Opinion

No. 04-02-00213-CV

Lamar VILLA, Individually and as Representative of the Estate of Nora Villa, deceased;

Lamar Villa as Next Friend of Olivia Villa; Raul David Villa and Tomas Javier Villa,

Appellants

v.

Lubrett HARGROVE, M.D., and Christus Spohn Health System

d/b/a Christus Spohn Brooks Family Health Center,

Appellees

From the 79th District Court, Brooks County, Texas

Trial Court No. 01-04-10460-CV

Honorable Joaquin Villarreal, III, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: April 9, 2003

AFFIRMED

This appeal arises from the trial court's dismissal of a medical malpractice suit.

Appellants Lamar Villa and his family (Villas) filed suit against Appellees Dr. Lubrett

Hargrove (Hargrove) and Christus Spohn Health System d/b/a Christus Spohn Brooks Family

Health Center (Health Center) on April 6, 2001. The Villas presented the appellees with an

expert report on June 12, 2001, within the 180-day deadline prescribed by Article 4590i

§13.01(d). On December 5, 2001, Hargrove filed a motion to dismiss, based on his belief

that the report failed to comply with the expert report requirements iterated in Article 4590i

§13.01(r)(6). On December 7, 2001, the Health Center filed its own motion to dismiss based

on the same reasoning. Following a hearing, the trial court granted the appellees' motions,

dismissing the Villas' causes of action. The Villas now appeal, raising three issues.

Background

On the evening of November 7, 1999, Nora Villa was admitted to Christus Spohn

Brooks Family Health Center and seen by Dr. Lubrett Hargrove. She presented with several

symptoms, including body aches, fever, and chills. Ms. Villa remained at the Health Center

for approximately two hours while several tests were conducted and the results examined.

The test results were consistent with a urinary tract infection (UTI). Hargrove diagnosed Ms.

Villa with a UTI, prescribed an antibiotic and suggested a follow up with Ms. Villa's local

doctor, instructing her to return to the Health Center if needed.

On the morning of November 9, 1999, approximately 32 hours after Ms. Villa visited

the Health Center, she presented at the Falfurrias Medical Clinic and was evaluated by a

physician's assistant. Ms. Villa was suffering from dizziness and vomiting when she arrived

at the Falfurrias Clinic. She was given fluids and a drug for epigastric problems. She was

then discharged with instruction on nourishment and advised to follow up the next day.

Ms. Villa continued to suffer from the same problems and returned to the Falfurrias

Clinic later the same afternoon. She was immediately transferred to Christus Spohn Hospital-Alice. By the time Ms. Villa arrived at the hospital in Alice she was unresponsive. She was

diagnosed with bacterial meningitis and again transferred, this time to Spohn Memorial

Hospital-Corpus Christi. Upon arrival, Ms. Villa was considered brain dead and went into

cardio-respiratory arrest. The physicians were not able to resuscitate her and she was

pronounced dead on November 10, 1999.

Ms. Villa's family filed suit against Hargrove and the Christus Spohn Health System

on April 6, 2001. (1) On June 12, 2001, the Villas presented the appellees with an expert report

from Dr. Lawrence Repsher as required under Article 4590i §13.01(d). On December 5,

2001, Hargrove filed a motion to dismiss, citing the inadequacy of the expert report under

Article 4590i §13.01(r)(6). Two days later, the Health Center did the same, filing its own

motion to dismiss. On December 10, 2001, the Villas filed an amended report, and on

December 14, 2001, they filed a supplemental affidavit regarding the report. After a hearing,

the trial court found the June expert report did not meet the requirements of section 13.01

and dismissed the Villas' causes of action with prejudice as required under the statute. Tex.

Rev. Civ. Stat. Ann. art. 4590i §13.01(d). The Villas now appeal, complaining (1) that

their expert report met the requirements of Article 4590i §13.01 and (2) that applying the

reasoning of American Transitional Care Ctrs. of Texas , Inc. v. Palacios, 46 S.W.3d 873

(Tex. 2001) to their case results in a violation of the equal protection and due process clauses

of the United States Constitution.

Adequacy of Expert Report Under 4590i §13.01

We review the trial court's ruling as to the adequacy of an Article 4590i expert report

under an abuse of discretion standard. Palacios , 46 S.W.3d at 877 ; De Leon v. Vela, 70

S.W.3d 194, 197 (Tex. App.--San Antonio 2001, pet. denied). We may not disturb the trial

court's decision unless that decision is shown to be arbitrary and unreasonable. Morrill v.

Third Coast Emergency Physicians , P.A. , 32 S.W.3d 324, 327 (Tex. App.--San Antonio

2000, pet. denied). A trial court will be deemed to have acted arbitrarily and unreasonably

if it is demonstrated that the trial court could have reached only one decision. De Leon , 70

S.W.3d at 197 ; Morrill , 32 S.W.3d at 327 .

The Texas Medical Liability and Insurance Improvement Act sets forth explicit

requirements for the filing of expert reports. Tex. Rev. Civ. State. Ann. art. 4590i §13.01.

Section 13.01 prescribes the requirements necessary for an expert's report. In their first

issue, the Villas contend Dr. Repshaw's June 12, 2001, report complies with the statutory

requirements and represents a good faith effort to comply with the statutory definition of an

expert report as required by sections 13.01( l ) and 13.01(r)(6). Id.

Under Article 4590i, a medical malpractice plaintiff is required to furnish an expert

report which sets out the standard of care, describes how each defendant breached the

standard, and explains how such breach caused or contributed to the plaintiffs' alleged

injury. Tex. Rev. Stat. Ann. art. 4590i §13.01(d). A copy of the expert's report or reports

must be furnished, within 180 days of filing suit, to each physician or health care provider

against whom a claim is asserted. Id. If the plaintiff fails to provide the report to the

defendant, he must voluntarily nonsuit the action against the physician or health care

provider. Id. An "expert report" is defined in the statute as "a written report by an expert

that provides 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." Id. at §13.01(r)(6).

Pursuant to sections 13.01( l ) and 13.01(r)(6), an expert report must represent a good

faith effort to provide a fair summary of the expert's opinions. De Leon , 70 S.W.3d at 198 .

If it appears to the court after a hearing that the report does not represent a good faith effort

to comply with the definition of an expert report found in subsection (r)(6), the court shall

grant a motion challenging the adequacy of the expert report. Id. at 13.01(l). The expert

report does not need to marshal all of the plaintiff's proof, but it must include the expert's

opinion on each of the elements identified in the statute. Palacios, 46 S.W.3d at 878 ;

Doades v. Syed, 94 S.W.3d 664, 671 (Tex. App.--San Antonio 2002, no pet.). In Palacios ,

the Texas Supreme Court found that an expert report must accomplish two specific goals in

order to meet section 13.01' s requirements. First, the report must inform the defendant of

the specific conduct the plaintiff has called into question. Second, the report must provide

a basis for the trial court to conclude the claims in question have merit. Palacios, 46 S.W.3d

at 879 ; Doades, 94 S.W.3d at 671 . A report that fails to lay out the required elements, simply

stating the expert's conclusions as to the standard of care, breach, and causation, does not

meet these purposes or constitute a good faith effort. Palacios, 46 S.W.3d at 879 ; Doades

94 S.W.3d at 671 . In deciding whether the statutory standard is met, a trial court should stay

within the four corners of the expert report, itself, without considering referenced medical

records or affidavits. Palacios, 46 S.W.3d at 878 ; DeLeon, 70 S.W.3d at 198 .

On June 12, 2001, the Villas presented Dr. Hargrove and the Health Center with a

report from Dr. Lawrence Repsher. The report is set out as follows:

I received your letter of 1 March 2001 and the enclosed medical records of Ms.

Nora Villa. After my review of these records, it is my opinion that she

received substandard care from the Brooks Family Health Center by failing to

recognize imminent sepsis and hospitalizing Ms. Villa and the Alice

Physicians & Surgeons Hospital for not recognizing actual sepsis and having

Ms. Villa urgently transported to the nearest hospital early on the morning of

9 November 1999. It is further my opinion that, had either of these defendants

provided the appropriate care, to an overwhelming probability, Ms. Nora Villa

would be alive and well today.

This brief report fails to meet the requirements of section 13.01(r)(6). First, the report

fails to iterate the applicable standard of care. Repsher does not describe the procedures that

should be followed when a patient with Ms. Villa's symptoms presents to a health care

facility. Indeed, he fails to describe Ms. Villa's condition at all. Instead, Repsher uses

conclusory statements to determine that Ms. Villa received "substandard care." General

conclusory statements about the standard of care applicable to any given case are not in

compliance with section 13.01(r)(6). Palacios, 46 S.W.3d at 880 . Second, Repsher's report

does not explain how the actions of Hargrove or the Health Center breached the applicable

standard of care. Aside from stating that the defendants should have "recognized" imminent

sepsis and "hospitalized" Ms. Villa, Repsher does not explain how each failed to meet the

applicable standard of care. Again, his statements are conclusory and, thus, do not meet the

requirements of section 13.01. Finally, Repsher's report fails to properly address the element

of causation as it applies to this case. The Villas' expert does not link the actions of

Hargrove or the Health Center to Ms. Villa's death. As such, the June 12th report is

inadequate.

In addition, the June 12th report does not mention Dr. Hargrove by name, but, instead,

refers only to the Brooks Family Health Center. The Villas contend this reference, read in

conjunction with medical records which were attached to the report, leads to the inference

that Repsher was including Hargrove in his opinion. As stated above, however, the only

information relevant to a section 13.01 analysis is the report itself. Tex. Rev. Civ. Stat.

Ann. art.4590i §13.01( l ); Palacios, 46 S.W.3d at 878 . Therefore, the report failed to place

Hargrove on notice of the Villas' claims against him.

Because the Villas' June 12th report does not meet the requirements of §13.01(r)(6),

the trial court did not abuse its discretion in dismissing the case with prejudice as provided

in the statute. We overrule the Villas' first issue.

Equal Protection and Due Process

In their second and third issues, the Villas contend their constitutional rights to equal

protection and due process have been violated through the application of the Palacios ruling

to their case. They cite no authority for their contention and are unclear in defining exactly

why they believe their constitutional rights have been violated. The Villas assert the

Palacios opinion does not apply to them because (1) it became final after their first expert

report was filed, (2) the standard of review used in Palacios is a constitutional violation, in

general, and (3) the standard of review used in Palacios deprives them, in particular,

"especially the minor plaintiff," of their individual constitutional rights. The Villas also

complain of the fact that Hargrove and the Health Center waited to file their motions to

dismiss until after the statutory 180 days had passed. We will address each of these points

in order.

The Villas filed their claims against Hargrove and the Health Center on April 6, 2001.

The Texas Supreme Court decided American Transitional Care Ctrs. of Texas , Inc. v.

Palacios , 46 S.W.3d 873 (Tex. 2001), on May 10, 2001. Rehearing was overruled on June

28, 2001. First, the Villas argue the tenets of Palacios should not be retroactively applied

to them because they filed their expert report before that decision became final. It appears,

from their brief, as though the Villas understand Palacios as creating new law. This is an

erroneous interpretation. Palacios is best viewed as a case of statutory interpretation rather

than one of court-made law. Article 4590i went into effect several years before the Villas

filed their claim. Palacios simply reiterates the law codified in section 13.01 and provides

the court's interpretation as to the standard of review to be utilized when examining a report

under the statute. Id. at 877 . Additionally, the Villas fail to cite any case law to support their

contention that the law set out in Palacios is inapplicable to their situation.

The Villas also challenge the constitutionality of the application of an abuse of

discretion standard of review, both generally and as applied to their own specific situation.

Again, however, the Villas fail to cite supporting law or to explain exactly how this standard

violates either the Texas or United States Constitution, thus, failing to present anything for

review. Any argument regarding the statute of limitations applicable to a minor in a wrongful

death case also seems misplaced. The minor in the case at hand filed suit before her

eighteenth birthday, thereby negating any limitations arguments. In addition, the current

dismissal is not based on the statute of limitations, but on the plaintiffs' failure to meet the

statutory requirements for a medical malpractice expert report.

Finally, the Villas make several remarks regarding both Hargrove and the Health

Center's "stealth(y)" decision to wait until the 180-day period for filing an expert report had

run to file their motions to dismiss. They claim the "unequal, disproportionate and deliberate

timing" of the defendants resulted in an unequal application of the law. Again, the Villas do

not cite any authority suggesting that either defendant had a duty to point out deficiencies in

the expert report before the expiration of 180 days. See Doades , 94 S.W.3d at 673 .

Although the Villas contend the defendants' actions left them with no opportunity to correct

any deficiencies in the report, they fail to address the two filing extension provisions

provided by section 13.01.

First, under section 13.01(f), the trial court may, for good cause shown after motion

and hearing , extend any time period specified in subsection (d) of this section for an

additional 30 days. Tex. Rev. Civ. Stat. Ann. art. 4590i §13.01(f) (emphasis added). The

report must then be filed within 210 days of the date the lawsuit was filed. Id. The Villas

filed no motion requesting an extension of time. However, following their argument, they

would have had no reason to request an extension until the defendants filed their motions to

dismiss. Hargrove filed his motion to dismiss on December 5, 2001, more than 210 days

after the Villas filed suit, making §13.01(f) inapplicable to the Villas situation. There is,

however, a second extension provision which would have allowed the Villas to correct their

report even after the 180 days had passed.

Section 13.01(g) provides the second extension, allowing the court the discretion to

grant a 30-day grace period to a claimant who has failed to comply with a deadline

established by subsection (d). Tex. Rev. Civ. Stat. Ann. art. 4590i §13.01(g). In order to

receive this additional time, the claimant must file a motion before any hearing on a motion

by a defendant, and, after a hearing, the court must find the failure of the claimant was not

intentional or the result of conscious indifference but the result of an accident or mistake.

Id. Even if the Villas or their counsel were mistaken as to the expert report requirements

under section 13.01, they had the opportunity, prior to the hearing on the defendants'

motions to dismiss, to file their own motion, requesting the statutory grace period. See

Gutierrez v. Walker , 50 S.W.3d 61, 64-65 (Tex. App.--Corpus Christi 2001, pet. granted).

Because the Villas failed to demonstrate any reason why the application of Palacios

is a constitutional violation and because Hargrove and the Health Center had no affirmative

duty to inform the Villas of deficiencies in the report prior to the end of the 180-day period,

we overrule the Villas' second and third issues.

The Villas' expert report does not meet the requirements of Tex. Rev. Civ. Stat.

Ann. art. 4590i §13.01. In addition, the application of Palacios to the Villas' case is valid,

violating neither the equal protection clause nor the due process clause of the Texas and

United State Constitutions. We therefore affirm the judgment of the trial court.

Paul W. Green, Justice

Publish

1. The Villas also sued Salvador Torres-Torres, P.A., Mauricio B. Teixira, M.D., and Alice Physicians and

Surgeons Hospital, Inc. d/b/a/ Falfurrias Medical Clinic. These parties, however, were nonsuited and are not a part of

this appeal.