In Re Schneider

134 S.W.3d 866, 2004 Tex. App. LEXIS 4352, 2004 WL 1068020

• Court: Court of Appeals of Texas
• Decided: May 13, 2004
• Docket: 14-04-00169-CV
• Status: Published

Opinions

OPINION

ADELE HEDGES, Chief Justice.

On February 24, 2004, relators, Franz Emil Schneider, M.D. and Suresh Rajen-dran, M.D., filed a petition for writ of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (Vernon Supp.2004); see also Tex.R.App. P. 52. In their petition, relators seek to compel the Honorable Sharolyn Wood, Judge of the 127th Judicial District Court of Harris County, to set aside her September 26, 2003 order entered in cause number 2002-61220, styled Curtis Phipps, et al. v. Juan Botto, M.D., et al., denying relátors’ motion to dismiss. Relators seek mandamus relief to compel the trial court to enter an order dismissing the claims against them with prejudice. Relators assert that dismissal is mandated because the expert report filed by the real parties in interest did not comply with former article 4590i, sections 13.01(d), 13.01(r)(6), 14.01(a), and 14.01(c) of the Medical Liability and Insurance Improvement Act.¹

Relators and other physicians were sued by the family of Minnie Phipps for damages allegedly sustained as a result of medical malpractice during her treatment for abdominal pain during the seven months before her death. Relators complain that the report furnished by the real parties’ expert does not constitute a good faith effort to comply with the statutory definition of an expert report. On September 26, 2003, the trial court denied relators’ motion to dismiss, and relators subsequently filed this petition.

Mandamus issues only to correct a clear abuse of discretion or the violation of a duty imposed by law where there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). The . requirement that a party seeking mandamus relief establish the lack of an adequate appellate remedy is a “fundamental tenet” of mandamus practice. Id. at 840. Mandamus is intended to be an extraordinary remedy, available only in limited circumstances. Id. An appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining mandamus relief. See CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex.1996); Walker, 827 S.W.2d at 842. Because mandamus is an extraordinary remedy, we may not issue mandamus to supervise or correct a trial court’s incidental rulings when there is an adequate remedy at law, such as an appeal. See Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 306 (Tex.1994); Walker, 827 S.W.2d at 839-40.

Relators cite In re Collom & Carney Clinic Association, 62 S.W.3d 924 (Tex.App.-Texarkana 2001, orig. proceeding) to support their argument that appeal is inadequate to review the denial of a motion to dismiss due to a deficient expert report under former article 4590L² In Collom, the trial court found that the expert report filed by the plaintiff was untimely, and that the lack of compliance with section 13.01(d)’s requirement to file a report within 180 days was not due to accident or mistake. See former article 4590i, § 13.01(g) (providing for 30-day grace period where noncompliance is not intentional but due to accident or mistake). Nevertheless, the trial court granted a 30-day extension. Id. at 927.

Relators complained that the trial court had a ministerial duty to dismiss the plaintiffs case with prejudice. Although the Texarkana court acknowledged that the trial court’s denial of motions designed to terminate or abate lawsuits generally are not reviewable by mandamus, it nonetheless conditionally granted relief.³ In concluding an appellate remedy was inadequate to review the denial of a motion to dismiss after a trial court has found the report deficient, the Texarkana court recognized that the legislature’s stated purpose in enacting article 4590i to reduce frivolous suits. Id. at 929.

We decline to follow Collom and its progeny. Unlike Collom, there is no complaint in this case that the report was untimely. The trial court here made no findings that the expert report was untimely, and thus no ministerial duty was triggered. The determination of whether plaintiffs have made a good faith effort to provide an expert report satisfying the statute requires judicial discretion rather than a ministerial act. See In re Tenet Hosp. Ltd., 116 S.W.3d 821, 830 (Tex.App.-El Paso 2003) (Wittig, J., dissenting) (“[T]he legislature invested with the trial court in the first instance, not the appellate courts, the authority to determine in its judicial discretion, the adequacy of a report.”). Even the Collom court noted it could not review the merits of the trial court’s findings on mandamus. Collom, 62 S.W.3d at 930 (Grant, J., concurring).

The legislature has recently amended section 51.014 of the Texas Civil Practice and Remedies Code to provide for an interlocutory appeal if a trial court denies a motion to dismiss a health care liability claim under section 74.351(b) when an expert’s report has not been served within the statutory deadline. See Act of June 2, 2003, 78th Leg., R.S., ch. 204 § 1.03, 2003 Tex. Gen. Laws 847, 849 (current version at Tex. Civ. PRAC. & Rem.Code Ann. § 51.014(a)(9) (Vernon Supp.2004)). The amendment applies only to actions filed after September 1, 2003. Act of June 2, 2003, 78th Leg., R.S., ch. 204 § 23.02(d), 2003 Tex. Gen. Laws 847, 899. The legislature expressly chose to apply the amendment prospectively. Had the legislature intended to provide interlocutory review of the denial of motions to dismiss under the former article, it could have done so.

As for actions predating September 1, 2003, the Texas Supreme Court recently denied, without written opinion, ten petitions for writs of mandamus seeking to compel dismissal due to inadequate expert reports.⁴ See In Re Woman’s Hosp. of Texas, Inc., 47 Tex. S.Ct. J. 318 (March 5, 2004); In re Horswell, 47 Tex. S.Ct. J. 318 (March 5, 2004); In re Shapiro, 47 Tex. S.Ct. J. 319 (March 5, 2004); In re Rodriguez, 47 Tex. S.Ct. J. 319 (March 5, 2004); In re Fort Worth Osteopathic Hosp., Inc., 47 Tex. S.Ct. J. 319 (March 5, 2004); In re Barker, 47 Tex. S.Ct. J. 319 (March 5, 2004); In re Southside Fam. Care Assocs., 47 Tex. S.Ct. J. 319 (March 5, 2004); In re Riverside Hosp., Inc., 47 Tex. S.Ct. J. 319 (March 5, 2004); In re Farley, 47 Tex. S.Ct. J. 319 (March 5, 2004); In re Redels, 47 Tex. S.Ct. J. 319 (March 5, 2004).

This court has previously denied mandamus relief under circumstances similar to those present here, declining to follow Collom and holding that an adequate remedy by appeal existed. See In re Woman’s Hosp. of Texas, Inc., No. 14-02-00561-CV (Tex.App.-Houston [14th Dist.] July 26, 2002, orig. proceeding) (not designated for publication), mand. denied, 47 Tex. Sup.Ct. J. 318 (March 5, 2004). We therefore hold that relators have an adequate remedy by appeal to review the determination of whether an expert’s report represents a good faith effort to comply with the statutory requirements for such a report.

We deny relators’ petition for writ of mandamus.

FROST, J. concurring.

1 . Act effective August 29, 1977, 65th Leg., R.S., ch. 817, 1977 Tex. Gen. Laws 2039 (as amended) (former Tex.Rev.Civ. Stat. Ann. art. 4590i, §§ 1.01-16.02 (the "Medical Liability and Insurance Improvement Act,")), repealed by Act effective September 1, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. Many of the provisions of former article 4590i are now codified at Tex. Civ. Prac. & Rem.Code Ann. §§ 74.001-74.507 (Vernon Supp.2004). Because this case was filed before September 1, 2003, the provisions of former article 4590i apply. Subsequent references to the repealed act will be cited as "former TexRev.Civ. Stat. Ann. art. 4590i.”

According to the former statute, an expert report must be from a physician who 1) is practicing medicine at the time the opinion is rendered or at the time the claim arose, 2) has knowledge of accepted standards of medical care for the diagnosis, care or treatment of the illness, injury, or condition involved in the claim, and 3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care. Former TexRev.Civ. Stat. Ann. art. 4590i, § 14.01(a)(1), (2), & (3). The statute also provides guidance to determine whether a witness is qualified on the basis of training or experience. Former TexRev.Civ. Stat. Ann. art. 4590i, § 14.01(c).

2 . Relators also rely on In re Watumull, 127 S.W.3d 351, 354-55 (Tex.App.-Dallas, 2004, orig. proceeding) (granting relief due to untimely report); In re Tenet Hosp. Ltd., 116 S.W.3d 821, 827 (Tex.App.-El Paso 2003, orig. proceeding) (granting relief due to inadequate report); and In re Morris, 93 S.W.3d 388, 390 (Tex.App.-Amarillo 2002, orig. proceeding) (denying relief where no abuse of discretion was shown in granting extension), all of which follow Collom's holding that appeal is inadequate without further analysis.

3 . The court cited several instances where mandamus is inappropriate, including the denials of summary judgments, pleas in abatement, special exceptions, motions to dismiss for forum non conveniens and other motions to dismiss. See Collom, 62 S.W.3d at 928-29, and cases cited therein.

4 . Justice Owen, joined by Justices Hecht and Brister, filed a concurring and dissenting opinion to the denial of these petitions, arguing that the purpose of the expert report requirements in former article 4590i can only be served if mandamus relief is available. In re Woman's Hosp. of Texas, Inc., 47 Tex. Sup. Ct. J. 346, 351 (March 5, 2004) (Owen, J. concurring and dissenting) (dissenting to the denial of three petitions after considering the merits of each). Justice Owen recognized granting mandamus in these cases might lead to relaxed standards for granting mandamus relief in other cases. Id. at 355.