Sanchez v. Martin

378 S.W.3d 581, 2012 WL 3636903, 2012 Tex. App. LEXIS 7161
CourtCourt of Appeals of Texas
DecidedAugust 24, 2012
DocketNo. 05-11-01327-CV
StatusPublished
Cited by31 cases

This text of 378 S.W.3d 581 (Sanchez v. Martin) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sanchez v. Martin, 378 S.W.3d 581, 2012 WL 3636903, 2012 Tex. App. LEXIS 7161 (Tex. Ct. App. 2012).

Opinion

OPINION

Opinion By Justice FITZGERALD.

This is an interlocutory appeal from an order denying appellants’ motions to dismiss under the expert-report provisions of Chapter 74 of the Texas Civil Practice and Remedies Code. We reverse and remand.

I. BACKGROUND

Our factual recitation is based upon ap-pellees’ live pleading. Appellees Nickolas and Teresa Martin are the survivors of decedent Jim Martin. Decedent received a liver transplant in May 2004. The liver he received was infected with rabies, and decedent died of rabies in June 2004. The donor was a “high-risk donor” who had been incarcerated up until two weeks before his fatal illness. A urine drug screen on the donor was positive for cocaine and cannabinoids. Appellant Sanchez was the surgeon who performed the liver-transplant surgery on decedent, appellant Randall was the transplant surgeon who accepted the liver from Southwest Transplant Alliance for decedent, and appellant Baylor was the recipient institution and transplant coordinator for decedent. The Martins have asserted that all three appellants are liable for decedent’s death on theories of failure to obtain informed consent, general negligence, gross negligence, and fraud or intentional misrepresentation.

The procedural history of this case is lengthy. The Martins filed suit on May 4, 2006. They named only one defendant, Southwest Transplant Alliance, in their original petition. On July 10, 2006, they filed a first amended petition in which they added appellants as defendants. They alleged that appellants negligently failed to get decedent’s informed consent, and they also alleged that Baylor negligently failed to have adequate procedures in place regarding informed consent with respect to high-risk donors. The Martins also alleged gross negligence against all defendants. In September 2006, the Martins furnished appellants with two reports by the same expert, Youmin Wu, M.D. The reports were dated September 7, 2006, and were identical except that one included a reference to appellant Randall and the other did not. Appellants filed objections to the Wu reports and later filed motions to dismiss the case based on the expiration of the statutory deadline for providing an expert report and the alleged inadequacy of the Wu reports. On December 28, 2006, the Martins filed a second amended petition in which they added claims for fraud and intentional misrepresentation.

The trial judge heard appellants’ motions to dismiss on January 4, 2007. At that hearing, the Martins argued, among other things, that they had not been given a copy of decedent’s consent form until appellants filed their motions to dismiss, and consequently Wu had been unable to address the consent form in his reports. The trial judge expressed her reluctance to grant motions to dismiss in light of the late production of the consent form, and the hearing ended without a ruling on the record. The trial judge did not sign a written order on the motions to dismiss or a written order giving the Martins more time to furnish expert reports.

On or about February 2, 2007, the Martins furnished appellants with a third report by Wu. Each appellant filed an objection to the third Wu report, and each appellant subsequently filed a second motion to dismiss the case. The Martins filed responses to the second motions to dismiss, and the first hearing on those mo[587]*587tions was held on October 3, 2007. At the hearing, it was discussed that two other health care liability cases, called Biggs and Hightower, were currently pending in other courts and involved organ transplants from the same donor. Moreover, the Biggs case had recently resulted in an appellate decision, and a motion for rehearing had been filed in that appeal. See Baylor Univ. Med. Ctr. v. Biggs, 237 S.W.3d 909 (Tex.App.-Dallas 2007, pet. denied) (Biggs I)1 The Martins’ counsel suggested that the case be abated pending the final appellate disposition of Biggs I. After the hearing, the trial judge signed an order administratively closing the case pending the final resolution of Biggs I.

In August 2008, the Texas Supreme Court denied the petition for review in Biggs I. In January 2009, a new trial judge assumed the bench in the 95th Judicial District Court and began presiding over this case. The new trial judge signed an order reopening the case in June 2010. In October 2010, the judge signed an order substituting a new attorney for the Martins’ prior attorney, reciting that the Martins’ prior attorney had resigned his law license and was no longer eligible to practice law in Texas. Meanwhile, a second appeal took place in the Biggs case, and this Court issued its opinion in that appeal on March 31, 2011. Biggs v. Baylor Univ. Med. Ctr., 336 S.W.3d 854 (Tex.App.-Dallas 2011, pet. denied) (Biggs II).

The trial judge set appellants’ second motions to dismiss for hearing on May 4, 2011. The morning of the hearing, the Martins filed a third amended petition. Therein they reiterated their already-pleaded claims and added a general negligence claim against appellants based on the theory that appellants breached the standard of care by performing or facilitating the liver transplant in question regardless of whether informed consent was obtained. The trial judge heard the second motions to dismiss and orally denied the motions in their entirety at the end of the hearing. The judge later signed a written order memorializing his ruling, and this interlocutory appeal ensued. See Tex. Civ. PRAc. & Rem.Code Ann. § 51.014(a)(9) (West Supp.2012). Meanwhile, on August 12, 2011, this Court issued an opinion in the other case involving an organ transplant from the same donor. Hightower v. Baylor Univ. Med. Ctr., 348 S.W.3d 512 (Tex.App.-Dallas 2011, pet. denied).

II. STANDARD OF REVIEW

We review the trial judge’s determination of the adequacy of an expert report for abuse of discretion. Id. at 517. A trial judge has no discretion in determining what the law is or in applying the law to the facts. Biggs I, 237 S.W.3d at 916. A clear failure by the trial judge to analyze or apply the law correctly constitutes an abuse of discretion. Id.

III. Analysis

Baylor raises two issues on appeal. In its first issue, it argues that the trial judge abused his discretion by not dismissing the Martins’ informed-consent claims. In its second issue, it argues that the trial judge abused his discretion by not dismissing the Martins’ other claims. Sanchez and Randall filed a joint brief raising a single issue, whether the trial judge erred in failing to dismiss the lawsuit against them.

A. Law governing expert reports and informed-consent claims

Chapter 74 of the civil practice and remedies code governs health care [588]*588liability claims. Brewster v. Columbia Med. Ctr. of McKinney Subsidiary, L.P., 269 S.W.3d 314, 316 n. 3 (Tex.App.-Dallas 2008, no pet.).

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Cite This Page — Counsel Stack

Bluebook (online)
378 S.W.3d 581, 2012 WL 3636903, 2012 Tex. App. LEXIS 7161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sanchez-v-martin-texapp-2012.