there is no finding of

discovery abuse in this case,4 we similarly refuse to consider whether an offset is

appropriate here.

It is undisputed that Ramirez did not file an expert report before the 120-day

deadline expired. Accordingly, as we held in Ramirez I, the trial court had no discretion

but to dismiss the case and to award attorneys’ fees. See 2008 Tex. App. LEXIS 5124,

4 Although the clerk’s record indicates that a motion to compel and a motion for sanctions were filed at one point in this case, it is unclear from the record which party filed these motions. Further, the trial court never ruled on either motion. Thus, there is no formal “finding of discovery abuse.” 5 at *12. We overrule Ramirez’s sole issue.

III. CONCLUSION

Having overruled Ramirez’s issue, we affirm.

________________________ GINA M. BENAVIDES, Justice

Delivered and filed the 27th day of January, 2011.