Patricia Lane v. P. Byon Vaughn

• Court: Court of Appeals of Texas
• Decided: December 14, 2006
• Docket: 11-05-00279-CV
• Status: Published

Opinion

Opinion filed December 14, 2006

Opinion filed December 14, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-05-00279-CV

                                                    __________

                                

PATRICIA LANE ET AL

, Appellants

                                                             V.

                                       P. BYON VAUGHN, Appellee

                                         On Appeal from the 358th District Court

                                                           Ector County, Texas

                                                Trial Court Cause No. D-115,501

                                              M E M O R A N D U M   O P I N I O N

This case involves the dismissal of a health care liability claim.  The claims against Dr. P. Byon Vaughn were dismissed with prejudice after the trial court found that the expert report failed to satisfy the requirements of former Tex. Rev. Civ. Stat. art. 4590i, ' 13.01, (1997) (repealed effective August 31, 2003) (current version at Tex. Civ. Prac. & Rem. Code Ann. ' 74.351 (Vernon Supp. 2006)).  The provisions of former Article 4590i, section 13.01 are applicable to this case because the petition was filed prior to repeal.^[1]  Appellants^[2] contend that the trial court erred in dismissing their claims against Dr. Vaughn.  We affirm the dismissal. 

A trial court=s ruling on a motion to dismiss a health care liability claim is reviewed for an abuse of discretion.  Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 877‑78 (Tex. 2001).  A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner or without reference to any guiding rules or principles.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241‑42 (Tex. 1985).  In determining whether an expert report constitutes a good‑faith attempt to comply with the statute, a trial court is limited to a review of the four corners of the report.  Palacios, 46 S.W.3d at 878. 

The plaintiff in a medical malpractice suit must furnish each defendant physician and health care provider with an expert report or voluntarily nonsuit the action.  Former Article 4590i, section 13.01(d); Palacios, 46 S.W.3d at 877.  The expert report must provide:

[A] fair summary of the expert=s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed. 

Former Article 4590i, section 13.01(r)(6).  If a plaintiff timely files an expert report and the defendant moves to dismiss because of the report=s inadequacy, the trial court must grant the motion Aonly if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the definition of an expert report in Subsection (r)(6) of this section.@  Former Article 4590i, section 13.01(l).

To constitute a good-faith effort, the report must provide enough information to inform the defendant of the specific conduct called into question and to provide a basis for the trial court to conclude that the claims have merit.  Palacios, 46 S.W.3d at 879.  The report need not marshal all the plaintiff=s proof, but it must include the expert=s opinion on each of the three elements that the statute identifies:  standard of care, breach, and causal relationship.  Id. at 878.  

In this case, appellants filed the expert report of Dr. Diana Fite, a board-certified emergency physician.  Dr. Fite concluded that the emergency care received by

Patricia Lane

at Medical Center Hospital was deficient and led directly to the stroke that resulted in her death.  Nowhere in the report does Dr. Fite even mention Dr. Vaughn=s name.  Dr. Fite=s report also fails to set out the applicable standard of care.  Because the report did not name Dr. Vaughn or set out the applicable standard of care, it did not inform Dr. Vaughn of the specific conduct called into question.  See Jernigan v. Langley, 195 S.W.3d 91, 93-94 (Tex. 2006);  Villa v. Hargrove, 110 S.W.3d 74, 79 (Tex. App.CSan Antonio 2003, pet. denied); Eichelberger v. St. Paul Med. Ctr., 99 S.W.3d 636, 639 (Tex. App.CDallas 2003, pet. denied).  After reviewing Dr. Fite=s report, we conclude that the trial court could have reasonably determined that the report, which omitted required elements, did not represent a good‑faith effort to comply with Article 4590i, section 13.01.

Appellants also argue that the trial court erred in failing to grant an extension of time to file an amended expert report pursuant to Article 4590i, section 13.01(g).  Appellants= attorney asserted that the failure to timely file a report complying with the statute was not the result of conscious indifference and was not intentional, that he thought Dr. Fite=s report was sufficient, that he did request a more specific report from Dr. Fite but had never received one from her, and that he thought his co-counsel had taken care of the problem.  The record shows that one extension had already been granted  and that appellants= petition had been filed for over 15 months when they requested a second extension.  Appellants= attorney=s mistaken belief that the report was not deficient Adoes not negate a finding of >intentional or conscious indifference.=@  Walker v. Gutierrez, 111 S.W.3d 56, 65 (Tex. 2003).  Based on the circumstances in this case, we cannot conclude that the trial court abused its discretion in failing to grant a second extension of time to file an expert report that complied with the statute or in granting Dr. Vaughn=s motion to dismiss.  Appellants= sole issue on appeal is overruled. 

Dr. Vaughn presents a cross-issue in his brief in which he contends that the trial court abused its discretion by refusing to enforce an award of attorney=s fees pursuant to Article 4590i, section 13.01(e).  The record shows that the trial court did not award any attorney=s fees to Dr. Vaughn when it granted his motion to dismiss.  Dr. Vaughn is, therefore, requesting that we alter the trial court=s judgment and grant him more favorable relief than the trial court did.  We may not do so without just cause because Dr. Vaughn did not file a notice of appeal.  Pursuant to Tex. R. App. P. 25.1(c), a party seeking to alter the trial court=s judgment must file a notice of appeal.  Lubbock County, Tex. v. Trammel=s Lubbock Bail Bonds, 80 S.W.3d 580, 584 (Tex. 2002).  Also, an Aappellate court may not grant a party who does not file a notice of appeal more favorable relief than did the trial court except for just cause.@  Rule 25.1(c). 

Dr. Vaughn contends that he was effectively precluded from filing a cross-notice of appeal by appellants= failure to timely serve Dr. Vaughn with a copy of their notice of appeal.  Appellants= notice of appeal contains a certificate of service reflecting that appellants= attorney faxed the notice of appeal to Dr. Vaughn=s attorney.  Dr. Vaughn=s attorney avers that she received no such fax. Whether Dr. Vaughn was properly served with the notice of appeal is not dispositive of the issue in this case.  Even if Dr. Vaughn was not properly served, no just cause exists to review Dr. Vaughn=s cross-issue.  Dr. Vaughn had 90 days after the judgment in which to file a notice of appeal.  Tex. R. App. P. 26.1.  The 90-day time period provided for in Rule 26.1(a) was longer than the period would have been under Rule 26.1(d), which would have allowed Dr. Vaughn 14 days to file a notice of appeal after appellants filed their notice of appeal, because appellants filed their notice of appeal 73 days after final judgment.  We hold that Dr. Vaughn waived appellate review of his cross-issue by failing to file a notice of appeal.  See Trammel=s, 80 S.W.3d at 584; CHCA E. Houston, L.P. v. Henderson, 99 S.W.3d 630, 636 (Tex. App.CHouston [14th Dist.] 2003, no pet.).  Dr. Vaughn=s cross-issue is overruled.

The judgment of the trial court is affirmed.

AUSTIN McCLOUD

SENIOR JUSTICE

December 14, 2006

Panel consists of:  McCall, J.,

Strange, J., and McCloud, S.J.^[3]

---

^[1]We note that this is not an interlocutory appeal and that the dismissal became a final, appealable judgment after judgment was rendered as to the other defendant who is not a party to this appeal. 

^[2]Appellants are

Patricia Lane

,

Kenneth Lane

, Vickie Rose,

Jeffery C. Lane

,

Kenneth O. Lane

,

Wendy Lane

, and

Rhonda Lane

.

^[3]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.