Opinion

Opinion issued February 6, 2009

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-06-01038-CV

____________

ST. LUKE’S EPISCOPAL HOSPITAL and THE TEXAS HEART

INSTITUTE, Appellants

V.

RAYMON POLAND, INDIVIDUALLY AND AS INDEPENDENT

ADMINISTRATOR OF THE ESTATE OF JESSIE POLAND, ROBERT

MARTIN, and FRANK MARTIN, Appellees

On Appeal from 152nd District Court

Harris County, Texas

Trial Court Cause No. 2006-38894

OPINION DISSENTING FROM THE DENIAL OF

EN BANC RECONSIDERATION

In its opinion, the panel erroneously concludes that appellees, Raymon Poland,

individually and as independent administrator of the estate of Jessie Poland, Robert

Martin, and Frank Martin (“the Polands”) , untimely served their medical liability

expert report on the attorneys of appellants, St. Luke’s Episcopal Hospital (“St.

Luke’s”) and The Texas Heart Institute (“THI”). See Act of June 2, 2003, 78th Leg.,

R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847 , 875 [hereinafter “former section

74.351(a)”] (amended 2005) (current version at Tex. Civ. Prac. & Rem. Code Ann.

§ 74.351(a) (Vernon Supp. 2008)) .

In fact, as expressly found by the trial court, the Polands had already served

their expert’s report on the attorneys for St. Luke’s and THI prior to the Polands’

filing of their health care liability lawsuit.

Regardless, the panel reasons that because the Polands did not, after filing their

health care liability claims in court, serve yet another copy of the report to the

attorneys, who already had the report in their possession, the Polands’ claims for the

wrongful death of Mrs. Poland must be dismissed with prejudice, and the Polands

must pay the attorneys’ fees of St. Luke’s and THI. See Tex. Civ. Prac. & Rem.

Code Ann. § 74.351(b) (Vernon Supp. 2008) . In doing so, the panel misinterprets

the plain language of former section 74.351(a), disregards the legislative purposes of

the statute, disregards the fundamental purpose of rule 21a, and misapplies the rule,

resulting in a serious error, requiring en banc reconsideration of the case. See Tex.

R. App. P . 41.2(c).

Factual and Procedural Background

The pertinent facts of the case are straight forward and undisputed. St. Luke’s,

on August 11, 2003, admitted Mrs. Poland for elective mitral valve

replacement

surgery. Although Mrs. Poland had been taking Coumadin for mitral valve

regurgitation, she stopped taking Coumadin on August 9, 2003 in preparation for the

surgery. Due to bleeding complications that occurred during the surgery, Mrs. Poland

was twice taken back into surgery, and she died on August 20, 2003 as a result of the

complications.

Thereafter, the Polands’ attorneys complied with the notice provision of

chapter 74 of the Texas Civil Practice and Remedies Code.

Having been in contact

with the attorneys for St. Luke’s and THI, the Polands’ attorneys, by a letter faxed on

May 6, 2005, informed the St. Luke’s and THI attorneys that they had “several issues

that we wish to address with you and risk management prior to filing suit.” They

attached to their letter the May 2, 2005 “medical evaluation of our expert witness , Dr.

Dennis Moritz, MD,” a Board Certified Cardiac Surgeon. (Emphasis added.)

Attached to Dr. Moritz’s report was his lengthy curriculum vitae.

In sum, Dr. Moritz, in his expert report, stated that the pertinent standard of

care in regard to surgery on a patient on Coumadin “is to stop the Coumadin and

allow the coagulation profile to return to normal.” He also stated, “Performing any

elective surgery on a fully anticoagulated patient is a breach of the standard of care.

This is particularly true for operations such as heart surgery in which bleeding is

always a potential hazard.” Dr. Moritz noted that it “is essential to check the

[Prothrombin Time (“PT”) and International Normalized Ratio (“INR”)] before

surgery and defer surgery until it returns to near normal,” and that Mrs. Poland’s

PT/INR “was not only elevated, but was well above the therapeutic range at the time

of admission.” He emphasized that “[t]he dangerous [PT/INR] level was confirmed

. . . , but the operation proceeded nonetheless.” He concluded,

It is my opinion based on a reasonable degree of medical probability that

proceeding with this operation in a patient who was fully anticoagulated

with Coumadin led to bleeding, multiple transfusions of blood products,

multiple organ failure, and finally death.

The principle of not doing elective surgery on a fully anticoagulated

patient is so basic to surgical principles, that I feel this breach of the

standard of care must also reflect a serious system failure at this

hospital. Many people had knowledge, or should have had knowledge

of Mrs. Poland’s PT/INR. Any of these could have and should have

initiated action to cancel the case. This failure resulted in Mrs. Poland’s

death.

After receiving Dr. Moritz’s expert report, the attorneys for St. Luke’s and THI,

by letter dated May 19, 2005, responded that they would agree to “a pre-suit

settlement conference . . . contingent on the participation of the other healthcare

providers implicated in Dr. Dennis Moritz’s report.”

On October 24, 2005, the Polands filed their original petition, alleging, as

noted by the panel,

that, at the time of surgery, [Mrs.] Poland’s blood contained a level of

Coumadin that the health-care providers should have known rendered

her blood fully anti-coagulated and, thus, rendered surgery dangerous.

The surgery was nonetheless performed; Jessie Poland bled internally;

and she died several days later of multi-system organ failure.

St. Luke’s Episcopal Hosp. v. Poland , No. 01-06-01038-CV, 2009 WL _______ , at

*__ (Tex. App.—Houston [1st Dist.] Feb. 6, 2009, no pet. h.) .

Subsequently, St. Luke’s and THI moved to dismiss the Polands’ health care

liability claims on the grounds that the Polands had failed to timely serve them with

Dr. Moritz’s expert report and that Dr. Moritz’s expert report is “legally insufficient.”

See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847 ,

875 (amended 2005); Tex. Civ. Prac. & Rem. Code Ann. § 74.351(b). Concluding

that the Polands had in fact timely served St. Luke’s and THI with Dr. Moritz’s expert

report and that the report is sufficient, the trial court entered its October 30, 2006

interlocutory order denying St. Luke’s and THI’s motion to dismiss the Polands’

health care liability claims.

Section 74.351(a)

In their first issue, St. Luke’s and THI argue that the trial court erred in denying

their motion to dismiss the Polands’ health care liability claims because, under former

section 74.351(a), “an expert report must be served within 120-days after filing a

lawsuit asserting a health care liability claim.” (Emphasis added.) St. Luke’s and

THI do not claim that their attorneys did not actually receive the report. Rather, they

assert,

What is in dispute is when the Polands could first “serve” their report

within the meaning of section 74.351(a). Under section 74.351(a), there

should be no doubt the Polands had to serve their expert report between

the time they filed their lawsuit on October 24, 2005 and the deadline

of February 21, 2006 . . . . Despite the statute’s plain language , the

Polands contend their letter from Dr. Moritz satisfied their statutory

burden even though it was sent long before suit was filed and was in

relation to a possible pre-suit settlement conference.

(Emphasis added.) The panel agrees, holding,

[T]he plain language of former section 74.351(a) and [Texas Rule of

Civil Procedure] 21a, which it implicitly incorporates by use of the term

‘serve’ simply does not contemplate ‘service’ of the expert’s report and

[ curriculum vitae ] on a physician or health-care provider until after a

claim has been filed in court against that person or entity . . . .

Accordingly, the provision of an expert report to a physician or health-care provider before a claim is filed against that individual or entity in

court does not comply with former section 74.351(a)’s service

requirement; instead, the 120-day period in which an expert report must

be served is triggered under former section 74.351(a) by the filing of a

health-care-liability claim against that person or entity.

St. Luke’s Episcopal Hosp. , 2009 WL _______ , at *__ (emphasis added) (citations

omitted) .

The panel’s erroneous holding and reasoning is based on its recent holding in

Poland v. Ott , No. 01-07-00199-CV, 2008 WL5392015 (Tex. App.—Houston [1st

Dist.] Dec. 19, 2008, no pet. h.) , which was based on another panel’s holding in

University of Texas Health Science Center at Houston v. Gutierrez , 237 S.W.3d 869,

873 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). In Gutierrez , this Court held

that:

Given the express legislative intent of Chapter 74 and the intentional

legislative act of replacing the word “furnish” with “serve” in section

74.351(a), we determine that proper service under rule 21a must occur

to effectuate the intent of Chapter 74 as a whole, and section 74.351(a)

specifically.[

]

Id . (emphasis added). In Ott , the panel conceded:

We reach this conclusion despite the fact that, as the [Polands] note, the

section requires service “ not later than ” 120 days after a claim is filed,

rather than requiring service within 120 days after the claim is filed .

Ott , 2008 WL 5392015, at *7 (emphasis added).

Although St. Luke’s and THI and the panel state that the “plain language” of

former section 74.351(a) actually requires that a medical liability expert report be

served only after the filing of a lawsuit asserting a health care liability claim, nothing

in the plain language of the statute so states. Former section 74.351(a) provides,

In a health care liability claim, a claimant shall, not later than the 120th

day after the date the claim was filed , serve on each party or the party’s

attorney one or more expert reports, with a curriculum vitae of each

expert listed in the report for each physician or health care provider

against whom a liability claim is asserted. The date for serving the

report may be extended by written agreement of the affected parties.

See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847 ,

875 (amended 2005). Thus, as conceded by the panel in Ott , former section 74.351(a)

actually requires service “‘ not later than ’ 120 days after a claim is filed,” not “ within

120 days after the claim is filed .” Ott , 2008 WL 5392015, at *7 (emphasis added) .

The Texas Supreme Court has explained,

When interpreting statutes, we try to give effect to legislative intent.

“Legislative intent remains the polestar of statutory construction.”

However, it is cardinal law in Texas that a court construes a statute,

“first by looking to the plain and common meaning of the statute’s

words.” If the meaning of the statutory language is unambiguous, we

adopt, with few exceptions, the interpretation supported by the plain

meaning of the provision’s words and terms. Further, if a statute is

unambiguous, rules of construction or other extrinsic aids cannot be

used to create an ambiguity.

Fitzgerald v. Advanced Spine Fixation, Sys., Inc. , 996 S.W.2d 864 , 865–66 (Tex.

1999) (footnotes omitted).

Here and in Ott , the panel has turned to Texas Rule of Civil Procedure 21a and

created such an ambiguity. See Tex. R. Civ. P. 21a. Rather than focus on the plain

and common meaning of the word “serve,” the panel reasons that former section

74.351(a) “implicitly incorporates” rule 21a, which does not, in the words of the

panel, “contemplate ‘service’” of any pleading, plea, motion, or other form of request

required to be served under rule 21 until after a claim has been filed in a court. St.

Luke’s Episcopal Hosp. , 2009 WL _______ , at *__. Thus, the panel, in Ott ,

concluded that delivery of an expert report to a defendant physician or health care

provider “before a health-care liability claim is filed in court against the physician or

health care provider does not meet former section 74.351(a)’s service requirements.”

Ott , 2008 WL5392015, at *6 .

The word “serve,” as a verb, is simply defined as to “make legal delivery of (a

notice or process)” and to “present (a person) with a notice or process as required by

law.” Black’s Law Dictionary 1372 (7th ed. 1999). Thus, all that former section

74.351(a) requires is that a health care liability claimant “deliver” or “present” each

party or the party’s attorney with an expert report and curriculum vitae of each expert

listed in the report for each physician or health care provider against whom a liability

claim is asserted by the hard-and-fast deadline . See Act of June 2, 2003, 78th Leg.,

R.S., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847 , 875 (amended 2005). Only if a

defendant physician or health care provider “has not been served” with an expert

report by the deadline, “shall” a trial court then order the claim dismissed with

prejudice and award attorney’s fees and costs to the pertinent defendants. See Tex.

Civ. Prac. & Rem. Code Ann. § 74.351(b) .

Rule 21a does not define the word “serve,” which, as noted above, simply

means to “deliver”; rather, it provides:

Every notice required by these rules, and every pleading, plea, motion

or other form of request required to be served under Rule 21, other than

the citation to be served by the filing of a cause of action and except as

otherwise expressly provided in these rules, may be served by delivering

a copy to the party to be served, or the party’s duly authorized agent or

attorney of record , as the case may be, either [1] in person or by agent

or by courier receipted delivery or [2] by certified or registered mail, to

the party’s last known address, or [3] by telephonic document transfer

to the recipient’s current telecopier number, or [4] by such other manner

as the court in its discretion may direct.

Tex. R. Civ. P . 21a (emphasis added). The plain purpose of rule 21a is to ensure that

parties receive, by delivery, “notice” and “every pleading, plea, motion or other form

of request required to be served under Rule 21.” See Tex. R. Civ. P . 21a. It clearly

gives trial courts discretion to direct other methods of delivery. Tex. R. Civ. P . 21a .

More importantly, a s explained by the Fort Worth Court of Appeals:

The purpose of the rules relating to service and notice is to make

reasonably certain that all parties to a suit are notified as to the date and

time the court has set their matter down for hearing and determination.

This is in order that the parties, individually or by counsel may appear,

and present their side of the case and to take such action as is deemed

appropriate to protect their interest. Thus, service and notice in a

technical sense is incidental where the main purpose of obtaining the

appearance of all parties and their participation is accomplished .

Hill v. W. E. Brittain, Inc ., 405 S.W.2d 803, 807 (Tex. App.—Fort Worth 1966, no

writ) (emphasis added).

In Hill , although the Hills did not deny that they were actually “served with”

a copy of a motion for judgment notwithstanding the verdict and notice of a hearing

on the motion, they complained because it was not sent to them “by registered mail

as provided by Rule 21a.” Id . The court concluded that “prima facie evidence of

service” and the appearance and participation of the Hills at the hearing demonstrated

that the Brittain’s notice by mail was adequate. Id . The court explained that the Hills

“were in no way prejudiced.” Id . Moreover, the Hills made “no showing that they

were denied any rights or privileges or that had service been proper, assuming it was

not, that a different result would have obtained.” Id . In sum, nothing suggested that

the Hills “could or would have made a better showing or presented a stronger case

had they received notice by registered or certified mail rather than by regular mail.”

Id .

Likewise, in Ott , although Dr. Ott complained that neither he nor his attorneys

received the Polands’ expert report directly from the Polands after they had filed their

lawsuit, Dr. Ott made no showing of any prejudice . The Polands’ service of the

expert report upon Dr. Ott’s insurance carrier prior to the filing of their lawsuit, as

requested by the insurance carrier, was adequate. Ott , 2008 WL 5392015 , at *18

(Jennings, J. dissenting).

Here, unlike in Ott , the Polands’ attorneys, having been in contact with the

attorneys for St. Luke’s and THI, by a letter faxed on May 6, 2005, informed the St.

Luke’s and THI attorneys that they had “several issues that we wish to address with

you and risk management prior to filing suit” and attached to their letter the May 2,

2005 “medical evaluation of our expert witness , Dr. Dennis Moritz, MD,” a Board

Certified Cardiac Surgeon. After actually receiving Dr. Moritz’s expert report, the

attorneys for St. Luke’s and THI, by letter dated May 19, 2005, responded that they

would agree to “a pre-suit settlement conference . . . contingent on the participation

of the other healthcare providers implicated in Dr. Dennis Moritz’s report.” Thus,

there is no doubt at all that the attorney’s for St. Luke’s and THI had in fact received

Dr. Moritz’s report. St. Luke’s and THI simply cannot claim any prejudice under

these circumstances, and the Polands’ service of the expert report directly upon

counsel for St. Luke’s and THI was more than adequate.

Relying on rule 21a to fault the Polands for not serving yet another copy of

their expert report on the St. Luke’s and THI attorneys after filing suit not only results

in a miscarriage of justice, but actually goes against the very purpose of our rules of

civil procedure upon which the panel relies to reach its holding. We are to “liberally”

construe the rules because “[t]he proper objective of rules of civil procedure is to

obtain a just, fair, equitable and impartial adjudication of the rights of litigants under

established rules of substantive law.” Tex. R. Civ. P . 1. The general commentary to

rule 1 expressly warns:

Any procedural device or rule therefore, which impedes the

investigation or the evaluation of the facts or the awarding of the just

consequences thereon, is incompatible with an ideal procedure. No

mere rule of procedural form or courtesy should be allowed to delay or

control the disposition of the litigation upon its merits.

No judgment should ever be rendered in the trial court which is based

upon mere procedural technicalities . . . . There is no vested right in

rules of procedure; much less is there any vested right in procedural

errors.

Tex. R. Civ. P . 1–General Commentary–1966 (Vernon 2003). This is especially true

when litigants like St. Luke’s and THI have not been prejudiced by their attorneys’

receipt of the expert report pre-suit.

Nothing in former section 74.351(a) precludes a claimant from serving an

implicated physician or health care provider with her expert report and curriculum

vitae along with an original petition or prior to the actual filing of such a claim in

court in an effort to reach a settlement. When a claimant serves her expert report on

an implicated physician or health care provider along with the filing of her health care

liability claims or prior to the filing of those claims in court, then a defendant can, as

did St. Luke’s and THI here, object to the report after suit is filed. Here, regardless,

the plain language of former section 74.351(a) simply does not render untimely the

Polands’ delivery of their expert’s report on the attorneys of St. Luke’s and THI. It

certainly does not evidence a legislative intent that a claimant’s failure to serve yet

another copy of the same expert report on the same opposing counsel after the filing

of a lawsuit requires that the trial court dismiss the lawsuit.

The purpose behind the Legislature’s requirement of “early expert reports” is

not to create a “gotcha”; it is to “stem frivolous suits against health care providers.”

Lewis v. Funderburk , 253 S.W.3d 204, 205 (Tex. 2008). As recently noted by our

sister court, in enacting Chapter 74, the Legislature sought to “‘(1) reduce excessive

frequency and severity of health care liability claims through reasonable

improvements and modifications in Texas insurance, tort, and medical practice

systems;’ and ‘(2) decrease the cost of those claims and ensure that awards are

rationally related to actual damages.’” Mokkala v. Mead , 178 S.W.3d 66, 74 (Tex.

App.—Houston [14th Dist.] 2005, pet. denied) (quoting Act of June 2, 2003, 78th

Leg., R.S. ch. 204, § 10.11(b), 2003 Tex. Gen. Laws 847 , 884). In presenting House

Bill 4, which included the pertinent language in section 74.351, Representative Joe

Nixon, Chair of the House Committee on Civil Practices, explained,

House Bill 4 . . . is designed to promote fairness and efficiency in civil

lawsuits, protect Texas citizens and Texas courts from abusive litigation

tactics , remove incentives in the system that are causing unwarranted

delay and expense. House Bill 4—its purpose is to restore the needed

balance in our court system so that it can operate more efficiently and

more fairly and less costly.

Id. (citing Hearings on Tex. H.B. 4 Before the House Comm. on Civil Practices , 78th

Leg., R.S. 1 (Feb. 26, 2003) (statement of Rep. Nixon) (transcript available from

Capitol Research Services, Austin, Texas)) (emphasis added). Representative Nixon

emphasized that “the hard reality is we just need to make a hard and fast deadline,

like we do on statue [sic] of limitations —as we do on other requirements.” Id . (citing

Debate on Tex. H.B. 4 on the Floor of the House, 78th Leg., R.S. 317 (March 19,

2003) (statement of Rep. Nixon) (transcript available from Capitol Research Services,

Austin, Texas)) (emphasis added) .

Here, not only did the Polands meet former section 74.351(a)’s deadline, they,

by providing the expert report of Dr. Moritz directly to the attorneys of St. Luke’s and

THI prior to filing their health care liability lawsuit, essentially placed all of their

cards on the table to effectuate an early settlement of the case. As noted by the trial

court when addressing the Polands’ attorneys at the hearing on the motion to dismiss:

What I will do is I will issue an order one way or the other. . . . Because

this issue needs to be decided. Because lawyers usually don’t do what

you have done. And I feel like plaintiffs were attempting to do what the

statute attempts to require of them . And usually the case is plaintiffs are

trying to do the least, and defendants file a motion to dismiss in that

situation.

(Emphasis added.)

Setting aside the trial court’s express finding that the Polands had timely served

their expert report on the St. Luke’s and THI attorneys and then dismissing the

Polands’ claims with prejudice and making them pay the attorney’s fees of St. Luke’s

and THI under these circumstances constitutes a misapplication of former section

74.351(a). In doing so, the panel misinterprets the plain language of the statute and

goes against its purpose to stem frivolous lawsuits against health care providers while

promoting fairness and efficiency in such lawsuits.

Certainly, a health care liability claimant’s certification of compliance with rule

21a in delivering an expert report to a defendant doctor or health care provider would

entitle the claimant to “a presumption of delivery” of the report. However, the bottom

line is that the claimant need not rely on such “a presumption of delivery” after

establishing that the defendants’ attorneys were actually served with the report.

Accordingly, this panel’s statement in the instant case and in Ott that former

section 74.351(a) implicitly incorporates the requirements of rule 21a and the panel’s

statement in Gutierrez that “proper service under rule 21a must occur to effectuate

the intent of Chapter 74 as a whole, and section 74.351 specifically” are in serious

error. See St. Luke’s Episcopal Hosp. , 2009 WL _______ , at *__; Ott , 2008 WL

5392015 , at *16 ; Gutierrez , 237 S.W.3d at 873 .

Conclusion

In sum, the En Banc Court should hold, as did the trial court, that the Polands

timely served St. Luke’s and THI with the health care liability expert report of Dr.

Moritz, overrule St. Luke’s and THI’s first issue, and address St. Luke’s and THI’s

second issue. Moreover, the En Banc Court should overrule this Court’s holdings in

Ott and Gutierrez that “proper service under rule 21a must occur to effectuate the

intent of Chapter 74 as a whole, and section 74.351 specifically.” Ott , No., 2008 WL

5392015 , at *16 ; Gutierrez , 237 S.W.3d at 873 . Accordingly, I respectfully dissent

from the denial of en banc consideration of this case.

Terry Jennings

Justice

Panel consists of Justices Taft, Keyes, and Alcala.

Appellants moved for rehearing to the panel . See Tex. R. App. P. 49.1 . Appellees

moved for rehearing to the panel and for en banc reconsideration to the Court . See

Tex. R. App. P. 49.1, 49.7.

The panel denied appellees’ motion for rehearing addressed to it, leaving pending

appellants’ motion for rehearing and appellees’ motion for en banc reconsideration

and extending the Court’s plenary power over the case. See Tex. R. App. P. 19.1,

49. 3 .

The Court granted appellants’ motion for rehearing and withdrew its opinion and

judgment issued February 14, 2008, thus rendering moot appellees’ motion for en

banc reconsideration. See Brookshire Bros., Inc. v. Smith , 176 S.W.3d 30 , 41 n.4

(Tex. App.—Houston [1st Dist.] 2004, pet. denied) (op. on reh’g).

After the Court withdrew its February 14, 2008 opinion and judgment, d uring the

pendency of the Court’s plenary power over the case, and before another opinion and

judgment had issued in the case, en banc consideration was requested from within the

Court. See Tex. R. App. P. 41.2(c).

Chief Justice Radack and Justices Taft, Jennings, Keyes, Alcala, Hanks, Higley, and

Bland participated in the vote to determine en banc consideration.

A majority of the Justices of the Court voted to deny en banc consideration. See id.

Justice Taft, concurring in the denial of en banc consideration. See Tex. R. App. P.

47.5.

Justice Jennings, joined by Justice Bland, dissenting from the denial of en banc

consideration. See id.