in Re Texas Children's Hospital

Opinion

Opinion issued July 30, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-19-00105-CV ——————————— IN RE BAYLOR COLLEGE OF MEDICINE, Relator ———————————— NO. 01-19-00142-CV ——————————— IN RE TEXAS CHILDREN’S HOSPITAL, Relator

Original Proceedings on Petitions for Writ of Mandamus

MEMORANDUM OPINION Relator, Baylor College of Medicine (“BCOM”), filed a petition for a writ of

mandamus seeking to compel the respondent district judge to rule on BCOM’s

pending motion to dismiss for failure to serve an expert medical report under Chapter

74 of the Texas Civil Practice and Remedies Code, which was assigned to 01-19- 00105-CV. Relator Texas Children’s Hospital (“TCH”), BCOM’s co-defendant

below, filed a similar mandamus petition also seeking to compel the respondent to

rule on its pending Chapter 74 motion to dismiss, which was assigned to 01-19-

00142-CV.1 This Court requested responses in both cases, but none were timely

filed.

Because the respondent has not ruled on the motions to dismiss within a

reasonable time, under the circumstances, we conditionally grant the two petitions.

Background

A. Procedural History in the Trial Court

On August 2, 2017, real party in interest (“RPI”) Melanie Harris filed her

original petition in Harris County against BCOM and TCH alleging libel, civil

conspiracy, abuse of process, fraud, and intentional infliction of emotional distress

claims. Harris claims that, after she moved to Houston from New York City in

March 2014, TCH physicians, on March 26, 2014, incorrectly diagnosed that her

minor daughter, N.S., appeared “malnourished.” Then Harris contends that TCH

physicians improperly reported their misdiagnosis to the New York City

Administration for Children’s Services (“ACS”) who issued an Amber Alert that

1 The underlying case for both petitions is Melanie Harris v. Texas Children’s Hospital, Baylor College of Medicine, Cause No. 2017-49635, pending in the 165th District Court of Harris County, Texas, the Honorable Ursula A. Hall presiding. 2 caused her to return to New York City where ACS temporarily removed N.S.,

allegedly just for TCH’s bills to be paid.

After RPI Harris failed to serve an expert report on BCOM and TCH in Harris

County, as required by Texas Civil Practice and Remedies Code § 74.351 within 120

days of the filing of BCOM’s and TCH’s answers on August 31, 2017, BCOM filed

its original motion to dismiss on January 11, 2018, and TCH filed its similar motion

to dismiss on January 15, 2018. On February 9, 2018, RPI Harris filed a combined

response to the relators’ motions to dismiss contending that, because her lawsuit was

not a health care liability claim subject to Chapter 74, no expert report was required.

On March 7, 2018, the respondent sua sponte passed the hearing on relators’

motions to dismiss because they did not contain certificates of conference. Relator

TCH filed its “Second Amended Motion to Dismiss Pursuant to CPRC § 74.351(b)”

on March 21, 2018, and relator BCOM filed its “Amended and Opposed Motion to

Dismiss” on March 27, 2018, both with certificates of conference.

On May 3, 2018, an oral hearing was held on relators’ amended motions to

dismiss, but RPI Harris’s counsel failed to appear. At the end of the hearing, the

respondent stated that the issues appeared straightforward, but she took the motions

under advisement and indicated that she anticipated entry of an order granting the

motions within one week, and that counsel should email the court if no order was

entered by then. Since that hearing, relators have emailed or filed several requests

3 for rulings from the respondent on their motions to dismiss from May 2018-February

2019, but the respondent has yet to rule. These requests included emails on May 10,

2018, and July 2, 2018, at status conferences on August 13 and 27, 2018, with its

August 30, 2018 and February 13, 2019 pre-trial submissions, pursuant to the Docket

Control Order, and an October 26, 2018 “Motion for Entry of Order,” but the

respondent reset the bench trial date two times until March 4, 2019.

B. Procedural History in this Court

On February 13, 2019, relator BCOM filed this mandamus petition seeking to

compel the respondent to rule on its pending Chapter 74 motion to dismiss for failure

to timely serve an expert report. BCOM claims that it has incurred unnecessary

litigation expenses due to respondent’s failure to rule, and that it lacks an adequate

remedy because no interlocutory appeal may be filed until an order is signed. BCOM

also filed a motion for temporary relief to stay the underlying proceedings including

the March 4, 2019 bench trial setting, pending this Court’s disposition of its petition.

See TEX. R. APP. P. 52.10(a). This Court’s February 15, 2019 Order granted the

motion and requested a response to the petition, but none has been timely filed.

On March 1, 2019, relator TCH filed a similar mandamus petition also seeking

to compel the respondent to rule on its pending Chapter 74 motion to dismiss in the

same underlying cause number 2017-49635. TCH similarly claims that it has

incurred unnecessary litigation expenses due to respondent’s failure to rule, and that

4 it lacks an adequate remedy because no interlocutory appeal may be filed until an

order is signed. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(9)–(10). This

Court’s March 5, 2019 Order requested a response to TCH’s petition, but none has

been timely filed.

Standard of Review

Mandamus is an extraordinary remedy, available only when the relator can

show both that: (1) the trial court clearly abused its discretion or violated a duty

imposed by law; and (2) there is no adequate remedy by way of appeal. In re Ford

Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (orig. proceeding); Walker v. Packer,

827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding).

Analysis

A. Clear Abuse of Discretion

When a motion is properly filed and pending before a trial court, the act of

giving consideration to and ruling on that motion is a ministerial act. See Barnes v.

State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st Dist.] 1992) (orig.

proceeding) (denying mandamus petitions to compel trial court to conduct hearings).

A trial court has a ministerial duty to consider and rule on motions properly filed and

pending before it, and mandamus may issue to compel the trial court to act. In re

Blakeney, 254 S.W.3d 659, 661 (Tex. App.—Texarkana 2008, orig. proceeding). A

trial court is required to rule on a motion within a reasonable time after the motion

5 has been submitted to the court for a ruling or a ruling on the motion has been

requested. In re Foster, 503 S.W.3d 606, 607 (Tex. App.—Houston [14th Dist.]

2016, orig. proceeding) (per curiam).

To establish that the trial court abused its discretion by failing to rule on a

properly pending motion, the relator must establish that the trial court: (1) had a

legal duty to perform a nondiscretionary act; (2) was asked to perform the act; and

(3) failed or refused to do so within a reasonable time. See O’Connor v. First Court

of Appeals, 837 S.W.2d 94, 97 (Tex. 1992) (orig. proceeding); see also In re Mesa

Petroleum Partners, L.P., 538 S.W.3d 153, 156 (Tex. App.—El Paso 2017, orig.

proceeding); In re Pollet, 281 S.W.3d 532, 534 (Tex. App.—El Paso 2008, orig.

proceeding). Whether a reasonable time for the trial court to act has lapsed depends

on the circumstances of the case. In re Blakeney, 254 S.W.3d at 662. “The test for

determining what time period is reasonable is not subject to exact formulation, and

no ‘bright line’ separates a reasonable time from an unreasonable one.” In re

Greater McAllen Star Props., Inc., 444 S.W.3d 743, 748 (Tex. App.—Corpus

Christi–Edinburg 2014, orig. proceeding) (citations omitted).

The Texas Medical Liability Act defines a health care liability claim as any

cause of action against a health care provider or physician for treatment or lack of

treatment, which results in injury to the claimant, whether the claim sounds in tort

or contract. See TEX. CIV. PRAC. & REM. CODE § 74.001(a)(13); Scott v. Weems, 575

6 S.W.3d 357, 363 (Tex. 2019). The Texas Supreme Court recently held that “[w]hen

a claim brought against a health care provider is based on facts implicating the

defendant’s conduct during the course of a patient’s care, treatment, or confinement,

a rebuttable presumption arises that it is a health care liability claim for purposes of

the Medical Liability Act.” Scott, 575 S.W.3d at 363 (internal quotation marks and

citations omitted).

Here, RPI Harris’s libel, civil conspiracy, abuse of process, fraud, and

intentional infliction of emotional distress claims invoke the presumption here

because these claims arose from N.S.’s medical treatment by TCH’s physicians, who

she claims then gave an incorrect final diagnosis, which led ACS to temporarily

remove N.S. so that TCH’s medical bills would be paid. The Texas Supreme Court

has held that “[a] person cannot avoid the statutory expert-report requirements by

artful pleading,” and that fraud, fraudulent concealment, civil conspiracy, and

misrepresentation claims against a physician and, through vicarious liability, his

hospital, were health care liability claims because they attacked the “quality of

medical services” they received from that physician. In re McAllen Med. Ctr., Inc.,

275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding). Similar to RPI Harris’s libel

and intentional infliction of emotional distress claims, the Texas Supreme Court

recently held that a record-falsification claim by a nurse, and a resulting claim for

intentional infliction of emotional distress, were health care liability claims because

7 they arose from health care received from that nurse and the plaintiff asserted that

these claims proximately caused his injuries. See Scott, 575 S.W.3d at 363–64.

Thus, the respondent had a legal duty to perform a nondiscretionary act to rule on

the motions because RPI Harris’s lawsuit alleged health care liability claims. See

McAllen Med. Ctr., 275 S.W.3d at 464; Pollet, 281 S.W.3d at 534.

Moreover, the record shows that relator TCH’s second amended motion to

dismiss, filed on March 21, 2018, has been pending for over eleven months when it

filed its petition, and for ten months since the May 3, 2018 motion hearing.

Similarly, BCOM’s amended motion to dismiss, filed on March 27, 2018, has been

pending for over ten months, when it filed its petition, and for over nine months

since the May 3, 2018 motion hearing. Despite several requests for a ruling, the

respondent has yet to rule on either motion, and the record shows no reason for

respondent’s delay. Relators claim that the respondent’s delay in ruling is causing

them substantial harm because they had to incur unnecessary litigation expenses.

We take judicial notice that our Court is granting mandamus relief in three

different petitions against the same respondent, the Honorable Ursula Hall, for

failing to rule on pending Chapter 74 motions to dismiss or for summary judgment

or a plea to the jurisdiction within a reasonable time after they were submitted. See

In re Tomball Tex. Hosp. Co., LLC d/b/a Tomball Region Med. Ctr., No. 01-19-

00242-CV (Tex. App.—Houston [1st Dist.] July 30, 2019, orig. proceeding) (per

8 curiam) (mem. op.) (granting mandamus relief to direct Judge Ursula Hall to rule on

relator’s Chapter 74 motion to dismiss and real party in interest’s motion for

interlocutory summary judgment, pending over nineteen months, and relator’s

amended traditional motion for summary judgment, pending over fourteen months);

In re The Univ. of Tex. MD Anderson Cancer Ctr., No. 01-19-00201-CV (Tex.

App.—Houston [1st Dist.] July 30, 2019, orig. proceeding) (per curiam) (mem. op.)

(granting mandamus relief to direct Judge Ursula Hall to rule on relator’s plea to

jurisdiction pending over one year); In re The Univ. of Tex. MD Anderson Cancer

Ctr., No. 01-19-00202-CV (Tex. App.—Houston [1st Dist.] July 30, 2019, orig.

proceeding) (per curiam) (mem. op.) (granting mandamus relief to direct Judge

Ursula Hall to rule on relator’s Chapter 74 motion to dismiss pending over one year).

We also take judicial notice that our sister court has granted mandamus relief

in four separate petitions against the same respondent for failing to rule on pending

pleas/motions within a reasonable time after they were submitted for shorter periods

of time than alleged in these petitions. See In re ABC Assembly LLC, No. 14-19-

00419-CV, 2019 WL 2517865, at *3 (Tex. App.—Houston [14th Dist.] June 18,

2019, orig. proceeding) (per curiam) (mem. op.) (granting mandamus relief to direct

Judge Ursula Hall to rule on relator’s motion for entry of judgment pending about

eight months); In re Harris Cty. Appraisal Dist., No. 14-19-00078-CV, 2019 WL

1716274, at *3–4 (Tex. App.—Houston [14th Dist.] Apr. 18, 2019, orig. proceeding)

9 (mem. op.) (granting mandamus relief to direct Judge Ursula Hall to rule on relator’s

plea to jurisdiction pending over six months); In re Coffey, No. 14-18-00124-CV,

2018 WL 1627592, at *2 (Tex. App.—Houston [14th Dist.] Apr. 5, 2018, orig.

proceeding) (per curiam) (mem. op.) (granting mandamus relief to direct Judge

Ursula Hall to rule on relator’s motion to confirm arbitration award pending over

four months); In re PDVSA Servs., Inc., No. 14-17-00824-CV, 2017 WL 6459227,

at *4 (Tex. App.—Houston [14th Dist.] Dec. 19, 2017, orig. proceeding) (per

curiam) (mem. op.) (granting mandamus relief, in part, to direct Judge Ursula Hall

to rule on relator’s motion to submit appeal, of order of appraisal review board to

nonbinding arbitration, pending over eight months).

Accordingly, we conclude, under these circumstances where the motions are

opposed, but have been pending over ten months, and the respondent noted at the

hearing that they appeared straightforward and would be granted within a week, and

it appears that the delay in ruling is prejudicing relators, that the respondent has

abused her discretion. For these reasons, we hold that the respondent failed to

perform her ministerial duty to rule on the Chapter 74 motions to dismiss within a

reasonable time after they were submitted. See Foster, 503 S.W.3d at 607.

B. Adequacy of Appellate Remedy

Relief by writ of mandamus is warranted in cases in which the very act of

proceeding to trial—regardless of the outcome—would defeat the substantive right

10 involved. McAllen Med. Ctr., 275 S.W.3d at 465. “The Texas Medical Liability Act

(Act) requires a claimant pursuing a ‘health care liability claim’ to timely serve an

adequate expert report” within 120 days after the answer is filed, absent an extension,

and “[f]ailure to do so requires dismissal with prejudice.” Scott, 575 S.W.3d at 360–

61.

Until the expert report is served, all discovery is stayed in a health care

liability claim. See TEX. CIV. PRAC. & REM. CODE § 74.351(s). The Legislature

intended this procedure to preclude extensive discovery and prolonged litigation in

frivolous cases. In re Roberts, 255 S.W.3d 640, 641 (Tex. 2008) (per curiam)

(discussing legislative intent behind enactment of former Article 4590i, predecessor

to Chapter 74 of Texas Civil Practice and Remedies Code); see also Pollet, 281

S.W.3d at 535. An appeal is not an adequate remedy when a trial court’s refusal to

rule on a motion, and therefore enforce a statutory provision, would frustrate the

Legislature’s intent. Roberts, 255 S.W.3d 640, 641; see also Pollet, 281 S.W.3d at

535. Thus, the relators lack an adequate appellate remedy for the respondent’s

failure to rule on their Chapter 74 motions to dismiss within a reasonable time period.

See Pollet, 281 S.W.3d at 535 (granting mandamus relief after holding that relator

had no adequate remedy for trial court’s failure to rule on Chapter 74 motion to

dismiss within reasonable time period).

11 CONCLUSION Accordingly, we lift this Court’s February 15, 2019 stay, conditionally grant

both relator BCOM’s and TCH’s mandamus petitions, and direct the respondent trial

court to rule on the pending Chapter 74 motions to dismiss before ruling on other

motions. We express no opinion as to the merits of the motions. See Harris Cty.

Appraisal Dist., 2019 WL 1716274, at *4 (citing In re ReadyOne Indus., Inc., 463

S.W.3d 623, 624 (Tex. App.—El Paso 2015, orig. proceeding) (stating that while

appellate court has jurisdiction to direct trial court to exercise its discretion, it is not

permitted to tell trial court how to rule on pending motion)). We are confident that

the trial court will comply, and our writs will issue only if it does not comply within

30 days of the date of this opinion.

Panel consists of Justices Keyes, Kelly, and Goodman.