Justice OWEN, joined by Justice HECHT and Justice BRISTER,
concurring in part and dissenting in part to the denial of the petitions for writ of mandamus.
Today, the Court has not only the opportunity but I believe the obligation to carry out directives the Legislature gave to the courts of this state in article 4590i of the Revised Civil Statutes, which has recently been repealed and recodified with amendments.
Because the Court shirks
its responsibilities, I respectfully dissent. I would grant mandamus relief in health care liability cases that remain governed by former article 4590i when an expert report fails to meet the statutory requirements and the trial court has nevertheless refused to comply with governing law that requires dismissal of the case.
I
More than two decades ago, in 1977, the Texas Legislature concluded that there was a medical malpractice crisis in this state. In response the Legislature enacted the Medical Liability and Insurance Improvement Act, embodied in former article 4590L
By 1995, the Legislature’s concerns had not abated but had deepened. As part of its continuing efforts to reduce the cost of health care to Texans and to ensure that health care would be available across the state, the Legislature amended article 4590i to require trial courts to dismiss health care lawsuits unless an expert report that met certain requirements was filed within the first 180 days of the suit, with certain limited provisions for an extension.
The obvious intent of this statutory provision was to stop suits that had no merit from proceeding through the courts. The Legislature’s hope was,
and is,
that this would reduce waste of the parties’, the courts’, and the insurers’ time and money, which would favorably impact the cost of insurance to health care providers and thus the cost and availability of health care to patients.
This Court refuses to give effect to an integral part of the plan the Legislature set forth in former article 4590i for addressing the increased cost and increased unavailability of medical care. The Court refuses to act in spite of:
• the Legislature’s conclusion that there is a crisis in Texas;
• the Legislature’s express desire that suits be dismissed if at least one expert cannot opine how the health care provider departed from the standard of care and how that departure caused the injury that is the basis for the suit;
and
• the Legislature’s clear determination that law that applies in other lawsuits is inadequate in some respects for health care liability claims.
The Court will not grant mandamus relief even though that is the only way under former article 4590i to give effect to clearly articulated legislative policy when a trial
court will not dismiss a health care liability elaim after a claimant fails to file an expert report that meets the statutory requirements.
II
Just recently, as part of House Bill 4, the Legislature amended section 51.014 of the Texas Civil Practice and Remedies Code to provide for an interlocutory appeal if a trial court refuses to dismiss a health care liability claim when an expert’s statement does not meet the statutory standards.
This is another unmistakable statement of public policy that the Legislature does not want health care liability cases to proceed through the legal system if the threshold requirement of an expert report has not been met. Although an interlocutory appeal is available only in cases filed on or after September 1, 2003, that is not an indication that the Legislature intended for courts to deny mandamus relief in medical liability cases filed before that date. In fact, it seems more likely that the Legislature intended courts to continue to grant mandamus relief in former article 4590i cases, but that for new cases to which the interlocutory appeal provisions apply, the scope of interlocutory review would be narrowed. This is supported by an examination of the law that existed when the. Legislature was crafting the interlocutory appeal provisions in 2003.
Before the enactment of the 2003 amendments that now permit interlocutory appeals, at least two courts of appeals had held that mandamus relief was available in health care liability cases involving challenges to expert reports.
In
In re Collom & Camey Clinic Ass’n,
the trial court had found that the expert’s statement did not satisfy article 4590i’s requirements and that there had been no accident or mistake, but the trial court nevertheless granted an extension of time to file another expert statement.
The court of appeals granted mandamus relief, directing the trial court to dismiss the case.
The court of appeals concluded that “the dismissal in this case is compelled by statute,”
observing that article 4590i “was enacted by the Legislature to address the problem of litigants filing frivolous claims against medical practitioners without adequately investigating them in a timely manner. This led physicians to settle such suits, regardless of their merits, and also to expend sizeable sums defending such claims.”
The court held that an appeal was inadequate under these circumstances.
Similarly, in
In re Morris,
also decided before the 2003 amendments allowing an interlocutory appeal were passed, the trial court had granted a 30-day extension of time for the claimant to attempt to comply with article 4590L
The court of appeals concluded that mandamus relief would be available in such a case, citing
In re Col-lom & Camey Clinic Ass’n
and explaining that “[i]n that case, the court held that because the statute expressed a specific purpose of addressing frivolous claims filed against medical practitioners by requiring
dismissal if a proper expert report was not filed, a remedy by direct appeal was inadequate and mandamus would be available in a proper case.”
When the Legislature enacted the right to an interlocutory appeal, no reported decision had held that mandamus relief was unavailable in cases governed by article 4590L To the contrary, as noted above, at least two reported decisions had expressly said that mandamus relief
was
available, and specifically, that it was available to override a trial court’s decision to grant a 80-day extension. When, in 2003, the Legislature enacted an express provision for interlocutory appeals, it specifically directed that an interlocutory appeal could not be taken from a trial court’s decision to grant a 30-day extension.
It thus seems plausible, even likely, that the Legislature intended to carry forward existing law that allowed appellate courts to direct a trial court to dismiss a health care liability claim when an expert report was lacking or inadequate, but that the Legislature intended to
narrow
existing law in order to eliminate interlocutory review when a trial court granted a 30-day extension.
Granting mandamus relief when there is no expert report that meets former article 4590i’s requirements is entirely consistent with decisions of this Court that hold irreversible harm to the public’s interest makes a remedy by appeal inadequate. We issued a writ of mandamus in
In re Masonite Corp.
directing the trial court to grant the defendant’s motion to transfer venue.
The trial court had recognized that the venues chosen by the plaintiffs in two lawsuits (filed in Jim Hogg and Duval Counties) were improper as to the nonresident plaintiffs, but instead of granting the defendant’s motion to transfer to Dallas County, the trial court severed the claims of hundreds of non-resident plaintiffs and transferred those claims to the claimants’ sixteen respective counties of residence, none of which was Dallas County. This Court pointed out that we do not normally issue mandamus when a trial court erroneously denies a motion to transfer “even though the trial court has committed reversible error.”
But we recognized that while “[a]ppeal may be adequate for a particular party,... it is no remedy at all for the irreversible waste of judicial and public resources that would be required here if mandamus does not issue.”
We held that the overlay of the public’s interest satisfied the “exceptional circumstances” principle, consistent with
Walker v. Packer.
We also granted mandamus relief in
CSR Ltd. v. Link,
directing the trial court to grant the defendant’s special appearance.
We held that “the concerns of judicial efficiency in mass tort litigation combined with the magnitude of the potential risk for mass tort actions against the defendant makes ordinary appeal inadequate.”
In
Link,
an Australian company had been sued by five plaintiffs, but we recognized that there were potentially thousands of claimants. We said, “Be
cause of the size and complexity of the asbestos litigation, the most prudent use of judicial resources in this case is to permit a preliminary resolution of the fundamental issue of personal jurisdiction by writ of mandamus.”
In cases governed by former article 4590i, the injury to the public that cannot be remedied by appeal is the adverse impact on the cost and availability of health care to patients in Texas. When suits continue to proceed through the system even though an expert report meeting article 4590i’s requirements has not been filed, the costs of those proceedings unalterably add to the overall cost of defending health care claims. This is precisely the evil that the Legislature sought to eliminate when it mandated dismissal as the consequence of the lack of an adequate expert report. Once the costs of continuing to litigate are expended, they irrevocably become part of the burden that the Legislature has determined is impairing the health care system in Texas. Only the intervention of the appellate courts by mandamus relief can supply the remedy when trial courts fail to comply with former article 4590⅞ command to dismiss claims.
Recognizing the availability of mandamus relief in these cases would also be entirely congruent with the course this Court has taken in arbitration matters. Twelve years ago, in
Jack B. Anglin Co. v.
Tipps,
this Court recognized that there was a disparity in the availability of an interlocutory appeal between cases under the Federal Arbitration Act
and those under the Texas Arbitration Act.
While both statutory schemes provide for an interlocutory appeal, “federal procedure does not apply in Texas courts, even when Texas courts apply the Federal Act,” and an interlocutory appeal under the Texas statute was only available in cases to which the Texas Act applied.
In
Tipps,
we called on the Legislature to amend the Texas Act to permit interlocutory appeals when the Federal Act applied.
We said that “[s]uch a procedure, already available for orders under the Texas Act, is preferable to reliance on the writ of mandamus.”
We nevertheless held that mandamus relief is available when the Federal Act applies “to fill this gap in appellate jurisdiction.”
We also recognized that “[ajbsent mandamus relief, Anglin would be deprived of the benefits of the arbitration clause it contracted for, and the purposes of providing a rapid, inexpensive alternative to traditional litigation would be defeated.”
The same parallel exists between cases governed by former article 4590i and those governed by sections 74.351(b) and 51.014(a)(9) of the Texas Civil Practice and
Remedies Code.
Interlocutory appeal is now expressly available in the latter cases, but not in the former. As discussed earlier, it is not unreasonable to assume that the Legislature intended courts to continue to issue mandamus when necessary in cases governed by former article 4590L This Court should bridge the “gap in appellate jurisdiction”
rather than leave it gaping.
There is no logical basis for leaving this “gap,” particularly when the Legislature has said since 1995 that dismissing cases in which the requisite expert report has not been filed is a necessary part of the solution to what the Legislature has termed a crisis in Texas. The statutory mechanism for dismissing health care liability suits is analogous to the “rapid, inexpensive alternative to traditional litigation” that we said arbitration provides, but that would be “defeated” “[ajbsent mandamus relief.”
If press accounts of the numbers of health care liability claims filed before the September 1, 2003 effective date of the 2003 amendments are to be believed, the number of cases still governed by former article 4590i is significant.
They number in the thousands.
Ill
I note that in addition to the decisions in
In
re Morris
and
In re Collom & Carney Clinic
Ass ⅜,
other courts of appeals have indicated that mandamus relief is available in cases governed by former article 4590i. In
In re Rodríguez
the court of appeals discussed
Walker v. Packer,
duly observing that “the cost or delay of having to go through trial and the appellate process does not necessarily make that procedure inadequate.”
But the court of appeals concluded that the purpose of article 4590i rendered appeal an inadequate remedy:
To support his contention that he has no adequate remedy at law and is entitled to bring this mandamus proceeding, relator relies upon the reasoning employed by the court in
In re Collom & Carney Clinic Ass’n,
62 S.W.3d 924
(Tex.App.-Texarkana 2001, no pet.). In that case, the court held that the statute had the specific purpose of eliminating frivolous claims filed against medical practitioners by requiring dismissal if an expert report sufficiently showing the claim was not frivolous was not timely filed. Because of this purpose, the court concluded, a remedy by direct appeal was inadequate and mandamus would be available in a proper case.
Id.
at 929-30. As we did in
In
re
Olivia Morris, M.D.
[, 98 S.W.3d 388 (Tex.App.-Amarillo 2002, orig. proceeding) ], we agree with that decision and the court’s reasoning.
Similarly, the court of appeals in
In re Tenet Hospitals Ltd.
held that, when a report omits one of the requirements of article 4590i, there is no adequate remedy by appeal and mandamus should issue dismissing the suit.
That decision cited
In re
Rodriguez
as well as
In re Collom & Carney Clinic Ass’n
and
In re
Morris.
Two other courts of appeals have reached the merits of mandamus proceedings regarding expert reports in health care liability cases without expressly deciding whether there is an adequate remedy by appeal. The court in
In re Hendrick Medical Center, Inc.
held that the trial court did not abuse its discretion in granting a 30-day grace period, noting “[a]l-though we do not reach the question of whether Relators have an adequate remedy at law; see
In re Collom
... for a discussion of this requirement for a writ of mandamus.”
And the court in
In re Barker
noted that “[n]either party disputes that in this type of matter, this court would have jurisdiction to issue a writ of mandamus if it were justified.”
Like several of our courts of appeals, I have no difficulty concluding that the purposes of the expert report requirements in former article 4590i can only be served if mandamus relief is available. The 2003 amendments to the Legislature’s statutory scheme and the corresponding amendment to section 51.014 of the Texas Civil Practice and Remedies Code do, however, inform my view of when mandamus relief would be available. Section 74.351 of the Texas Civil Practice and Remedies Code contains what was formerly section 13.01 of article 4590i, together with certain 2003 amendments.
Under this revised legislative scheme, a trial court may grant one 30-day extension in order to cure any deficiency in a report prepared by an expert.
As discussed above, section 51.014 provides that there is no interlocutory appeal from a trial court’s decision to grant such an extension.
Accordingly, I would not grant mandamus relief under former article 4590i when a trial court erroneously grants a 30-day extension. But I see no
principled basis for withholding mandamus relief under former article 4590i when a trial court fails to dismiss a health care liability claim after the time for filing an expert report has come and gone, and a report meeting the statutory requirements has not been supplied. Nothing in the text or legislative history of either former article 4590i or the 2003 amendments suggests that mandamus relief was not contemplated by the Legislature. To the contrary, the text and purposes of the statute indicate that the Legislature expected courts to follow its directive and dismiss claims that did not meet the statutory expert report requisites.
IY
Ten petitions for writ of mandamus are currently pending before the Court
that challenge trial courts’ rulings in health care liability actions regarding the expert report requirements contained in section 13.01 of former article 4590L
I would consider the merits of each petition rather than summarily deny relief. I would conditionally grant mandamus relief in three of the cases before us and hear oral argument in a fourth case, but I concur in the denial of relief in the six other proceedings for the reasons that follow.
In
In re Woman’s Hospital of Texas, Inc.,
the claimants sued a physician and a hospital and filed a report that was later supplemented. The" trial court denied the hospital’s motion to dismiss. The court of appeals denied mandamus relief in a very brief opinion, concluding that there was an adequate remedy by appeal,
but noting that this conclusion was contrary to
In re Collom & Carney Ass’n
For the reasons discussed above, I would hold that appeal is an inadequate remedy. Additionally, the expert statement tendered by the claimants in this case failed to meet section 13.01’s requirements because it was almost exclusively directed at the physician. It says nothing about the standard of care applicable to the hospital, the manner in which the hospital failed to meet that standard, or how the hospital caused the injury claimed. I therefore would conditionally grant mandamus relief.
In
In re Horswell,
the trial court denied a motion to dismiss, and the court of appeals denied mandamus relief in a brief memorandum opinion that did not state the basis for the decision. The patient in
this case died during a cardiac bypass procedure that was performed “off pump,” meaning the patient was not placed on a heart-lung bypass pump. The claimants offered an expert’s statement that was critical of Dr. Mack, the surgeon, and Dr. Horswell, the anesthesiologist. Only Horswell is seeking mandamus relief. The expert’s statement did not draw any distinction between the respective obligations or roles of a surgeon and an anesthesiologist. The expert’s statement did not set forth the standard of care for an anesthesiologist or explain whether it was the anesthesiologist’s obligation to place the patient on a pump or to notify the surgeon that, in the anesthesiologist’s opinion, the patient should be placed on a pump. The expert’s statement was conclusory, at least with regard to Horswell, and I would conditionally grant mandamus relief.
In
In re Southside Family Care Associates, P.A,
the trial court denied a motion to dismiss, and the court of appeals denied mandamus relief in a brief memorandum opinion that did not state the basis for its decision. Milburn Blondell Jones was treated by a number of health care providers and ultimately died after a cardiac catheterization and later a cardiac bypass were performed. The claimants in this case sued the cardiologist, cardiovascular surgeon, family practitioner, Southside Family Care, Corpus Christi Medical Center, and others. Southside Family Care and Dr. Tsehauner, a family practitioner, seek mandamus relief. The expert’s statement tendered by the claimants does not opine that Southside Family Care breached any standard of care or caused Mr. Jones’s death. As to Tsehauner, the statement does contain a conclusory statement that he and others caused Mr. Jones’s death, but does not state what standard of care applied to Tsehauner, how any standard was breached, or any causal connection between Mr. Jones’s death and a failure by Tsehauner to follow a standard of care. The expert’s statement does not meet the requirements of subsection 13.01(r)(6) of former article 4590L
I would conditionally grant mandamus relief.
The facts in
In re Fort Worth Osteopathic Hospital, Inc.
present interesting issues that no Texas court seems to have yet addressed and that are worthy of this Court’s attention. In this case, Donna McKinzie died after a triple coronary bypass. Her family sued Fort Worth Osteopathic Hospital. After the claimants had tendered an expert’s statement, the hospital filed a motion to dismiss. The trial court did not expressly rule on that motion or two subsequent motions to reconsider, instead continuing each hearing on the motions and allowing the plaintiffs additional time for discovery. While the mandamus petition was pending in this Court, the discovery period allowed by the trial court ended (over a year after the first motion to dismiss was filed), and the hospital filed a third motion to reconsider. The case was transferred to a new trial judge, who denied the hospital’s motion to reconsider and the plaintiffs’ motion for additional time to modify the report.
The trial court apparently allowed additional time for discovery because medical records were, and remain, missing. The expert’s statement reflects that McKinzie was transferred to the hospital on January 15 and coronary surgery occurred on January 23. The physician’s medical records from January 15 through January 27 are missing, as are the physician’s orders from January 22 through January 27 and the nurses’ notes from January 22 through January 28. The claimants’ expert states:
It is impossible to determine the actual clinical course of events that led to Ms. McKinzie’s progressive downhill course and eventual death, but it seems suspicious that such important documents are missing during that critical period of time.... I must, therefore, assume that some entry in those missing records indicates inappropriateness of care from the health care provider, including, but not limited to, physicians, nurses, or other hospital employees. I must also assume that such inappropriate, although undocumented at present, care was a causative factor in Ms. Donna McKin-zie’s death.
The hospital contends that the trial court abused its discretion both in granting the continuances and in refusing to dismiss the case despite the lack of an adequate expert report. The plaintiffs counter that to dismiss would reward the hospital for losing or destroying critical records. This case thus presents the issue of what effect spoliation of evidence, if any, has on article 4590i’s expert report requirements. I would hear oral argument to allow the Court to consider this important issue.
My reasons for denying relief in the other mandamus proceedings are set forth below.
In
In re Shapiro,
cranial surgery was performed on a child, and an infection resulted from a bone implant that was used. The child’s parents sued, contending that there was no informed consent because they were not told that demineral-ized bone would be placed in their child’s head. Dr. Shapiro, one of the defendants and a pediatric neurosurgeon, fitted a motion to dismiss contending that the expert who supplied a statement was not qualified to opine and that her statement provided only a conclusory description of the standard of care, breach of that standard, and causation. The trial court denied the defendant’s motion to dismiss, and the court of appeals denied mandamus relief.
Although the qualifications of the expert present a close question, I cannot say that the trial court abused its discretion. The expert did not have any experience or training in pediatric neurosurgery. She was board certified by the American Board of Pediatrics and specialized in pediatrics and pediatric infectious disease. But her statement says:
My expertise includes a thorough knowledge and understanding of how the infectious process works as it relates to surgery, the cutting of bone, and the type of surgery involved in this case. I also have thorough knowledge concerning the coordination and responsibility of patient care as it relates to an admitting physician and his or her medical group. I am familiar with the standard of care applicable to ... Kenneth Shapiro, M.D.
Nor can I say that the trial court abused its discretion in concluding that the ex
pert’s statement adequately addressed informed consent regarding the use of demineralized bone implanted material.
Accordingly, I would deny the petition for writ of mandamus in this case.
The trial court in
In re
Rodriguez
ruled that the first statement submitted by the expert did not meet the requirements of article 4590L However, the trial court also concluded that the failure to file an adequate report was due to counsel’s mistaken belief that the statement met the statutory requirements. The trial court ruled that this constituted “an accident or mistake” within the meaning of former subsection 13.01(g) of article 4590i and granted a 30-day extension. The claimants then filed another expert statement.
Dr. Rodriguez, one of four defendants in the trial court, sought mandamus relief in the court of appeals challenging only the trial court’s 30-day extension. He did not challenge the second expert statement. The court of appeals held that counsel’s mistaken belief as to the adequacy of the first expert statement satisfied the “accident or mistake” provision in former subsection 13.01(g).
The court of appeals’ decision was issued before this Court held to the contrary in
Walker v.
Gutierrez,
Nevertheless, I would deny mandamus relief in this case in light of the Legislature’s policy decision that is reflected in the 2003 amendments. Under current section 74.351(c), a trial court may grant one 30-day extension,
and an interlocutory ap
peal is not available from such an order.
Under former subsection 13.01(f), a trial court could “for good cause shown after motion and hearing, extend any time period specified in Subsection (d) of this section for an additional 30-days.”
I would not grant any greater remedy by mandamus in cases governed by former article 4590i than is available by interlocutory appeal after the 2003 amendments. Accordingly, I agree that mandamus relief should be denied in this case.
Three other mandamus proceedings arise out of the same suit in the trial court and have been consolidated in this Court.
As in
Rodriguez,
the trial court granted a 30-day extension to file an expert statement because counsel said that he mistakenly believed that the statement met the statutory requirements. Only the 30-day extension is challenged. For the same reasons that I would deny relief in
Rodriguez,
I would deny relief in these cases.
Finally, I concur that relief should be denied in
In re Barker.
The trial court denied the defendant’s motion to dismiss, and the court of appeals denied mandamus relief.
The court of appeals observed that “[n]either party disputes that in this type of matter, this court would have jurisdiction to issue a writ of mandamus if it were justified,”
and the court proceeded to decide the case on the merits. The court of appeals’ opinion quotes from the expert’s statement at length, and I agree with that court that the report met the requirements of former article 4590i.
V
While I appreciate that the Court may fear that granting mandamus relief in health care liability cases could give rise to arguments in other types of cases that we should alter or relax the standards for granting mandamus relief set forth in
Walker v. Packer
any such fear does not justify withholding relief in health care liability cases for at least three reasons. The first is that granting ma6ndamus is entirely consistent with
Walker v. Packer
and cases following it for the reasons discussed above. The second reason is that the Court is free to reject arguments in other types of cases that we should alter or relax the
Walker v. Packer
requirements for mandamus as a general proposition. The third and most important reason is that we are faced with
clearly articulated legislative policy that health care liability claims are to be dismissed unless there is an adequate expert report, and the Legislature has concluded that this requirement is a necessary part of a plan to confront what the Legislature perceives to be a crisis in this state.
⅜ ⅝ ⅝ ⅜ ⅝
For the foregoing reasons, I respectfully dissent from the denial of the petitions for writ of mandamus in
In re Woman’s Hospital of Texas, Inc., In re Horswell, In re Southside Family Care,
and
In re Fort Worth Osteopathic Hospital, Inc.
I concur in the denial of the six other proceedings identified above, but I would deny the petitions based on their merits. I would not deny them on the basis that mandamus relief is never appropriate in cases governed by former article 4590i.