Opinion
TERRY McCALL, Justice.
The issue in this mandamus action is whether a trial court, after finding that a timely-furnished medical expert report is inadequate to satisfy the requirements of an “expert report” under TEX.REV.CIV. STAT.ANN. art. 4590i, § 13.01(d) & (r)(6) (Vernon Supp.2002), has discretion under Section 13.01(g) to grant plaintiffs a 30-day extension period for furnishing another expert report.1 Because a majority of this court concludes that the trial court has discretion to grant an extension period under Section 13.01(g) and is not required to dismiss the action under Section 13.01(e), we deny the petition for a writ of mandamus.
Background Facts
Billie G. Newman was severely injured in an automobile accident and was taken to Hendrick Medical Center. Shortly after a thoracic epidural catheter drip was placed in her, she suffered respiratory cardiac arrest. The Newman family2 brought this medical malpractice action against Hen-drick Medical Center; John Frank White, III, M.D.; Norman J. Dozier, M.D.; and Abilene Anesthesia Group, P.A. (collectively Relators), alleging that Relators’ negligence caused the cardiac arrest; that Newman suffered major, irreversible brain damage as a result of the cardiac arrest; and that she ultimately died as a result of complications from the arrest.
The Newman family was required to furnish each defendant physician and health care provider an expert report and the expert’s curriculum vitae within 180 days of filing suit or voluntarily nonsuit the action. Section 13.01(d); Bowie Memorial Hospital v. Wright, 79 S.W.3d 48, 45 Tex.Sup.Ct. J. 833, 834 (June 13, 2002); American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). Section 13.01(r)(6) sets forth the requirements for the “expert report” that Section 13.01(d) requires a claimant to furnish each physician and health care provider.
The Newman family filed a report within the deadlines of Section 13.01(d), furnishing Relators with the expert report and curriculum vitae of Dr. Brian Lowery. Relators challenged the adequacy of the report as provided in Section 13.01(Z) and [775]*775moved under Section 13.01(e) for dismissal of the Newman family’s action with prejudice. In response, the Newman family filed a motion seeking a 30 day grace period under Section 13.01(g) if the trial court should find that Dr. Lowery’s report was inadequate. At the hearing, the trial court found that Dr. Lowery’s report was not an “expert report” as defined by Section 13.01(r)(6); and, therefore, the Newman family had failed to furnish Relators an expert report within 180 days of filing their lawsuit. The attorney for the Newman family testified that he had mistakenly thought that Dr. Lowery’s report met the requirements of Section 13.01(r)(6) but that he had been making an effort to contact Dr. Lowery for Dr. Lowery to provide more detail in his report before the hearing. The trial court then granted the Newman family a 30-day grace period to furnish Relators a report complying with Section 13.01(d) and (r)(6). Granting the grace period under Section 13.01(g), the trial court found that the failure to furnish an expert report was not intentional or the result of conscious indifference but was the result of an accident or mistake. The trial court then denied Relators’ motion to dismiss.
Mandamus relief will only issue to correct a clear abuse of discretion or a violation of a legal duty when there is no adequate remedy at law. In re Epic Holdings, Inc., 985 S.W.2d 41, 56 (Tex.1998)(orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992)(orig. proceeding). We need only address whether the trial court committed a clear abuse of discretion or a violation of a legal duty.3
The Newman family agrees that Dr. Lowery’s report did not meet the requirements of Section 13.01(d) and (r)(6). Because the report was inadequate, Rela-tors contend that Section 13.01(e) imposed a legal duty on the trial court to dismiss the Newman family’s action with prejudice and that it was a clear abuse of discretion when the trial court failed to do so. Section 13.01(e) provides in part:
(e) If a claimant has failed, for any defendant physician or health care provider, to comply with Subsection (d) of this section within the time required, the court shall, on the motion of the affected physician or health care provider, enter an order awarding as sanctions against the claimant or the claimant’s attorney:
(1) the reasonable attorney’s fees and costs of court incurred by that defendant;
(3)the dismissal of the action of the claimant against that defendant with prejudice to the claim’s refiling.
A report of an expert that fails to set forth the elements required by Section 13.01(r)(6) is not, by definition, an “expert report.” By furnishing an inadequate report, the Newman family failed to comply with Section 13.01(d) because they did not furnish an “expert report” within 180 days of filing suit. Whitworth v. Blumenthal, 59 S.W.3d 393, 399 (Tex.App.-Dallas 2001, pet’n dism’d by agr.). Relators argue that, when a medical malpractice claimant has failed to comply with Section 13.01(d) because the claimant furnished an inadequate report, Section 13.01(e) mandates that “the court shall.. .enter an order awarding as sanctions against the claimant.. .the dismissal of the action.. .with prejudice.” Their position is that Section 13.01(g) was not available to the Newman family because Section 13.01(e) mandated a dismissal with prejudice by the trial court. [776]*776Therefore, Relators do not challenge the trial court’s finding that the Newman family’s failure to provide an adequate “expert report” was not intentional or the result of conscious indifference but was the result of an accident or mistake. The question of whether a mistake of law as to the content of the report by the claimant’s attorney constitutes a “mistake” under Subsection (g) was the issue in Gutierrez v. Walker, 50 S.W.3d 61 (Tex.App.-Corpus Christi 2001, pet’n granted), and is currently being addressed by the Texas Supreme Court in Walker v. Gutierrez, No. 01-0841 (pet’n granted June 20, 2002)(set for submission October 23, 2002).4
Relators acknowledge that earlier the trial court could have granted the Newman family a 30-day extension under Section 13.01(f) for furnishing the report, but Section 13.01(f) is only available to extend the 180-day period to 210 days; it is not available after the 210 days have passed. Whitworth v. Blumenthal, supra at 397. Relators also acknowledge that a trial court can grant a 30 day grace period under Section 13.01(g) for furnishing the report, but they argue that Section 13.01(g) is only available where the claimant failed to furnish any report during the 180-day period. This argument ignores the initial phrase of Section 13.01(g). Section 13.01(g) provides:
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion
TERRY McCALL, Justice.
The issue in this mandamus action is whether a trial court, after finding that a timely-furnished medical expert report is inadequate to satisfy the requirements of an “expert report” under TEX.REV.CIV. STAT.ANN. art. 4590i, § 13.01(d) & (r)(6) (Vernon Supp.2002), has discretion under Section 13.01(g) to grant plaintiffs a 30-day extension period for furnishing another expert report.1 Because a majority of this court concludes that the trial court has discretion to grant an extension period under Section 13.01(g) and is not required to dismiss the action under Section 13.01(e), we deny the petition for a writ of mandamus.
Background Facts
Billie G. Newman was severely injured in an automobile accident and was taken to Hendrick Medical Center. Shortly after a thoracic epidural catheter drip was placed in her, she suffered respiratory cardiac arrest. The Newman family2 brought this medical malpractice action against Hen-drick Medical Center; John Frank White, III, M.D.; Norman J. Dozier, M.D.; and Abilene Anesthesia Group, P.A. (collectively Relators), alleging that Relators’ negligence caused the cardiac arrest; that Newman suffered major, irreversible brain damage as a result of the cardiac arrest; and that she ultimately died as a result of complications from the arrest.
The Newman family was required to furnish each defendant physician and health care provider an expert report and the expert’s curriculum vitae within 180 days of filing suit or voluntarily nonsuit the action. Section 13.01(d); Bowie Memorial Hospital v. Wright, 79 S.W.3d 48, 45 Tex.Sup.Ct. J. 833, 834 (June 13, 2002); American Transitional Care Centers of Texas, Inc. v. Palacios, 46 S.W.3d 873, 877 (Tex.2001). Section 13.01(r)(6) sets forth the requirements for the “expert report” that Section 13.01(d) requires a claimant to furnish each physician and health care provider.
The Newman family filed a report within the deadlines of Section 13.01(d), furnishing Relators with the expert report and curriculum vitae of Dr. Brian Lowery. Relators challenged the adequacy of the report as provided in Section 13.01(Z) and [775]*775moved under Section 13.01(e) for dismissal of the Newman family’s action with prejudice. In response, the Newman family filed a motion seeking a 30 day grace period under Section 13.01(g) if the trial court should find that Dr. Lowery’s report was inadequate. At the hearing, the trial court found that Dr. Lowery’s report was not an “expert report” as defined by Section 13.01(r)(6); and, therefore, the Newman family had failed to furnish Relators an expert report within 180 days of filing their lawsuit. The attorney for the Newman family testified that he had mistakenly thought that Dr. Lowery’s report met the requirements of Section 13.01(r)(6) but that he had been making an effort to contact Dr. Lowery for Dr. Lowery to provide more detail in his report before the hearing. The trial court then granted the Newman family a 30-day grace period to furnish Relators a report complying with Section 13.01(d) and (r)(6). Granting the grace period under Section 13.01(g), the trial court found that the failure to furnish an expert report was not intentional or the result of conscious indifference but was the result of an accident or mistake. The trial court then denied Relators’ motion to dismiss.
Mandamus relief will only issue to correct a clear abuse of discretion or a violation of a legal duty when there is no adequate remedy at law. In re Epic Holdings, Inc., 985 S.W.2d 41, 56 (Tex.1998)(orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992)(orig. proceeding). We need only address whether the trial court committed a clear abuse of discretion or a violation of a legal duty.3
The Newman family agrees that Dr. Lowery’s report did not meet the requirements of Section 13.01(d) and (r)(6). Because the report was inadequate, Rela-tors contend that Section 13.01(e) imposed a legal duty on the trial court to dismiss the Newman family’s action with prejudice and that it was a clear abuse of discretion when the trial court failed to do so. Section 13.01(e) provides in part:
(e) If a claimant has failed, for any defendant physician or health care provider, to comply with Subsection (d) of this section within the time required, the court shall, on the motion of the affected physician or health care provider, enter an order awarding as sanctions against the claimant or the claimant’s attorney:
(1) the reasonable attorney’s fees and costs of court incurred by that defendant;
(3)the dismissal of the action of the claimant against that defendant with prejudice to the claim’s refiling.
A report of an expert that fails to set forth the elements required by Section 13.01(r)(6) is not, by definition, an “expert report.” By furnishing an inadequate report, the Newman family failed to comply with Section 13.01(d) because they did not furnish an “expert report” within 180 days of filing suit. Whitworth v. Blumenthal, 59 S.W.3d 393, 399 (Tex.App.-Dallas 2001, pet’n dism’d by agr.). Relators argue that, when a medical malpractice claimant has failed to comply with Section 13.01(d) because the claimant furnished an inadequate report, Section 13.01(e) mandates that “the court shall.. .enter an order awarding as sanctions against the claimant.. .the dismissal of the action.. .with prejudice.” Their position is that Section 13.01(g) was not available to the Newman family because Section 13.01(e) mandated a dismissal with prejudice by the trial court. [776]*776Therefore, Relators do not challenge the trial court’s finding that the Newman family’s failure to provide an adequate “expert report” was not intentional or the result of conscious indifference but was the result of an accident or mistake. The question of whether a mistake of law as to the content of the report by the claimant’s attorney constitutes a “mistake” under Subsection (g) was the issue in Gutierrez v. Walker, 50 S.W.3d 61 (Tex.App.-Corpus Christi 2001, pet’n granted), and is currently being addressed by the Texas Supreme Court in Walker v. Gutierrez, No. 01-0841 (pet’n granted June 20, 2002)(set for submission October 23, 2002).4
Relators acknowledge that earlier the trial court could have granted the Newman family a 30-day extension under Section 13.01(f) for furnishing the report, but Section 13.01(f) is only available to extend the 180-day period to 210 days; it is not available after the 210 days have passed. Whitworth v. Blumenthal, supra at 397. Relators also acknowledge that a trial court can grant a 30 day grace period under Section 13.01(g) for furnishing the report, but they argue that Section 13.01(g) is only available where the claimant failed to furnish any report during the 180-day period. This argument ignores the initial phrase of Section 13.01(g). Section 13.01(g) provides:
Notwithstanding any other provision of this section [13.01], if a claimant has failed to comply with a deadline established by Subsection (d) of this section and after hearing the court finds that the failure of the claimant or the claimant’s attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection. A motion by a claimant for relief under this subsection shall be considered timely if it is filed before any hearing on a motion by a defendant under Subsection (e) of this section. (Emphasis added)
The phrase “[n]otwithstanding any other provision of this section” clearly refers to all of the provisions of Section 13.01, including the provision found in Section 13.01(e). Therefore, notwithstanding Subsection (e), Subsection (g) entitled the Newman family to a 30 day grace period if they could show that their failure to furnish an expert report within the deadline was not intentional or the result of conscious indifference. Whitworth v. Blumenthal, supra at 400.
Relators argue that the Newman family did not fail “to comply with a deadline established by Subsection (d)” because they furnished a report and complied with the deadline established by Subsection (d); the report just did not meet the requirements of Section 13.01(r)(6). Subsection (g) was enacted to serve as a “safety valve” to prevent forfeiture of claims through an accident or mistake that causes a party to fail to comply with Subsection (d). Broom v. MacMaster, 992 S.W.2d 659, 663 (Tex.App.-Dallas 1999, no pet’n). Following Relators’ logic, a claimant is unable to utilize the “safety valve” of Subsection (g) if the claimant made an effort to provide an adequate “expert report” but is able to utilize the “safety valve” if the claimant failed to furnish any report. Un[777]*777der Relators’ reading of Section 13.01, a claimant whose furnished expert report is inadvertently missing a page or who erroneously furnishes the wrong expert report cannot use Subsection (g) to add the missing page or subsequently furnish the correct expert report.
If the legislature had meant for Section 13.01(g) to only apply where a claimant has failed to furnish any report, it would have been a simple matter to have Section 13.01(g) read: “If a claimant has failed to [furnish] a report with[in] a deadline established by Subsection (d).” (Emphasis added) The Newman family “failed to comply with a deadline established by Subsection (d)” when they provided Relators with an inadequate report just as they would have “failed to comply” if they had failed to furnish any report.
The “failed to comply” phrasing in both Section 13.01(g) and (e) is similar. A court shall, upon motion, dismiss with prejudice an action pursuant to Section 13.01(e) “[i]f a claimant has failed, for any defendant physician or health care provider, to comply with Subsection (d) of this section within the time required.” (Emphasis added) The phrasing of the failure “to comply with Subsection (d) ... within the time required” found in Subsection (e) and the failure “to comply with a deadline established by Subsection (d)” found in Subsection (g) should be interpreted consistently. See Whitworth v. Blumenthal, supra at 409 (concurring opinion). As we pointed out in Richburg v. Wolf, 48 S.W.3d 375, 378 (Tex.App.-Eastland 2001, pet’n den’d), failure to comply with the requirements of Section 13.01(d) and (r)(6) may stem from either the failure to furnish a report or the furnishing of an inadequate report.
We hold that the trial court had discretion under Section 13.01(g) to grant a grace period of 30 days for the Newman family to furnish an “expert report” even though the trial court found their first report to be inadequate under Subsections (d) and (r)(6) and even though the initial 180 day period referred to in Subsection (d) had expired.
This Court’s Ruling
Relators’ petition for writ of mandamus is denied.
JIM R. WRIGHT, J., dissents.