Thomas L. Davies, M.D. v. Crystal Flores and Jessie Flores, Individually and as Next Friends for J.F., a Minor

Opinion issued May 24, 2012.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-12-00017-CV

———————————

thomas l. davies, m.d. , Appellant

V.

crystal

flores and jessie flores, individually and as next friends of j.r., a minor , Appellees

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Case No. 2011-30120

MEMORANDUM OPINION

Thomas L. Davies, M.D. appeals from the

trial court’s order overruling his objections to an expert report filed in a health

care liability action against him. Because we conclude that Section 51.014(a)

of the Civil Practices and Remedies Code (CPRC) does not authorize

interlocutory appeal from the trial court’s order, we dismiss the appeal for

lack of jurisdiction.

Background

Crystal Flores gave birth to her son,

Joshua, at a Memorial Hermann Health Care Systems hospital in Northwest

Houston. Dr. Raymond Miro delivered Joshua. During

the delivery, Dr. Miro and other members of the

hospital staff took measures to manage a shoulder dystocia. Crystal and her

husband brought this action against Memorial Hermann and Dr. Miro , alleging that they were negligent in treating the

shoulder dystocia, resulting in a brachial plexus injury to Joshua. On August

31, 2011, the Floreses amended their pleadings to add Dr. Davies, who was

Crystal’s obstetrician and gynecologist.

Pursuant to Chapter 74 of the CPRC, the Floreses

served Davies with an expert report authored by Dr. William Roberts. On October

3, 2011, within twenty-one days after the Floreses served their expert report

on Davies, Davies filed

a document titled, “Defendant Thomas L. Davies, M.D.’s Objections to

Plaintiff’s Expert Report.” Davies complained that Dr. Roberts’s expert report

failed to establish Dr.

Roberts’s qualifications and did not constitute a good faith effort to explain

adequately the standard of care applicable to Davies, Davies’s breach of that

standard, or the causal connection between such a breach and Joshua’s injuries.

Davies did not move for dismissal

of the Floreses’ claims against him or for an award of attorney’s fees. On December 16, 2011, less than 120

days after the Floreses filed their claims against Davies, the trial court

overruled Davies’s objections to the Floreses’ expert report. [1]

This appeal ensued. [2]

Jurisdiction

We must first determine whether we have jurisdiction to

consider the merits of this appeal. Jurisdiction is a question of law, which we

review de novo. State v. Holland ,

221 S.W.3d 639, 642 (Tex. 2007). Texas appellate courts have jurisdiction to

review a trial court’s order by appeal if the order constitutes a final

judgment or if a statute authorizes an interlocutory appeal. Lehmann v. Har -Con

Corp. , 39 S.W.3d 191, 195 (Tex. 2001); Stary

v. DeBord , 967 S.W.2d 352 , 352−53 (Tex.

1998). Because the trial court’s order is not a final judgment, we must

determine whether interlocutory appeal is authorized by statute. When reviewing

a statutory grant of interlocutory appellate jurisdiction, we look to the legislature’s

intent as expressed in the statute’s plain words. See Tex. A & M Univ.

Sys. v. Koseoglu , 233 S.W.3d 835 , 840−41 (Tex. 2007) .

We strictly construe statutes authorizing interlocutory appeal as “‘narrow

exception[s] to the general rule that only final judgments are appealable.’” Id. at 841 (quoting Bally Total Fitness Corp. v. Jackson , 53 S.W.3d 352, 355 (Tex.

2001)); see also Schlumberger Tech. Corp.

v. Baker Hughes Inc. , 355 S.W.3d 791, 796 (Tex. App.—Houston [1st Dist.]

2011, no pet.).

A. Interlocutory

appeal from orders on expert reports in health care liability claims

The trial court’s order relates to an expert report in a health

care liability claim, which is governed by section 74.351 of the CPRC. See Tex.

Civ. Prac . & Rem. Code Ann. §74.351 (West

2011) (setting forth expert report requirements in health care liability

actions). Section 74.351 of the CPRC requires a health care liability claimant

to serve each party with an expert report containing certain information mandated

under the statute, within 120 days after filing an original petition. Id. § 74.351(a). Under subsection (b) of

the statute, if a health care liability claimant fails to file the required

report within 120 days—either because the claimant failed to file any expert

report or because the claimant filed an expert report that failed to comply

with the statute—a health care defendant may move for (1) an award of

attorney’s fees and costs incurred by the physician and (2) dismissal of the

claims against the physician with prejudice. Id. § 74.351(b)(1), (2); see Lewis v. Funderburk ,

253 S.W.3d 204 , 207–08 (Tex. 2008) (holding that subsection (b) contemplates

dismissal when expert report is timely filed but inadequate to satisfy statute

as well as when no expert report is filed). If the claimant failed to file any

expert report, the trial court must grant this relief. See Ogletree v. Matthews , 262 S.W.3d 316 ,

319−20 (Tex. 2007) (“If no report is served within the 120 day deadline

provided by 74.351(a), the Legislature denied trial courts the discretion to

deny motions to dismiss or grant extensions[.]”); see also Tex. Civ. Prac . & Rem. Code Ann. §74.351(b). A defendant

is not entitled to relief under subsection (b) until 120 days after the claims

against him are filed. See Lewis , 253 S.W.3d at 207 . If the claimant filed a

timely-but-deficient expert report, the trial court may grant a thirty-day

extension of time to cure the deficiencies in the expert report pursuant to

subsection (c). Tex. Civ. Prac . & Rem. Code Ann. § 74.351(b), (c).

Subsection ( l )

provides that a trial court “shall grant a motion challenging the adequacy of

an expert report only if it appears to the court, after hearing, that the

report does not represent an objective good faith effort to comply” with the

statute’s requirements for the content of an expert report. Id. § 74.351( l ).

The CPRC statutorily authorizes interlocutory appeals from

two types of orders relating to expert reports in health care liability claims:

·

orders denying, in

whole or in part, a motion filed under subsection (b) of section 74.351,

exclusive of orders granting a thirty-day extension under subsection (c), [3]

and

·

orders granting a motion filed under subsection ( l ) of section 74.351.

Tex. Civ. Prac . & Rem.

Code Ann. § 51.014(a)(9), (10)

(West Supp. 2011). Thus, the CPRC authorizes interlocutory appeal from an order

on a subsection (b) motion only when the trial court denies relief (and does not grant a proper extension of time) and from

an order on a subsection ( l ) motion

only when the trial court grants relief.

See id. ; Lewis , 253 S.W.3d at 207 .

B. The trial

court’s order did not deny relief requested pursuant to section 74.351(b)

Davies contends the order at issue falls under section

51.014(a)(9)—i.e., that the trial court’s order overruling his objections to

the Floreses’ expert report is an order that “denies all or part of the relief

sought by a motion under Section 74.351(b)[.]” Id. § 51.014(a)(9). The Floreses assert that the trial court’s

order does not deny relief sought by a motion under subsection (b) because

Davies’s motion did not request any of the relief provided for in subsection

(b)—attorney’s fees and dismissal with prejudice. See id. § 74.351(b). Davies responds that the trial court’s order

overruling his objections “implicitly denied his motion to dismiss by denying

the ground upon which the motion would be based.” We disagree with Davies’s

contention that the trial court’s order implicitly ruled on a motion to dismiss

that had not been filed, and we hold that section 51.014(a)(9) does not

authorize an interlocutory appeal from an order that does not deny any of the

relief addressed in section 74.351(b).

In Lewis , the

Texas Supreme Court addressed a split in the courts of appeals over whether the

denial of a motion to dismiss of a health care liability claim on the ground

that the expert report was inadequate under section 74.351—as opposed to the

ground that no expert report was timely filed—constituted a denial of relief

under a subsection (b) motion, such that courts of appeals had jurisdiction over

an interlocutory appeal from the order denying relief. 253

S.W.3d at 206–08. Two courts of appeals had held that a motion

challenging the adequacy of a health care liability expert report was a motion

under subsection ( l ), rather than

subsection (b). See id. at 206 . The Texas Supreme Court disapproved of those

opinions, holding that the phrase “if an expert report has not been served” in

subsection (b) included a situation when “an expert report has not been served

[within 120 days] because elements of the report are found deficient,” as

expressly contemplated by subsection (c). Id.

at 207−08. Thus, if a health care liability defendant moves for relief

under subsection (b), the denial of such relief is subject to interlocutory

appeal, regardless of whether the basis for the relief sought is the failure to

file a timely expert report or asserted deficiencies in a timely filed expert

report. See id. at

208 .

In determining whether the motion denied by the trial court

constituted a motion for relief under subsection (b), the Lewis Court considered the relief requested in the motion:

We disagree . . . that Dr. Lewis’s motion, which sought

dismissal and attorney’s fees, falls under subpart ( l ). Only subpart

(b) provides for dismissal and fees. Subpart ( l ) provides for

challenges to inadequate reports, but says nothing about dismissal or fees.

That is because some challenges—specifically those filed within the first 120

days— cannot seek dismissal or fees until the 120–day window has closed.

Only when that window has closed and no report has been filed can a defendant

move for dismissal and fees under subpart (b).

Id. at 207. Here, by contrast, Davies’s filing did not request

dismissal of the claims against him or an award of attorney’s fees. See Acad. of Oriental Med., L.L.C. v. Andra , 173 S.W.3d 184, 186 (Tex. App.—Austin 2005,

no pet.) (holding that order denying

motion to strike expert report based on asserted deficiencies in report was not

denial of relief sought under section 74.351(b) because motion did not request

dismissal or attorney’s fees and noting that 120-day deadline had not passed at

time motion was filed). He therefore did not request relief under subsection

(b). See id. ; see also Tex. Civ. Prac . & Rem. Code Ann. § 74.351(b).

In fact, as contemplated by the Lewis Court, subsection (b) does not authorize relief for Davies at

the time he filed his objections because 120 days had not passed since the

Floreses filed their claims against Davies. [4]

See Lewis , 253 S.W.3d at 207 ; Tex.

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

Davies seeks interlocutory review of an “implicit” ruling on a motion that he

had not filed and was not yet entitled to file under the statute. The Texas

Supreme Court has counseled against interlocutory review of a ruling on

asserted deficiencies in a health care liability claimant’s expert report when,

as here, the claimant may cure any asserted deficiencies after the ruling. [5]

See Ogletree , 262 S.W.3d at 321 (“If [the

defendant’s] position were correct, a defendant would be entitled to

immediately appeal a trial court’s order denying dismissal any time a report

failed to meet the strict statutory guidelines, even though the statute permits

a plaintiff to cure defects of that nature. . . . If a defendant could

immediately (and prematurely) appeal, the court of appeals would address the

report’s sufficiency while its deficiencies were presumably being cured at the

trial court level, an illogical and wasteful result.”); Scoresby v. Santillan , 346 S.W.3d 546, 556 (Tex. 2011) ( “ The Legislature could reasonably have determined that [section 74.351’s] purpose is served by an interlocutory appeal

from the denial of a motion to dismiss for want of an adequate expert report,

but as we observed in Ogletree , permitting two such appeals—one

before the thirty-day cure period and one after—is simply wasteful.”); see also Badiga v. Lopez ,

274 S.W.3d 681, 684 (Tex. 2009) (same).

Because Davies did not request

dismissal of the claims against him or an award of attorney’s fees—the relief

authorized under section 74.351(b)—we conclude that the trial court’s order overruling

his objections did not “den[y] all or part of the relief sought by a motion

under Section 74.351(b),” under the plain meaning of those words. Tex. Civ. Prac .

& Rem. Code Ann. § 51.014(a)(9); see

Andra , 173 S.W.3d at 186 . We therefore hold that

section 51.014(a)(9) of the CPRC does not grant this Court jurisdiction to

consider the merits of Davies’s appeal. See

id.

Conclusion

We hold that section 51.014 of the CPRC

does not authorize an interlocutory appeal from the trial court’s order. We

grant the Floreses ’ motion to dismiss and dismiss

this appeal for lack of jurisdiction.

Harvey

Brown

Justice

Panel

consists of Justices Bland, Massengale, and Brown.

[1]

The other health care liability

defendants also objected to the adequacy of the Floreses’ expert report, and

the trial court overruled their objections as well. Those defendants have not

filed an interlocutory appeal from the trial court’s orders.

[2]

The Floreses later filed a

supplemental expert report, to which Davies also objected. The order on appeal

does not address the supplemental report.

[3] A

defendant is not entitled to interlocutory appeal from trial court’s denial of

a motion to dismiss a health care liability claim based on deficiencies in the

expert report if trial court grants a thirty-day extension of time to cure the

deficiencies pursuant to subsection (c). See Ogletree ,

262 S.W.3d at 321 ; Morris v. Umberson , 312 S.W.3d 763 ,

767–71 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Subsection (c), however, does not

authorize an extension of time when no expert report has been filed, and

interlocutory appeal is available for an order denying dismissal and purporting

to grant an extension of time when no expert report was timely filed. See Scoresby v. Santillan ,

346 S.W.3d 546, 555 (Tex. 2011); Badiga v. Lopez ,

274 S.W.3d 681, 685 (Tex. 2009).

[4]

The Floreses

note that, “had the trial court sustained Dr. Davies’s objections, [they] would

certainly have had the opportunity to provide another report.”

[5] Davies

states that requiring him to file a motion to dismiss after the expiration of

120 days is “redundant” in light of the trial court’s overruling of his

objections. We note that the statute prescribes the procedure for challenging

an expert report and this procedure has been followed in other cases. HealthSouth of Houston, Inc. v. Parks , 329 S.W.3d 885, 888 (Tex.

App.—Beaumont 2010, pet. denied) (reversing trial court’s order denying motion

to dismiss based on inadequacy of health care liability claimant’s expert

report entered on motion filed after expiration of 120-day period when trial

court had, within 120-day period, overruled defendant’s objections to adequacy

of report); Walters v. Hudoba , No.

02-08-00196-CV, 2009 WL 161079 , at *2 (Tex. App.—Fort Worth Jan. 22, 2009, no

pet.) ( mem . op.) (affirming

trial court’s order denying motion to dismiss based on inadequacy of health

care liability claimant’s expert report entered on motion to dismiss filed

after expiration of 120-day period when trial court had, within 120-day period,

overruled defendant’s objections to adequacy of report). We also note that the

statutory requirement that defendants file objections to expert reports within

twenty-one days enables claimants to file their expert reports promptly and

have any complaints about the adequacy of the reports decided by the trial

court within the 120-day period in which the claimants could supplement their

expert reports or file additional reports without first seeking an extension of

time. See Constancio

v. Bray , 266 S.W.3d 149, 160 (Tex. App.—Austin 2008, no pet.) (“[I]f a

report is served, objected to, and found deficient by the district court before

the 120-day deadline has passed, the claimant has the remainder of the 120 days

in which he may decide to cure the deficiencies of the report, serve an

entirely new report, or do nothing before the defendant physician or health

care provider may then file a motion to dismiss the claim.”).