Med Care Emergency Medical Services, Inc., Ericka Gutierrez, and Ramiro Mendoza v. Jimmy Rincon

• Court: Court of Appeals of Texas
• Decided: February 29, 2024
• Docket: 13-23-00353-CV
• Status: Published

Opinion

NUMBER 13-23-00353-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

MED CARE EMERGENCY MEDICAL SERVICES, INC., ERICKA GUTIERREZ, AND RAMIRO MENDOZA, Appellants,

v.

JIMMY RINCON, Appellee.

On appeal from the County Court at Law No. 9 of Hidalgo County, Texas.

MEMORANDUM OPINION Before Chief Justice Contreras and Justices Benavides and Tijerina Memorandum Opinion by Justice Benavides

This is an interlocutory appeal from the trial court’s denial of appellants Med Care

Emergency Medical Services, Inc., Ericka Gutierrez, and Ramiro Mendoza’s (collectively,

Med Care) motion to dismiss appellee Jimmy Rincon’s healthcare liability claims. By two issues that we interpret as one, Med Care contends that the trial court abused its

discretion by denying its motion to dismiss because Rincon failed to serve an expert report

within 120 days of Med Care filing its answer. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351(a). We reverse and remand.

I. BACKGROUND

On July 6, 2020, Rincon filed an original petition against Med Care, alleging that

Med Care’s employees, Gutierrez and Mendoza, were negligent in caring for Rincon while

he was placed on a gurney. This negligence allegedly resulted in Rincon sustaining

injuries. In his petition, Rincon also requested the initial disclosures required by Texas

Rule of Civil Procedure 193.2. See TEX. R. CIV. P. 193.2.

On July 28, 2020, Med Care filed its answer. On November 29, 2021, Med Care

filed a motion to dismiss, arguing that Rincon failed to comply with § 74.351(a)’s expert

report requirement. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (requiring the

plaintiff in a healthcare liability claim to serve on the defendant an expert report within 120

days of the filing of the defendant’s answer). Rincon responded on January 5, 2022,

arguing that Med Care had waived its procedural right to dismissal. As support for his

position, Rincon pointed to: (1) the delay in filing the motion to dismiss; and (2) Med Care’s

participation in discovery by propounding interrogatories, making a request for production,

and providing written discovery. Attached to Rincon’s response were Med Care’s

interrogatories and request for production, which were dated September 16, 2020.

A hearing was initially set on Med Care’s motion for June 8, 2022, but the parties

2 agreed to reset it to June 29, 2022. On June 24, 2022, Med Care filed a reply arguing that

it waited to file a motion to dismiss because of the supreme court’s emergency orders,

which permitted the trial court to extend certain deadlines. See Fortieth Emergency Order

Regarding the COVID-19 State of Disaster, 629 S.W.3d 911, 912 (Tex. 2021). On June

28, 2022, the parties again agreed to reset the hearing on Med Care’s motion to dismiss,

and it was later reset for July 27, 2022. No additional reset order appears in the record.

However, a transcript from the trial court’s August 3, 2022 hearing on Med Care’s motion

to dismiss is included in the record. At the conclusion of the hearing, the trial court took

Med Care’s motion under advisement.

Med Care filed additional authority on August 8, 2022. And Rincon later filed

additional exhibits demonstrating Med Care’s participation in discovery. On June 5, 2023,

Med Care filed a motion for a status hearing. The trial court denied Med Care’s motion to

dismiss on July 17, 2023. This interlocutory appeal followed. See TEX. CIV. PRAC. & REM.

CODE ANN. § 51.014(a)(9).

II. DENIAL OF MOTION TO DISMISS

Med Care argues that the trial court abused its discretion by denying its motion to

dismiss because Rincon failed to serve an expert report within 120 days. Rincon asserts

that Med Care waived its procedural right to dismissal.

A. Standard of Review & Applicable Law

Under the Texas Medical Liability Act (TMLA), a claimant must serve an expert

report on the defendant health care provider within 120 days of the filing of the defendant’s

3 answer, unless the parties otherwise agree in writing to extend the deadline. Id.

§ 74.351(a). “Strict compliance with th[is] provision is mandatory.” Zanchi v. Lane, 408

S.W.3d 373, 376 (Tex. 2013). If this “statute-of-limitations-type deadline” is not met, the

court, upon motion by the defendant health care provider, must dismiss the claim with

prejudice and award the health care provider reasonable attorney’s fees and court costs.

See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b); Ogletree v. Matthews, 262 S.W.3d

316, 319–20 (Tex. 2007).

Waiver is a question of law that we review de novo. Certain Underwriters at Lloyd’s

of London v. Mayse & Assocs., 635 S.W.3d 276, (Tex. App.—Corpus Christi–Edinburg

2021, pet. denied). “[T]he universal test for implied waiver by litigation conduct is whether

the party’s conduct—action or inaction—clearly demonstrates the party’s intent to

relinquish, abandon, or waive the right at issue—whether the right originates in a contract,

statute, or the constitution.” LaLonde v. Gosnell, 593 S.W.3d 212, 219–20 (Tex. 2019).

“This is a high standard.” Id. at 220. “In determining whether a party’s conduct clearly

demonstrates an intent to waive a right, courts must consider the totality of the

circumstances.” Id. “This is a ‘case-by-case’ approach that necessitates consideration of

all the facts and circumstances attending a particular case.” Id.

B. Analysis

1. Discovery Participation

“One factor [in determining waiver] is whether and to what extent the defendant

has participated in pretrial discovery.” Id. at 223. “If all the defendant does is parry a

4 plaintiff’s attacks or attempt to learn more about the case to determine eligibility for

dismissal, engaging in such discovery has little bearing on the defendant’s intent to waive

the right.” Id. at 223–24 (footnotes omitted).

Med Care’s discovery participation is not inconsistent with the intent to assert its

right to dismissal. Rincon’s expert report was due on November 25, 2020, 120 days after

Med Care filed its answer. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a). Med Care

served interrogatories and a request for production on Rincon on September 16, 2020,

prior to the expiration of the expert report deadline. Med Care had no way of knowing on

September 16, 2020, that Rincon would fail to meet this mandatory deadline. See

Jernigan v. Langley, 111 S.W.3d 153, 157 (Tex. 2003) (per curiam) (finding no waiver

where the defendant sought discovery “before he had received the expert reports and

thus before he would have been entitled to move for dismissal”).

The rest of the discovery conducted consisted of Med Care’s responses to

Rincon’s requests, and its attempts to supplement those responses. See LaLonde, 593

S.W.3d at 223–24. Rincon argues that Med Care “kept litigating by supplementing their

discovery responses 216 days after they had an absolute right to dismiss their

case. . . . This supplementation included, among other things, all of the medical records

and medical billing obtained from various medical providers who provided medical

treatment for Rincon’s injuries . . . .” But Med Care was required to provide this

information, regardless of whether a motion to dismiss had been filed and regardless of

whether Rincon had even requested it. See TEX. R. CIV. P. 194.2(b)(10) (requiring parties

5 to produce “all medical records and bills that are reasonably related to the injuries or

damages asserted” “[w]ithout awaiting a discovery request”); id. R. 193.5(a) (“If a party

learns that the party’s response to written discovery was incomplete or incorrect when

made, . . . the party must amend or supplement the response . . . .”); TEX. CIV. PRAC. &

REM. CODE ANN. § 74.351(s) (providing that, until an expert report is served, “all discovery

in a health care liability claim is stayed except for the acquisition by the claimant of

information, including medical or hospital records or other documents or tangible things,

related to the patient’s health care” (emphasis added)). We cannot fault Med Care for

complying with its discovery obligations.

We conclude that this factor does not indicate that Med Care clearly intended to

waive its procedural right to dismissal.

2. Stage of Litigation & Elapsed Time

“Another factor to consider is the point in the litigation process that the defendant

first attempts to seek dismissal.” LaLonde, 593 S.W.3d at 224. “[T]he more developed a

case is, and the closer it is to trial, the stronger the implication becomes that the defendant

intended” to waive its right to dismissal. Id. “The time elapsed in the litigation should also

be taken into consideration. . . . [E]very day a defendant has an absolute procedural right

to dismissal yet does not exercise it is another small but cumulative indication of the

defendant’s intent to waive that right.” Id. at 224–25.

Here, there is no indication that the case was ever set for trial, or even a pre-trial

hearing. There is no scheduling order in the record. In fact, aside from Rincon’s petition,

6 Med Care’s answer, the discovery we have mentioned, and an order transferring the case

between courts, every other pleading in the small record before us relates to Med Care’s

motion to dismiss.

Rincon points to the fact that 369 days elapsed between the expiration of the expert

report deadline and when Med Care filed its motion to dismiss. See id. at 228 (“Even

without a deadline for asserting the right at issue, a significant delay can suffice to

establish waiver.”). We note that in Jernigan, the physician waited “over 600 days after

receiving the [expert] reports to object.” 111 S.W.3d 153, 156 (Tex. 2003). But the

supreme court nonetheless found that the physician “did not waive the right to dismissal.”

Id.

Med Care explains that its delay was due primarily to the Texas Supreme Court’s

COVID-19 emergency orders, which gave the trial court broad discretion to extend the

expert report deadline. See Fortieth Emergency Order Regarding the COVID-19 State of

Disaster, 629 S.W.3d at 912. Several intermediate courts of appeals have concluded that

the supreme court’s COVID-19 emergency orders operated to extend § 74.351(a)’s

expert report deadline. Ajao v. Hall, 654 S.W.3d 22, 28 (Tex. App.—Houston [14th Dist.]

2022, no pet.); Kim v. Ramos, 632 S.W.3d 258, 270 (Tex. App.—Houston [1st Dist.] 2021,

no pet.); see also Hogue v. Steward, No. 11-21-00124-CV, 2022 WL 16640834, at *5

(Tex. App.—Eastland Nov. 3, 2022, no pet.) (mem. op.). Moreover, Rincon conceded

below at the August 3, 2022 hearing that, had Med Care filed a motion to dismiss on the

day immediately after the expert report deadline lapsed, he would have sought an

7 extension of the deadline pursuant to these emergency orders.1

Rincon contends that because he never filed a motion to extend the expert report

deadline prior to it lapsing, the trial court would not have been able to extend the deadline

once it had lapsed, and therefore, Med Care had an absolute right to dismissal on

November 25, 2020. However, this Court has concluded that a trial court could

retroactively extend the expert report deadline pursuant to the supreme court’s COVID-19

emergency orders, even if a motion to extend that deadline was not filed until after the

deadline had lapsed. See Miller v. Castleman, No. 13-21-00334-CV, 2022 WL 16642121,

at *4 (Tex. App.—Corpus Christi–Edinburg Nov. 3, 2022, no pet.) (mem. op.) (“The

emergency order does not specify that the issue of an extension must be brought before

the court or ruled on by the court prior to the deadline lapsing.”); see also Pepper v.

Wilson, No. 02-22-00107-CV, 2023 WL 2534626, at *8 (Tex. App.—Fort Worth Mar. 16,

2023, pet. denied) (mem. op.) (“We agree with Miller that the terms of the Fortieth

Emergency Order do not limit the trial court’s ability to modify or suspend deadlines to

only deadlines that have not passed.”).

The provision of the supreme court’s COVID-19 emergency orders that permitted

trial courts to extend the expert report deadline expired on October 1, 2021. See Fortieth

Emergency Order Regarding the COVID-19 State of Disaster, 629 S.W.3d at 912. Med

Care filed its motion to dismiss approximately two months later, on November 29, 2021.

1 Specifically, counsel for Rincon stated, “We would have objected to that on day 121 and said,

No, Judge, listen. We would like you to consider the fact that the Supreme Court has allowed you in your discretion to extend these deadlines . . . .”

8 We conclude that the stage of litigation and the amount of elapsed time do not clearly

indicate that Med Care intended to waive its procedural right to dismissal. See LaLonde,

593 S.W.3d at 224.

3. Seeking Affirmative Relief & Alternative Dispute Resolution

“Seeking and obtaining affirmative relief from the trial court . . . eschews the

discretion-based remedy that arises from a procedural defect in favor of substantive relief

on the merits.” Id. at 225. Here, Med Care filed a demand for a jury trial with its answer.

But again, this was done prior to the expert report deadline lapsing, so it does not

demonstrate that Med Care intended to waive its right to dismissal. See TEX. CIV. PRAC.

& REM. CODE ANN. § 74.351(a); Jernigan, 111 S.W.3d at 157. Apart from this, there is no

indication in the record that Med Care sought any affirmative relief, other than attorney’s

fees in conjunction with its motion to dismiss. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 74.351(b).

Additionally, “[w]hether the defendant participated in mediation is also a factor, but

it may be of limited value.” LaLonde, 593 S.W.3d at 225. Here, there is no dispute that

the parties have not engaged in mediation or settlement negotiations. Therefore, we

conclude that neither factor clearly indicates Med Care intended to waive its right to

dismissal.

4. Totality of the Circumstances

Based on the totality of the circumstances, we conclude that Med Care’s conduct

does not clearly demonstrate its intent to waive the right to dismissal. See id. at 220.

9 Rincon does not dispute that he has not served an expert report on Med Care.

Accordingly, Med Care’s motion to dismiss should have been granted. See TEX. CIV.

PRAC. & REM. CODE ANN. § 74.351(a), (b). We sustain Med Care’s sole issue on appeal.

III. CONCLUSION

We reverse the trial court’s judgment and remand with instructions for the trial court

to enter an order that: (1) dismisses Rincon’s claims with prejudice; and (2) awards Med

Care its reasonable attorney’s fees and costs of court. See id.

GINA M. BENAVIDES Justice

Delivered and filed on the 29th day of February, 2024.